Unit 3: International Law

and National Law

E. Siangandu
ellasiangandu@yahoo.com

Relationship between National &

International Law
General rule: Each state will have its own rules of Internal
Constitutional Law that tell us how international law is to be
applied in practice in national courts of that state.
Different rules will apply for different countries
Theories that have been developed to explain the
relationship of international law & national Law on a
general level Two main schools of thought Monism &
Dualism.
Relationship between national law & international Law

Monism Theory
Supposes that International Law and National Law are
two components of a single body of knowledge referred
to as Law.
Both sets of rules operate in the same sphere of
influence & are concerned with the same subject matter
They operate concurrently over the same matter.
Where there is a conflict between systems international
law (IL) is said to prevail
For example IL of human rights stipulates that no person
may be imprisoned without trial, under the monist
theory a national court would have to give effect to this
even though a clear rule of national law said otherwise.

Reasons for the superiority of IL

under monist theory
Monist suppose the superiority of IL
IL is derived from state practice & national law derived
from the state as established in IL therefore higher legal
order- Kelsen
In contrast Lauterpacht former ICJ judge sees IL as
superior because it offers the best guarantee for the
human rights of individuals.
This follows from the fact that the state is seen as a
collection of individuals rather than a legal entity in its
own right.

Therefore under Monist theory

IL is superior
Implies that legal institutions courts, legislature should
ensure that national rights & obligations confirm with IL
Where there is a conflict, national courts should give
effect to IL not domestic law

Dualism Theory
Considers IL and national law to be two separate legal
orders operating & existing independently of one
another.
IL is the law applicable between sovereign states
The application of IL is dependent on the common will
of states for its authority.
Municipal law on the other hand applies within the state
regulating the activities of its citizens

 Municipal law has its source of its authority the will of

the state itself.
Each system deals with matters in its own way for
example international courts apply IL
National courts apply national law.
Where there is a conflict between the two system
Municipal law applies.
This might lead to a state being in breach of its
international obligations
But that would be a matter for the international court to
deal with.

Relationship between national &

International law - Municipal law
before International tribunal
The law on the relationship between international and
national law is clear A state cannot rely upon the
provision or deficiencies of its municipal law to avoid its
obligations under international law
Art 27 VCLT 1969 provides:
A party may not invoke the provisions of its internal law as
justification for its failure to perform a treaty.

International Law in Municipal law Doctrines of incorporation &

Transformation
Doctrines of incorporation
Reflects the monists position that the rules of IL
automatically become part of the municipal law as a
result of the doctrine of incorporation.
A rule of IL becomes part of IL of national law without
need for express adoption by local courts or legislature.
The rule of IL is incorporated in national law simply
because it is a rule of IL

Doctrine of incorporation
This is particularly the case in relation to customary
International Law
Occurs as a result of a constitutional basis i.e.
Article 25 of basic law of Germany.
A rule of IL becomes part of IL of national law without
need for express adoption by local courts or legislature.
The rule of IL is incorporated in national law simply
because it is a rule of IL
This is particularly the case in relation to customary
International Law
Occurs as a result of a constitutional basis i.e.
Article 25 of basic law of Germany.

Doctrine of Transformation
As dualist theory maintains IL and municipal law
constitute two distinct legal systems implication is that
before any rule of IL can have effect within domestic
jurisdiction it requires express transformation into
municipal law.
Rule of IL do not become part of the national law until
they have been expressly adopted by the state.
IL is not part of national law
Hence a national court cannot apply a particular rule of
IL until that particular rule has been transformed into
national law as legislation.
Thus IL and national law are kept separate

References/Readings
Chapter 4 Dixon Textbook on International Law .
Chapter 2 Brownlie Principles of Public International
Law.
Chapter 2 Hillier Sourcebook on Public International
Law

Tutorial Question
Based on your knowledge of Zambian law, What theory
and doctrine would be application to Zambia?(justify
your response)
Consider section 3 Constitution of Zambia CAP 1
This constitution is a supreme law of Zambia and if any
other law is inconsistent with this constitution that other
law shall, to the extent of the inconsistency, be void.