Has the Controversy between the Superiority of International Law and Municipal Law been Resolved in Theory and Practice?

Abstract

The issue arising out of the relationship between International law and municipal law remains a topic of controversy[1] among legal scholars and has caused difficulties especially for domestic judges[2] though; in practice the controversy has been resolved within the domestic jurisdiction of each state[3]. As a result of the issue of superiority between International law and municipal law, different schools of thought have emerged. These are the Monist and Dualist schools of thought.[4] Within the monist school of thought, there are sub-categories of schools.[5]

The Naturalist Monist School as represented by Lauterpacht holds the view that international law is superior to municipal law on the basis that the former offers better protection in respect of human rights.[6] The Radical Monist School of thought is represented by Kelsen who holds the view that international law is superior on a formalistic doctrine of the grundnorm.[7] The Policy-Oriented Monist encompasses post-colonial African states and the new democratic blocks of the Eastern Europe.[8]

On the other hand, the Dualist school of thought has proponent like Triepal and

Anzilloti.[9] The dualists are of the view that international law and municipal law are two different systems of law,[10] dualist take the position that international law embodies rules that regulates activities of states within the comity of nations while municipal law governs the domestic activities of states.[11]

According to the dualist, international law and municipal law can never be in conflict[12] and where there is a conflict between the two systems, municipal law will prevail on the ground that international law is given effect to operate domestically by municipal law.[13] The exponents of the dualist doctrine maintain that the sovereignty of states is clearly provided for in Article 2(4) (7) of the United Nations Charter.

[1] B.R. Opeskin, ‘Constitutional Modelling: Domestic Effect of International Law in Commonwealth Countries: Part1P.L. 2000, Win, 607-626; S.L.Paulson, ‘The Theory of Public Law in Germany 1914-1945’, OJLS 2005 25 (525)

[2] Manisuli Ssenyonjo, ‘Accountability of Non-State Actors in Uganda for War Crimes and Human Rights Violations: Between Amnesty and the International Criminal Court’,C&S Law 2005 10 (405)

[3] George Roebling, ‘Invoking the Agreement on Government Procurement’, P.P.L.R. 1999, 4, 187-208.

[4] Carl Landauer, ‘Antinomies of the United Nations: Hans Kelsen and Alf Ross on the Charter’, E.J.I.L 2003, 14(4), 767-799.

[5] M.N. Shaw, ‘International Law’ Cambridge University Press, Cambridge, 2008, P.131

[6] I.Brownlie, ‘Principles of  Public International Law’, Oxford University Press, Oxford, 2008, P. 33

[7] Stephane Beaulac, ‘ Recent Developments on the Role of International Law in Canadian Statutory Interpretation’, Stat Law 2004 25 (19)

[8] T. Maluwa, ‘International Law in Post-Colonial Africa’, Kluwer Law International, Hague, 1999, P.48-51

[9] F. Morgenstern, ‘Judicial Practice and the Supremacy of International Law ‘, 27 BYIL. 42

[10] Antonis Antoniadis, ‘The European Union and the WTO Law: a Nexus of Reactive, Coactive, and Proactive Approaches’, World T.R., 2007, 6(1), 45-87; Certain German Interest in Polish Upper Silesia (Germany v. Poland) 1925 PCIJ (Ser. A), No 7 at 19; H. Lauterpacht, ‘International Law’, Collected Papers, edited by E.  Lauterpacht, Vol 1, Cambridge University Press, Cambridge, 1970, p.152-153

[11] Elizebeth Wicks, ‘A New Constitution for a New State? The 1707 Union of England and Scotland’, L.Q.R. 2001, 117(Jan), 109-126

[12] R.K., Gardiner, ‘ International Law’, Longman Law Series, London, 2003, P. 130

[13] Ibid, P.141