BAHIR DAR UNIVERSITY SCHOOL OF LAW

REGULAR DEGREE PROGRAM (LL.B.)

PUBLIC INTERNATIONAL LAW

(2024/25)

Instructor: Tessema S.

NOTES CHAPTER THREE

3. THE RELATIONSHIP BETWEEN INTERNATIONAL LAW AND MUNICIPAL LAW

3.1. Theories
Introduction
• Historically there have been two main schools of thought: Monism and Dualism.
• However, many modern writers doubt the utility of the monism/dualism dichotomy. They
argue that,
• It is argued that, the doctrinal dispute is largely without practical consequences, for the
main practical questions which arise are answered not be reference to doctrine but by
looking at what the rules of various national laws and of international law prescribe.

3.1.1. Monism

• According to the monistic doctrine, the two systems of law are part of one single legal
structure, the various national systems of law being derived by way of delegation from
the international legal system.

• Monism considers international law and municipal law to be both part of the same legal
order/body of knowledge – law that operate in the same sphere of influence and are
concerned with the same subject matter, and as such, can come into conflict.

• Since international law can thus be seen as essentially part of the same legal order as
municipal law, and superior to it, it can be regarded as incorporated in municipal law,
giving rise to no difficulty of principle in its application as international law within states.
If there is a conflict between the two, Monists believe, it is international law that prevails.

• Monists justify their position in different ways. There are two notable approaches. Some,
like Kelsen, argue that this is because international law is a higher law from which the
state derives its authority and thus its ability to make municipal laws: Since the basic
norms of the national legal orders are determined by a norm of international law, they are
basic norms only in a relative sense. It is the basic norm of the international legal order

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 which is the ultimate reason of validity of the national legal orders too. (Kelsen,
General Theory of Law and the State, 1945, Cambridge, Mass: Harvard University Press
at pp 367–68.)

• Others, including Lauterpacht, argue on natural law grounds that international law
prevails because it protects individuals, and the state itself is only a collection of
individuals. This position is supported by the natural law doctrine that authority and legal
duty are both subject to the universality of natural law. Positions like Lauterpacht’s are
based on a strong ethical position with a deep concern for human rights. This
‘naturalist’ strand represented in England by Lauterpacht’s works sees the primary
function of all law as concerned with the well-being of individuals, and advocates the
supremacy of international law as the best method available of attaining this. It is an
approach characterised by deep suspicion of an international system based upon the
sovereignty and absolute independence of states, and illuminated by faith in the capacity
of the rules of international law to imbue the international order with a sense of moral
purpose and justice founded upon respect for human rights and the welfare of individuals.

3.1.2. Dualism

• According to dualists, international law and the internal law of states are totally
separate legal systems. Being separate systems, international law would not as such
form part of the internal law of a state: to the extent that in particular instances rules of
international law may apply within a state they do so by virtue of their adoption by the
internal law of the state, and apply as part of that internal law and not as international law.
• The dualist doctrine developed in the 19th century partly because of the development
of theories about the absolute sovereignty of states and partly alongside the
development of legal positivism.

• Dualist doctrine considers international law and municipal law to be two separate legal
orders operating and existing independently of one another.

• International law is the law applicable between sovereign states and is dependent on
the common will of states for its authority; municipal law applies within the state
regulating the activities of its citizens and has as the source of its authority the will of
the state itself.

• On this basis neither system has the power to create or alter rules of the other. Since both
systems may deal with the same subject matter it is possible for conflicts between the two
systems to arise. Where there is a conflict between the two systems, a municipal court
following the dualist doctrine would apply municipal law. This might lead to a state being
in breach of its international obligations, but that would be a matter for an international
tribunal.

• Where municipal legislation permits the exercise of international law rules, this is on
sufferance as it were and is an example of the supreme authority of the state within its own

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 domestic jurisdiction, rather than of any influence maintained by international law within
the internal sphere.

3.1.3. A third way?

• A third school of thought can be identified which, while subscribing to the dualist concept
of two separate legal orders, argues that the two orders deal with different subject matters.

• Foremost among the advocates of this doctrine are two former judges at the World Court:
Sir Gerald Fitzmaurice and Dionisio Anzilotti.

• This position seems to support the view that the two sets of rules, international law and
municipal law, each had its own sphere of application.

• A radical view of the whole subject may be propounded to the effect that the entire monist-
dualist controversy is unreal, artificial and strictly beside the point, because it
assumes something that has to exist for there to be any controversy at all – and which
in fact does not exist – namely a common field in which the two legal orders under
discussion both simultaneously have their spheres of activity ...

3.2. The practical issue

3.2.1. Municipal law before international tribunal

There is ample judicial and arbitral authority for the rule that a state cannot rely upon the
provisions or deficiencies of its municipal law to avoid its obligations under international
law.

One of the earliest authorities is the decision in the Alabama Claims Arbitration (1872).

During the American Civil War, a number of ships were built in England for private buyers. The
vessels were unarmed when they left England but it was generally known that they were to be
fitted out by the Confederates in order to attack Union shipping. They were so fitted and caused
considerable damage to American shipping. The US sought to make the UK liable for these losses
on the basis that it had breached its international obligations as a neutral during the War.

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The UK argued that under English law as it stood there was no way in which it could prevent the
sailing of the vessels. The arbitrator rejected the UK argument and had no hesitation in
upholding the supremacy of international law.

In the Draft Declaration on the Rights and Duties of States 1949 prepared by the International
Law Commission, Article 13 states:
Every state has the duty to carry out in good faith its obligations arising from
treaties and other sources of international law, and it may not invoke provisions in
its constitution or its laws as an excuse for failure to perform this duty.

Similarly, Article 27 of the Vienna Convention on the Law of Treaties 1969 provides:

A party may not invoke the provisions of its internal law as justification for its
failure to perform a treaty.

Article 46(1) [of the VCLT) provides that a state may not invoke the fact that its consent to be
bound by a treaty has been expressed in violation of a provision of its internal law regarding
competence to conclude treaties as invalidating its consent.

This is so unless the violation of its internal law in question was ‘manifest and concerned a rule of
fundamental importance’. Article 46(2) states that such a violation is manifest where it would be
objectively evident to any state conducting itself in the matter in accordance with normal practice
and in good faith.

The reasons for this inability to put forward internal rules as an excuse to evade international
responsibility are obvious. Any other situation would permit international law to be evaded
by the simple method of domestic legislation.

The relevance of municipal law at international level

Although international tribunals will uphold the supremacy of international law over municipal
law this should not be taken to mean that municipal law is of no relevance.

Municipal law, and in particular domestic legislation, has an important role to play. Very often an
international tribunal will have cause to examine domestic legislation closely to discern the
practice of states.

• Municipal law may reveal a state’s legal position on international law issues

One of the ways that it is possible to understand and discover a state’s legal position on a variety
of topics important to international law is by examining municipal laws. A country will express its
opinion on such vital international matters as the extent of its territorial sea, or the jurisdiction it
claims or the conditions for the acquisition of nationality through the medium of its domestic
lawmaking. Thus, it is quite often that in the course of deciding a case before it, an international
court will feel the necessity to make a study of relevant pieces of municipal legislation.

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 • Municipal law can be utilized as evidence of compliance or non-compliance with
international obligations

This was emphasised in the Certain German Interests in Polish Upper Silesia case, where the
Permanent Court of International Justice declared that:

From the standpoint of International Law and of the Court, which is its organ, municipal
laws are merely facts which express the will and constitute the activities of States, in the
same manner as do legal decisions or administrative measures. The Court is certainly not
called upon to interpret the Polish law as such; but there is nothing to prevent the Court’s
giving judgment on the question whether or not, in applying that law, Poland is acting in
conformity with its obligations towards Germany under the Geneva Convention.

• Municipal law is important while considering ‘general principles of law’ under Article
38(1)(c) of the ICJ statute
It should however be pointed out that the court will look at municipal law in general rather than
any single system of municipal law.

• Doctrine of opposability
Another manner in which municipal law may be of importance in a case before an international
tribunal arises from the doctrine of opposability. This doctrine allows one state to invoke
against, or ‘oppose’ to, another state a rule of its own municipal law. As a general principle,
provided that the rule of municipal law is not contrary to rules of international law it may
be legitimately opposed in order to defeat the international claims of the other state.

Thus, in the Anglo- Norwegian Fisheries case (1951) the ICJ held that a Norwegian law delimiting
an exclusive fishery zone along almost 1,000 miles of coastline was not contrary to international
law and therefore could be successfully opposed to defeat British claims to fish in the disputed
waters.

3.2.2. International law in municipal courts

3.2.2.1. Transformation and incorporation

Various theories have been put forward to explain the applicability of international law rules within
the jurisdiction.
• Doctrine of Transformation
One expression of the positivist–dualist position has been the doctrine of transformation. This
is based upon the perception of two quite distinct systems of law, operating separately, and
maintains that before any rule or principle of international law can have any effect within the
domestic jurisdiction, it must be expressly and specifically ‘transformed’ into municipal law
by the use of the appropriate constitutional machinery, such as an Act of Parliament. This
doctrine grew from the procedure whereby international agreements are rendered operative in
municipal law by the device of ratification by the sovereign and the idea has developed from this

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that any rule of international law must be transformed, or specifically adopted, to be valid within
the internal legal order.

• Doctrine of incorporation
A different view, and one reflecting the monist position, is that rules of international law
automatically become part of municipal law as a result of the doctrine of ‘incorporation’.
Put at its simplest, transformation doctrine views rules of international law as being excluded
from municipal law unless specifically included; the incorporation doctrine holds that rules
of international law are included as part of municipal law unless they are specifically
excluded.

The best-known exponent of this theory is the eighteenth-century lawyer Blackstone, who
declared in his Commentaries that:

the law of nations, wherever any question arises which is properly the object
of its jurisdiction, is here adopted in its full extent by the common law, and
it is held to be a part of the law of the land.

It is not necessary that one and the same doctrine will be used for both customary international law
and treaties. For example, in British practice, the doctrine of incorporation is applied for
customary international law and the doctrine of transformation is applied for treaties.

However, customary international law will be applied by the English courts subject to two main
conditions:

1/ If there is a conflict between customary international law and an Act of Parliament, the Act of
Parliament prevails. It should be noted that, as a general rule of statutory interpretation, the courts
will try to interpret statutes so as to avoid a conflict with international law. This does not of course
apply if the statute is clear and unambiguous.

2/ If there is a conflict between customary international law and a binding judicial precedent laying
down a rule of English law, the judicial precedent prevails.

In England, the usual way in which treaties are transformed into English law is by the passing of
an enabling act to which a schedule is attached containing the provisions of the treaty to be enacted.
For example the Diplomatic Privileges Act 1964 enacts the Vienna Convention on Diplomatic
Relations 1961. Where the treaty is contained in a schedule it is an integral part of the Act and any
interpretation of the statute will involve interpretation of provisions of the treaty.

The US practice concerning customary law is similar to Britain, the US Constitution provides:

... all treaties made or which shall be made with the authority of the United
states, shall be the supreme law of the land and the Judges in every state shall be
bound thereby, anything in the Constitution or Law of any state to the contrary
notwithstanding.

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To mitigate the effects of this rule, the US courts have distinguished ‘self-executing treaties’
which automatically become law and ‘non-self-executing treaties’ which require legislation by
Congress to become law. Discussion of the distinction between self-executing and non-self-
executing treaties has taken up much American court time and the implication of the various cases
is that the distinction depends on the political content of the treaty.

Where a treaty involves political questions the issue should be left to Congress but where a treaty
contains provisions which are capable of enforcement as between private parties then it will be
regarded as self-executing. Treaties in conflict with the US Constitution are not regarded as
binding.

The constitutions of Austria, Germany and Italy all declare that the generally recognised rules of
international law form part of the domestic system.

For example, Article 25 of the Basic Law of Germany states:

... the general rules of public international law are an integral part of federal law.
They shall take precedence over the laws and shall create rights and duties for
the inhabitants of the federal territory.

The courts in all three states have found that while such provision may apply to customary
international law, the provisions of treaties do not automatically become part of municipal law. A
different approach is taken by the Dutch constitution which provides that international treaties to
which the Netherlands is a party become part of municipal law and prevail over incompatible
provisions of Dutch law. No mention is made of the rules of customary international law and the
Dutch courts have not considered international custom to be automatically part of Dutch law. As
a general observation it can be said that few municipal courts have upheld the priority of
international law over municipal law.

3.3. The Context of Ethiopia

(Teaching Material p. 343)

Customs and Treaties as Part of the Law of Ethiopia

Under the current arrangement of the legal system of The Federal Democratic Republic of
Ethiopia, the Constitution makes itself the Supreme law of the land under Article 9. Article 9(1)
provides “ (a)ny law, customary practice or decision of an organ of state or a public official which
contravenes this constitution shall be of no effect.” Sub Article 4 of the constitution provides on
the other hand “(a)ll international agreements ratified by Ethiopia are an integral part of the law
of the land.” The problem that could be raised here is customary international law excluded in
from being the integral part of the law of Ethiopia. This is because the constitution says
“….international agreements ratified by Ethiopia…” Hence any subordinate law or custom (‘does
it include international custom?’) contrary to the constitution is void. This invokes at least two
questions: viz; first, what does the constitution say as to customary international laws; secondly

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what is the effect if an international treaty/declaration Ethiopia is a party or ratified contravenes
the constitution or any other subordinate law? So would Ethiopian Courts employ international
law (customs and treaties) to solve disputes?

On the other hand Article 13 (2) of the constitution provides that the fundamental rights and
freedoms specified in this chapter shall be interpreted in a manner conforming to the principles of
the UDHR, the International Covenants on Human rights and International instruments adopted
by Ethiopia. However arguable it is, the Ethiopia constitution gives a first hand place for human
rights instruments (ratified) for purposes of interpretation. Obviously human rights instruments
are sources of international law as the Article 38 of the ICJ Statute provides. But not all
instruments are related human rights. Therefore the question arises as to the status of International
treaties not related to human rights but ratified by Ethiopia. What about customary rules of
international law, jus cogens? Dear readers refer to materials on the hierarchy of laws on
introduction to law. Basically it is important to pose the questions: What is the place of customary
international law under the Ethiopian legal system? What about Non human rights
treaties/instruments? This would be of help for at least theoretical purposes.