LCP4807
Assignment 1
Semester 1
Due 7 April 2026
, 1.1. Approaches to the Application of International Law in South Africa
The application of international law within a state's domestic legal system is generally
understood through two primary theoretical approaches: monism and dualism. These
approaches define the relationship between international and municipal law and
determine how international norms acquire domestic legal force. South Africa adopts a
hybrid approach that incorporates elements of both theories, reflecting a practical
engagement with international obligations.
Monism
In a monist system, international law and domestic law are part of a single legal order.
This means that international law automatically forms part of domestic law once it
comes into existence, without requiring separate implementing legislation. National
courts can directly apply international legal norms, which may even override conflicting
domestic law, depending on the system. The underlying principle is that international
law is inherently superior or at least equal to national law.
For example, if a monist country ratifies the Convention on the Elimination of All Forms
of Discrimination Against Women (CEDAW), its provisions can be directly invoked in
domestic courts without further legislation.
Dualism
Dualist systems treat international and domestic law as separate legal orders.
International treaties or customary law do not have domestic legal effect unless
transformed into national law through legislation. Until such incorporation, international
law cannot create enforceable rights or obligations within domestic courts. Dualism
emphasizes state sovereignty, requiring deliberate legislative action to give domestic
effect to international obligations.
For instance, if a dualist country signs the International Covenant on Civil and Political
Rights (ICCPR), domestic courts cannot enforce its provisions until parliament passes
legislation incorporating the treaty.
Assignment 1
Semester 1
Due 7 April 2026
, 1.1. Approaches to the Application of International Law in South Africa
The application of international law within a state's domestic legal system is generally
understood through two primary theoretical approaches: monism and dualism. These
approaches define the relationship between international and municipal law and
determine how international norms acquire domestic legal force. South Africa adopts a
hybrid approach that incorporates elements of both theories, reflecting a practical
engagement with international obligations.
Monism
In a monist system, international law and domestic law are part of a single legal order.
This means that international law automatically forms part of domestic law once it
comes into existence, without requiring separate implementing legislation. National
courts can directly apply international legal norms, which may even override conflicting
domestic law, depending on the system. The underlying principle is that international
law is inherently superior or at least equal to national law.
For example, if a monist country ratifies the Convention on the Elimination of All Forms
of Discrimination Against Women (CEDAW), its provisions can be directly invoked in
domestic courts without further legislation.
Dualism
Dualist systems treat international and domestic law as separate legal orders.
International treaties or customary law do not have domestic legal effect unless
transformed into national law through legislation. Until such incorporation, international
law cannot create enforceable rights or obligations within domestic courts. Dualism
emphasizes state sovereignty, requiring deliberate legislative action to give domestic
effect to international obligations.
For instance, if a dualist country signs the International Covenant on Civil and Political
Rights (ICCPR), domestic courts cannot enforce its provisions until parliament passes
legislation incorporating the treaty.
