Is the Dualist-Monist controversy in International Law simply

a fiction?
The primary objective of article is to judge or regard that controversy of
Dualist-Monist theories of International law is simple a fiction.
A theoretical account of this issue should be able to provide answer to at
least these questions. Firstly, what is the meaning of these theories of
International Law? Secondly, what caused the -above mentioned-
controversies of these theories? And finally, should we consider this
controversy as a fictional? For an appropriate answer to the questions
above, I consider to be necessary to outline and examine leading
arguments of these schools, and on these grounds to take a final
statement in concluding paragraph of work.
THEORY OF MONISM
According to Dixon, the monist theory supposes that international law
and national law are simply two components of a single body of
knowledge called 'law'. 'Law' is seen as a single entity of which 'national'
and 'international' versions are merely particular manifestation. In the
case of conflicts between the two systems, international law is said to
prevail. In this view, the International Law is supposed to be supreme,
but in cases of conflicts, there are several different explanations as to
why this should be so.
The first explanation is represented by Hans Kelson (monist-positivist),
who sees the superiority of international law as a direct consequence of
his "basic norm" of all law. This basic norm (fundamental principle from
all law gains its validity) is that 'state should behave as they customarily
have behaved'. As a consequence International Law is representing
a higher legal order and as such supreme, because is derived from the
practice of states and national law is derived from the states as
established in international law. The second explanation was given by
Hersch Lauterpacht, who sees international law as a superior, because it
offers the best guarantee for the human rights of individuals, the 'state'
itself is seen as a collection of individuals rather than a legal entity in its
own. In this view the international law prevails, because it is the
guarantor of individual liberty. The last explanation is based on monist-
naturalist view, which sees the superiority of international law in natural
law, so there is a hierarchy of legal orders, with natural law at the
summit, followed by international law, and followed by national law.
These diverse opinions have in common the basic monistic tenet that
international law and national law are part of the same hierarchical legal
order, its norms must be ranked in order of priority, and in this sense
the international law is superior.
THEORY OF DUALISM
Contrary of monist theory, dualism denies that international law and
national law operate in the same sphere, although it does accept that
they deal with the same subject matter. But according to Malenovsk ,
the international and national laws are two different and separate
systems, which are based not only upon different jurisdictions and
sanction bodies, but also upon the different sources and the different
subject of matter . According to Tripel, international law governs
relationship between states, whereas national law deals with rights and
obligations of individuals within state .
Dualism considers international law and national law as independent of
each other , and both systems are regarded as mutually exclusive and
are therefore generally not able to get into conflict with each other.
Similarly, according to one of the exponents of this theory, Anzilotti, the
systems are so different, that no conflict between them is possible ,
however, most of the dualists would assume that municipal law would
be applied.
THE QUESTION OF DIFFERENT SUBJECT MATTER (Fitzmaurice
and Anzilotti)
As mentioned above, both monism and dualism accept that international
law deal with the same subject of matter, but in the theory of
international law exist another view, promoted in Fitzmaurice and
Anzilotti.
Fitzmaurice considers the whole controversy displayed above".as unreal,
artificial and strictly beside the point." This radical view has been
propounded by Sir Gerald Fitzmaurice and became know as the
'Fitzmaurice compromise' . He assumed that since the two systems,
international and national law, do not operate in common field, they can
never come into conflict. Each one of them is supreme in its own
domain, thereby 'any apparent conflict in the domestic field is
automatically settled by the domestic conflict rules of the forum and any
conflict in the international field would be resolved by international law' .
He simply denies that there is a common field as well as a common
subject matter, which is considered by domestic law and international
law simultaneously. He compares the relationship between domestic and
international law with the relationship between the system of law of two
sovereign countries. In a case of a conflict between both systems there
are conflict rules which explain how the specific conflict has to be settled
before the national courts. Fitzmaurice then take a view, that ".it is
useless to discuss the supremacy of international law in the
international field as it supreme simply because of the fact that it is the
only law that there is. It is supremacy not arising from the content but
from the field of operation."
According to this view, the controversy between international law and
national law is like the relationship between English law and French law,
they never contradict each other as systems of law. It may be that the
'obligations' of each system come into conflict, but then which obligation
is to prevail is to be settled by the 'conflict of laws' rules of particular
court. So rules of national law may or may not say that international law
is to prevail, but the solution is still dictated by national law.
CONCLUSION
Which of these theories should be regarded as right or wrong? It is
almost impossible to find a correct answer, because of very wide
theoretical scope of this question. But in spite of this fact it is possible to
consider the issue, that both theories are rather part of wide debate
about a validity of international law as a legal system, than controversial
doctrines, which controvert each other.
Another issue concerning the topic of this coursework deals with the
relevant case law. It is obvious, that many courts or tribunals do not
expressly apply monist or dualist theory. In case Alabama Claims
Arbitration , the ICJ held, that ".a piece of national law can not be
regarded as an excuse for the breach of obligations given by
international law." In another case this court also held, that ".it is the
duty of every state to bring its domestic law in line with international
law."
It must therefore be concluded, that nor municipal courts or tribunals
do not apply monist or dualist theory in reaching their decision, and as
was mentioned above, the controversy between monism and dualism is
probably rally as unreal, artificial and strictly beside the point. So
therefore we may conclude that the nature of Dualist-Monist
controversy in international law could be considered as a fictional.
In what circumstances and to what extent do British courts
apply rules of Public International Law?
INTRODUCTION In this part of the coursework, I am going to
outline the way in which Public International Law is applied by
British courts. The primary objective here is to consider the
circumstances and extent of applying of these rules. For an
appropriate examination of this topic, I consider to introduce
relevant case law and concerning sources of Public International
Law. Concluding paragraph of this part of the coursework will try
to summarise all valid points and arguments concerning
circumstances and extent of this applying and on those grounds
to take a final statement.
PUBLIC INTERNATIONAL LAW AND THE PRACTICE OF BRITISH
COURTS
Do the rules of public international law bind the domestic legislator,
judge or official? If so to what extent? How does the domestic judge go
about determining the content of the rules of public international law?
These questions raise a host of issues whose answer depends very
much upon the philosophical, political and practical premises.1
The question of the relationship between international and municipal law
is resolved in variety of ways. Every state has its own rule of internal
constitutional law and specific statutory provisions for dealing with this
matter.
There are different approaches as to the customary international law
and international treaties the United Kingdom is a party too. According
to Dixon2, there are two different ways of explaining the use of
international law in domestic courts, the doctrine of incorporation and
the doctrine of transformation.
THE DOCTRINE OF INCORPORATION
The dominant principle in the application of customary international law
is based on a monistic approach3 and can be characterised as the
doctrine of incorporation4. Basically this doctrine states that a specific
rule of international law becomes part of the national law without the
need for express adoption.5 As a result the domestic courts have to
apply a certain rule of international law as long as they there is no
explicit contradicting piece of law or judgement.
THE DOCTRINE OF TRANSFORMATION
Differently from the latter theory the transformation doctrine stipulates,
that rules of international law do not became part of national law until
they have been expressly adopted by the state.6
The difference between incorporation and transformation is that the
former adopts international law into national law just because it is
international law, whereas the latter requires a deliberate act on the
part of the state concerned. It is clear, that whether any states adopts
the incorporation or transformation doctrine is to be determined by its
own national law, usually its 'constitution'.7
THE SOURCES OF INTERNATIONAL LAW IN THE LIGHT OF
RELEVANT CASE LAW
According to the primary objective of this part of the coursework, it is
necessary to consider the questions concerning applicability in the light
of particular sources of Public International Law, such as Customary
International Law and Law of the Treaties.
CUSTOMARY INTERNATIONAL LAW
According to Brownlie8, one of the dominant principle in British law is,
that customary international law could be considered as a part of the
British Law in so far as it does not conflict with any act of Parliament or
a judicial decision. This view is also supported by subsequent British
case law.9
This may be seen as the acceptation of the incorporation theory. On the
other hand, one may argue, that there are cases, which seem as the
application of opposite theory, theory of transformation. In Franconia
Case10 the court had to rule whether a British court has jurisdiction
concerning an accident on the sea. In his opinion Cockburn stipulated
two requirements, the need for evidence of assent and the constitutional
consideration that British courts could not apply what would practically
amount to a new law without usurping the province of legislation.11
This view was also supported by subsequent case law.12
According to the view in Chung Chi v The King13, where the Court
declared that ".the courts acknowledge the existence of a body of rules
which nations accept amongst themselves". This is generally regarded
as statement in favour of the incorporation theory. This view was then
supported in Tin council case14 and in other cases15, so we here may
conclude, that the doctrine of incorporation has been generally
accepted, but not without any exception.
THE LAW OF THE TREATIES
According to Wallace16, a treaty does not become part of the British
domestic law, unless the treaty is specially incorporated by a legislative
measure. The power to make treaties is an executive function, which
goes along with the royal prerogative. Since there is no legislative
consent required it is necessary to require an enabling act of Parliament
to ensure that there is no abuse of power by the executive authority. As
a result of such a possible abuse there might be a legislative measure
that effects domestic subjects, which comes into force without the usual
parliamentary procedures.17
There are several problems related to the incorporation of treaties. Due
to the word limitation of this coursework, I am going to examine only a
few of them.
The main principle that governs the application of treaties in the United
Kingdom is that in case of conflict statute prevails over treaty. This
constitutional rule is accompanied by the rule of construction described
above. Accordingly, there is a distinction between statutes enacting the
treaty, and statutes that intend to give effect to the terms of the treaty,
and those dealing with the same subject-matter but not enacting the
treaty itself.
If the treaty forms an integral part of the enabling the Act, being
attached to it as a Schedule, the treaty and the Act are as one. There is
no difference between them so the interpretation of the Act and the
treaty must be same as well18. In James Buchanan Case19 the court
stated that ". in interpreting an Act it should apply the rules appropriate
to the interpretation of an international convention, by reason that in
reality it was interpreting the treaty itself."
On this occasion the court developed three principles20, only when the
provisions of the statute are clear and unambiguous and require an
interpretation, the court shall follow the Act21. If the domestic
legislation is not clear and is reasonably capable of more than one
meaning, the treaty then becomes relevant and the meaning that is
consonant with it would be preferred, having in mind the rule of
construction. There might also be a case where the Parliament does not
make any reference to the treaty but there is extrinsic evidence that the
enactment was intended. The court may then resort to the treaty for aid
in interpretation of the statute22. According to unenacted treaties, the
constitutional rule in this example would entail that an unenacted treaty
is without legal effect in the UK. It cannot be used to create and
determine rights and obligations of the parties in national law23.
CONCLUSION
It has been shown in the discussion above that British courts have
adopted different approaches in applying the rules of Public
International Law. It is unfortunate, that UK courts are treating
international law very differently from the way it treats its own law or,
indeed, the domestic law of another country. Due to the reluctance of
judges, the British courts are not always prepared to regard
international law as a system of law in its own right. According to the
customary international law, that is in question the courts will usually
take the view close to the incorporation doctrine. On the other hand, the
very different approach is taken towards the treaty law. There the
doctrine of transformation is more relevant, in order to guard the
Parliament sovereignty.
BIBLIOGRAPHY
Dixon, M., "Textbook on International Law", (3rd Edition, London,
1996), Chapter 4
Brownlie, I., "Principles of International Law", (5th Edition, Oxford,
1998), Chapter 2
Harris, D. J., "Cases and Materials on International Law", (5th Edition,
London, 1998), Chapter 3
MacLean, R. M., "Public International Law", (1st Edition, London, 1997),
Chapter xxx
Malenovsk, J., "Mezinrodn prvo veejn", (Brno, 1993), Chapter 5
Shearer, I.; Starke, A., "International Law", (11th Edition, London,
1994), Chapter xxx
Wallace, R., "International Law", (xxx), Chapter
Williams S. A., de Mestral, A.L.C., "An introduction to International
Law", (Toronto, 1979), Chapter 2