CSS International Law Solved Paper 2012 Question 3

'The way in which a State approaches international law will depend on whether it adheres to the monistic or dualistic school of thought'. Examine this quotation with examples.

Introduction

Interdependence and the close-knit character of contemporary international commercial and political society ensures that any action of a state could have profound repercussions upon the system as a whole and the decisions under consideration by other states. This has led to an increasing interpenetration of international law and domestic law across a number of fields, such as human rights, environmental and international investment law, where at the least the same topic is subject to regulation at both the domestic and the international level. However, different states have different ways of approaching the same issue as some give preference to municipal law over international law and vice versa.

2. International Law and Municipal Law

With the rise and extension of international law, questions begin to arise paralleling the role played by the state within the international system and concerned with the relationship between the internal legal order of a particular country and the rules and principles governing the international community as a whole.

Municipal law governs the domestic aspects of government and deals with issues between individuals, and between individuals and the administrative apparatus, while international law focuses primarily upon the relations between states.

There are many instances where problems can emerge and lead to difficulties between the two systems. In a case before a municipal court a rule of international law may be brought forward as a defence to a charge, as for example in R v. 'ones, where the defence of seeking to prevent a greater crime was claimed with regard to the alleged offence of criminal damage.

Further, there are cases where the same situation comes before both national and international courts, which may refer to each other's decisions in a complex process of interaction. For example, the failure of the US to allow imprisoned foreign nationals access to consular assistance in violation of the Vienna Convention on Consular Relations, 1963 was the subject of case-law before the International Court of Justice, the Inter- American Court of Human Rights and US courts.

3. Monism and Dualism

The conventional wisdom in international law is that a state can accept and integrate international law into the domestic system in one of two ways.

i. Monism:

In a monist legal system, international law is considered joined with and part of the internal legal order of a state. Under a monist model, international law serves not merely as a legal framework to guide state-to- state relations in the international sphere, but as a source of law integrated into and superior to domestic law. As such, a properly ratified or accepted treaty forms part of the national legal regime. An important consequence of this understanding of the role of international law is that it may be applied and enforced directly in domestic courts without the necessity of domestic implementation. The monist view is attributed most often to the work of Austrian legal scholar Hans Kelsen, who advocated in the 1920s for the primacy of international law as a derivative of natural law, rather than as merely an expression of the individual decisions of states to be bound by certain norms through customary practice. Ultimately, Kelsen's monist theory was intended to promote international peace by creating binding obligations enforceable against state actors in formal international justice institutions, as indicated in his famous work, Peace Through Law (1944).

ii. Dualism: Under a dualist model, there is a dichotomy between international legal

obligations that states as sovereigns agree to recognize in their foreign relations, and domestic legal rules that are binding in internal relationships between the state and its citizens or subjects.

Accordingly, international law can only have binding legal force at the domestic level if it is implemented at the national or local level. One of the most notable proponents of the dualist theory of international law was German scholar Heinrich Triepel, who argued that international law was a manifestation of the "common will" of sovereign states. As such, there was a complete separation between international law and state law.

4. Critical Analysis: Flexible State Approaches to International Law

Most nations have a blend of monist and dualist approaches to international law. The status of international law in the United States reflects this mix of approaches. In terms of constitutional sources of authority, Article VI of the United States Constitution clearly states that the '"Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding." This express incorporation of treaties into binding domestic law was complemented by the understanding that customary international law 'tis part of our law," as famously noted in the United States Supreme Court's decision in The Paquete Habana case (1900).

With the advent of formal international institutions in the 20th century and the explosion in the number, variety, and scope of international agreements, however, the United States has adopted an increasingly dualist approach to the place of international law in the domestic sphere.

On a more practical level, in the wake of the United States Supreme Court's decision in Medellin v. Texas (2008) involving the domestic enforceability of the Vienna Convention of Consular Affairs, and in the Guantanamo Bay detainee cases involving the domestic application of the Geneva Conventions, translation of treaty obligations into judicially enforceable rules often turns on whether a treaty obligation is regarded as self-executing or non-self-executing. Thus, states have become flexible in their approach to international law with the proliferation of international institutions.