Workshet 4

Question 1

What are the two theories of the relationship between municipal law and international law

Answer 1

Monist and dualist

Question 2

The relationship between international law and municipal law give rise to two problems. What are they?

Answer 2

1. The theoretical problem: whether international law and municipal law are part of a universal legal order (monist theory) or whether they form two separate and distinct systems of law the dualist theory)
2. The practical problem: how to solve a conflict between international and municipal law before an international court or municipal court

Question 3

What is doctrine for dualism?

Answer 3

Doctrine of transformation

Question 4

What is dualism?

Answer 4

Dualism posits that international law and municipal law are independent systems, separate from each other and having different spheres of application

Question 5

What are the views that dualism is based on?

Answer 5

1. International law is the law applicable between sovereign states
2. Municipal law applies with a state to regulate the activities of its citizens

Question 6

What does the doctrine of transformation represent?

Answer 6

The dualist position that international law has no binding effect on municipal law unless it expressly and specifically transformed into municipal ear by an act of parliament

Question 7

“Under the doctrine of transformation, a treaty, when ratified, creates obligations addressed to the state, not individuals.
What are the implications of this?

Answer 7

1, when international law and domestic law regulate the same subject matter and there is a conflict, a municipal court would apply municipal law- as a result the state may be in breach of international law but this will be settled by diplomatic protest or a judgement of an international court
2. An international treaty requires statutory incorporation into municipal law in order to be part of municipal law and be enforceable by individual states - once a treaty is implemented into national law, it is applied by national courts as any other municipal provision and not as an International one

Question 8

What is monism?

Answer 8

Both international law and municipal law are apart of the same legal order, and emphasizes the supremacy of international law. Any change in international law automatically changes municipal law

Question 9

What is the doctrine associated with monism?

Answer 9

The doctrine of incorporation

Question 10

What does the doctrine of incorporation say?

Answer 10

Rules of international law form part of municipal law without the need for further legislative action at the domestic level

Question 11

When municipal law is brought before international courts and tribunals, what is the general rule?

Answer 11

International law generally prevails