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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 Malenovský , 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.
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.
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.
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
Malenovský, J., "Mezinárodní právo veřejné", (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
Odkaz na seznam soudů:
Medzinárodná zodpovednosť za škody spôsobené rizikovým chovaním, ktoré nie je zakázané medzinárodným právom
Projekt OSN vznikl z informační podpory IC OSN v Praze
Mezinárodní soudní dvůr
Hospodářská a sociální rada
Světová obchodní organizace (WTO)
Světová zdravotnická organizace (WHO)
Organizace OSN pro výchovu, vědu a kulturu (UNESCO)
Skupina světové banky a Mezinárodní měnový fond
Mezinárodní námořní organizace (IMO)
Mezinárodní organizace práce (ILO)
Mezinárodní organizace pro civilní letectví (ICAO)
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