HI - Week VI - International Law and Municipal Law

International Law and
Municipal Law

The Theories
• Dualism
• Monoism

Dualism
• Exist separately and cannot
purport to have an effect on, or
overrule, the other
• Consent of states
• Triepel and Strupp
– supremacy of the State
– wide differences between the two
functioning orders

Dualism
• International law employed
between states
• Municipal law employed by

state

Monoism
• Unitary perception of the law and
understands both laws as forming part of
one and the same legal order
• Two categories :
– those who uphold a strong ethical position for
human rights exp. Lauterpacht
– those who uphold on formalistic logical
grounds exp. Kelsen

Monoism
• Kelsen :
– international law was supreme over municipal
law
– municipal law inconsistent with int’l law was
automatically null and void and international
law rules were directly applicable in the
domestic sphere of states

– willingness of states to provide a common
factor in the generation of both municipal and
international law

Differentiation of Municipal and
International law from dualism
perspectives :
Municipal law
 customary and
written law
 individuals within a
country
 binding

International law
 Customary and
consent of states
 states as int’l
community

Monoism v. Dualism
• Fitzmaurice :
the entire monist – dualist controversy is unreal,
artificial and strictly beside the point, because it
assumes something that has to exist for there to
be any controversy at all – and which in fact
does not exit – namely a common field in which
the two legal orders under discussion both
simultaneously have their spheres of activity

The Role of Municipal Law in
International Law - I
• National law has no effect on the duties or
obligations of states in int’l level
• A state cannot stand and justify itself by,
when it breaches international obligation,
referring to its domestic legal situation
• Article 27 of Vienna Convention on the
Law of Treaties, 1969  to perform in
good faith

Article 27 of the 1969 Vienna
Convention on the Law of Treaties :
A party may not invoke the provisions of its
internal law as justifications for its failure
to perform a treaty

The Role of Municipal Law in
International Law - II
• Alabama case 1872  US v. Britain
• Supremacy of international law
• Municipal law is vital to the workings of
international law
• Municipal law is a medium to express the
opinion of states on international matters

The Role of Municipal Law in
International Law - III
• Municipal law can be utilized as evidence
of compliance or non compliance with

international obligations
• Nevertheless, municipal law cannot be
applied to evade an international
obligation

The Role of Municipal Law in
International Law - IV
• Custom and general rules
– The recognition is laid down in advance in the
constitution or is gradually formulated by the
national courts

• Treaties
–

need ratification to be applied by the
authoritative body

The attitude of International law to
municipal law I

• Municipal law as evidence of international
custom or of general principles of law
• Int’l law leaves certain question to be
decided by municipal law
• Int’l Law leaves the method of its
application to the domestic jurisdiction of
states

The attitude of International law to
municipal law II
• Transformation doctrine  int’l law needs
to be transformed into municipal law
before it can have any effect within the
domestic jurisdiction  treaties
• Incorporation doctrine  int’l law is part of
the municipal law automatically without the
necessity of ratification procedure 
customary int’l law

Triquet v. Bath

(1764) I
• Domestic servant to Bavarian Minister to Great
Britain
• Incorporation doctrine was applied before the
case
• English law overrule diplomatic immunity which
ruled in customary int’l law?
• Thus apply without an Act of Parliament
• Conclusion : English Court could apply CIL
where English Law was silent on the point of that
issue

Triquet v. Bath
(1764) II
• Lord Mansfield : the privilege of foreign
ministers and their domestic servants
depends upon the law of nations
• Lord Talbot : the law of nations, in its full
extent was part of the law of England

West Rand Central Gold
Mining Co. V. R (1905) I
• South African Republic took over the property of
a British company in a way contrary to the law of
the Republic
• In 1900, British Government annexed the
Republic during the Boer War (1899 – 1902)
• The company claimed the compensation of its
loss before the court
• Should the successor be liable for the financial
obligations upon its predecessor conduct?

West Rand Central Gold
Mining Co. V. R (1905) II
• Int’l law imposed no such liability
• The court rejected the argument that the
conquering state was liable in int’l law for the
financial obligations of its predecessor
• No need to impose such rule as part of English
Law

• Lord Averstone : consent of civilized nations
must also be consent to Britain, however, this
must condition must be satisfied by evidence of
recognition and state practice

Sei Fuji v. California
(1952) I
• A Japanese bought a property in California
• The conduct itself had been escheated to
the State since aliens had no right to
acquire land.
• No treaties between the two state to
legalize the right to own land
• Is the California Alien Land Law valid to
this case?

Sei Fuji v. California
(1952) II
• The plaintiff’s argument was that the Alien
Land Law has been superseded by the

UN Charter  human rights issue 
discrimination
• U.S Constitution art VI a, a treaty doesn’t
automatically supersede local laws…
unless the treaty provisions are selfexecuting