Monoism and Dualism–
In general, two principal theories persist, namely Monoism and Dualism on this point. Judiciary of the countries that follow Monoism subscribe to the view that International law and Municipal Law are concomitant aspects of the one (mono) system of law in general, while the judiciary in those countries that adhere to the Dualism, stick to the norm that international and municipal laws represent two diametrically distinct legal (dual) systems, international law having an intrinsically different character from that of municipal law. (J G Starke, Introduction to International law, page 72). Hans Kelsen termed Dualism as pluralist theory.
Dualists expound the view that rules of international law can not directly and exproprio vigore be applied within the municipal sphere by State courts, i.e in order to be so applied such rules must undergo a process of “specific adoption” by or “specific incorporation” into, Municipal Law, while Monoist believe such rules are auto-incorporated into the municipal system. George Schwarzenberger (A Mannual of International Law, Fourth Edition, Vol-1. Page 40), insists that the two schools hold antithetically opposing views.
Dualist believe International and Municipal Laws are separate and self-contained legal systems-contacts between them are possible but require express or tacit recognition of the rules of the one legal system by the other. (Page 41, Schwargenberger).
Dualism grew in strength in the nineteenth century with the development of the pluralist doctrines of the sovereignty of state will, as propounded by Hegel and those who followed him, with the emergence of the concept of internal legal sovereignty.
Triepel, one of the pivotal advocates of Dualism expressed in his book “Volkerrecht and Laudesrecht” 1899, that there are two fundamental differences between the two systems; (1) The subject of state law are individuals, while the subjects of International Law are states solely and exclusively.
(2) Their judicial origins are different; the source of state law is the will of the state itself, the source of International Law is the common will of the states (Gemeinville).
Anzilati, another arch exponent of Dualism, however, held that the difference lies in that Municipal law is conditioned by the fundamental norm that state legislation is to be obeyed, while International Law is conditioned by the doctrine of “pacta sunt servanda”, ie agreements between the states are to be respected, and hence two systems are so distinct that no conflict between the two are possible; there may be references from the one to the other, but nothing more (di Diritto Internazionale, 3rd edn 1928, Vol 1 page 43).
Dualists hold high primacy of state law basing the same on the theory of the sovereignty of the state will, while the Monoists assert that all laws belong to a single unity, composed of binding legal rules, whether those rules are obligatory on states, on individuals, or on entities other than states. They believe that there can be no escape from the position that the two systems, because they are both systems of legal rules, are interwoven parts of one legal structure. Dualists’ argument on the Primacy of Municipal Law lies on the claim that states enjoy the very widest liberties and exercise complete sovereignty, while Monoists say States sovereignty is conditioned by the limits International Law imposes.
Since, according to positivists theory, International Law and Municipal Law constitute two strictly separate and structurally different systems, the former can not impinge upon state law unless the latter, a logically different system, allows its constitutional machinery to be used for that purpose. (J G Strake supra, page 76).
In the cases of treaties, rules regarding transformation of treaty into state law, i.e. by legislative approval of the treaty, which is not merely a formal but a substantive requirement, alone vindicates the extension to individuals of the rules laid down in treaties.
While the US courts generally follow Monoist School, British courts draw a distinction between. i) Customary rules of International Law on the one hand and ii) the rules laid down by treaties, on the other.
So far as the treaties are concerned, British courts consistently and without ambiguity follow Dualism i.e, adoption theory, stubbornly in that they do not give effect to any treaty provision which has not been specifically adopted domestically by legislation. So far as rules of Customary International law are concerned, however, the scenario is inflicted with some obscurity engendered by divergent judicial views, finally suggesting that in case of conflict domestic law must prevail. (A. H. M. Shamsuddin Choudhury, J) …Government of Bangladesh =VS= Abdul Quader Molla, (Criminal), 2020 (1) [8 LM (AD) 375] ....View Full Judgment