Journal of Law, Policy and Globalization www.iiste.org
ISSN 2224-3240 (Paper) ISSN 2224-3259 (Online)
Vol.109, 2021
Theories Involved in Recognizing and Implementing International
Law in Domestic Contexts
K.A.A.N. Thilakarathna
Institute of Human Resource Advancement, University of Colombo, Sri Lanka
Tel: +94702768174 E-mail:
Nisanka Jayarathna
The Open University, Nawala, Sri Lanka
Tel: +94712576799 E-mail:
Abstract
The impact of international law on the domestic legal system has never being more visible and potent as we see
it today. While this being the case, international law itself does not provide a mechanism as to how international
law should be absorbed in to the domestic legal system and that question is left for the country in question to
decide. In selecting an appropriate method for introducing international law into the domestic legal system, the
theoretical aspirations of monism and dualism has been in the forefront of many books and articles that have
been written on the subject, yet it has been rejected as being failing to appraise the actual practises of the
countries in question when adopting a particular mechanism for bringing international law into the domestic
legal system. This article there for explores the reasons as to why monism and dualism has failed to introduced a
methodology in bringing international law into the domestic context and what theoretical explanations could be
provided for such failure with a conclusion on a more pragmatic approach in choosing the middle way between
monism and dualism.
Keywords: Monism, Dualism, International Law, Incorporation, Transformation
DOI: 10.7176/JLPG/109-09
Publication date:May 31st 2021
1.1 Introduction
The difference between international law and domestic law did not emerge till the Middle Ages according to
Nussbaum (Nussabaun, 1954). Therefore, during those early periods, people were not much bothered with
finding ways to incorporate international law into the domestic realm. Back then, the law was thought to be of
universal nature without there being any distinction as to what it was meant by domestic law and international
law since the norms that created the law emanated from a supreme being. The same author states that, in the
twelfth and thirteenth centuries the beginnings of the separation of international and domestic law emerged. The
universality of law soon began to crumble and the concept of a sovereign nation with its all-embracing powers
to do what it desired in its own territory to the exclusion of others lead to the idea of international law being
something different from the domestic law came into prominence.
The idea of a sovereign state gave rise to the idea of one nation with its own set of laws which were absolutely
enforced in its own territory. However, this law was limited by the territorial boundaries of a state and it did not
apply further than that. Still, the separation between international law and domestic law was not seen since
international law which developed with the idea of a nation state was novel at the time. Even at the beginning of
the early nineteenth century, international law and domestic law did not collide with one another since the
disciplines that were governed by both systems were strangers to one another. International law mainly focused
on regulating the conduct of states when they interact with one another and the domestic law was concerned
about the internal affairs of the country without having much focus on what happens outside its territory.
During these periods, no conflicts were seen between international law and domestic law. However, this soon
changed with the ever growing influenced of international law on the domestic legal system with the emergence
of areas such as environmental concerns, human rights issues, and international trade, where there emerged a
1
This study source was downloaded by 100000858656319 from CourseHero.com on 02-16-2023 04:58:41 GMT -
https://www.coursehero.com/file/179588286/Intl-law-and-domestic-law-
, Journal of Law, Policy and Globalization www.iiste.
ISSN 2224-3240 (Paper) ISSN 2224-3259
(Online)
constant conflict between international legal norms and domestic legal norms. This happened somewhere after
the end of the second world war. After the second world war, states wanted to strengthen the fabric of
international law and they tried to bring international norms into the domestic legal system. Some norms coming
under the slogan of ‘jus cogens’ were accepted as being inviolable at any circumstances. Still the exact method
of bringing international law into the domestic sphere was not made clear under international law, and it was left
for each sovereign state to decide on the specific approach they would want to adopt.
1.2 Theoretical Solutions
There are two main theories that try to explain the relationship between international law and domestic law.
These theories are commonly referred to as monism and dualism. Each is in complete contrast to the other and
the basis of their respective arguments is also fundamentally different. These two theories in general, are
presented in the most abstract form without having much recourse to the actual practice of states. Still any
discussion on the relationship between international law and domestic law starts with monism and dualism.
1.2.1 Monism
Monism asserts that the validity of both the domestic and international legal orders emanate from a single source
(Bjorgvinsson, 2015). The theory implies that, both the domestic legal order and the international legal order are
a part of the one and same legal order. Ademola Abbas (A. Abbas, 2015) states that, two systems are like two
sides of a coin, where the adjectives of domestic and international only signifies the various aspects of the one
and same legal system which does not differentiate between domestic and international law. According to
monism, both the international and domestic legal system are horizontal. This means that when it comes to a
normative choice, in theory at least, one is not choosing either of the laws as being applicable to a given
situation in detriment to the other. What happens is that, since both the systems are parallel to one another, any
choice would be legitimate if there is no conflict between the two. In case of a conflict between a domestic legal
norm with an international legal norm, the international legal norm will be validated to the detriment of its
domestic counterpart.
Kelsen, a prominent figure in the monistic school asserts that since both the domestic and international legal
systems are binding as valid law, they must form a unitary law since norms emanating from both the systems are
equally valid (Starke, 1936). In his analysis of ‘hierarchy of norms’, under this unitary normative order, Kelsen
finds that for a norm to be valid, it must be validated by a higher norm. When no such validation is possible,
such a norm is considered as the ultimate norm and hence called a grundnorm. According to Kelsen, under this
unitary system, it is international law which takes the place of the grundnorm. Further, unlike others in the
monist school, Kelsen concludes that, in deciding to select either the domestic norm or international norm, both
choices would be valid if the logical consequences in selecting either of the norms would remain the same.
However, Dr. Kunz and Verdross (Starke, 1936) refuse this ideal of Kelsen and argues that it is not possible to
make a decision between the two norms which could have the same logical consequences and that, selecting the
international norm is the right thing to do.
While coherence is possible under a monist approach, in case where there is a clear distinction between the
international legal norm with a domestic one, monist proclaim that, it should be the international norm that
should become applicable. Therefore, under a monistic approach, it is the international law that would take the
primary place in this unitary legal system, where the domestic legal system will have to always comply with the
international legal norm, or else be made responsible for violating such a norm.
The main difficulty in conceding to the fact that, international law is part of the domestic legal system without
having any interventions from any local institutions who would have been able to adopt the particular parts of an
international legal norm applicable to such a state while leaving the other parts of that international norm which
seems to contradict with the broader notion of state sovereignty. In a practical sense this would be a usurpation
of the sovereign powers of a state where international law would take effect against the particular wishes of a
country.
2
This study source was downloaded by 100000858656319 from CourseHero.com on 02-16-2023 04:58:41 GMT -
https://www.coursehero.com/file/179588286/Intl-law-and-domestic-law-
ISSN 2224-3240 (Paper) ISSN 2224-3259 (Online)
Vol.109, 2021
Theories Involved in Recognizing and Implementing International
Law in Domestic Contexts
K.A.A.N. Thilakarathna
Institute of Human Resource Advancement, University of Colombo, Sri Lanka
Tel: +94702768174 E-mail:
Nisanka Jayarathna
The Open University, Nawala, Sri Lanka
Tel: +94712576799 E-mail:
Abstract
The impact of international law on the domestic legal system has never being more visible and potent as we see
it today. While this being the case, international law itself does not provide a mechanism as to how international
law should be absorbed in to the domestic legal system and that question is left for the country in question to
decide. In selecting an appropriate method for introducing international law into the domestic legal system, the
theoretical aspirations of monism and dualism has been in the forefront of many books and articles that have
been written on the subject, yet it has been rejected as being failing to appraise the actual practises of the
countries in question when adopting a particular mechanism for bringing international law into the domestic
legal system. This article there for explores the reasons as to why monism and dualism has failed to introduced a
methodology in bringing international law into the domestic context and what theoretical explanations could be
provided for such failure with a conclusion on a more pragmatic approach in choosing the middle way between
monism and dualism.
Keywords: Monism, Dualism, International Law, Incorporation, Transformation
DOI: 10.7176/JLPG/109-09
Publication date:May 31st 2021
1.1 Introduction
The difference between international law and domestic law did not emerge till the Middle Ages according to
Nussbaum (Nussabaun, 1954). Therefore, during those early periods, people were not much bothered with
finding ways to incorporate international law into the domestic realm. Back then, the law was thought to be of
universal nature without there being any distinction as to what it was meant by domestic law and international
law since the norms that created the law emanated from a supreme being. The same author states that, in the
twelfth and thirteenth centuries the beginnings of the separation of international and domestic law emerged. The
universality of law soon began to crumble and the concept of a sovereign nation with its all-embracing powers
to do what it desired in its own territory to the exclusion of others lead to the idea of international law being
something different from the domestic law came into prominence.
The idea of a sovereign state gave rise to the idea of one nation with its own set of laws which were absolutely
enforced in its own territory. However, this law was limited by the territorial boundaries of a state and it did not
apply further than that. Still, the separation between international law and domestic law was not seen since
international law which developed with the idea of a nation state was novel at the time. Even at the beginning of
the early nineteenth century, international law and domestic law did not collide with one another since the
disciplines that were governed by both systems were strangers to one another. International law mainly focused
on regulating the conduct of states when they interact with one another and the domestic law was concerned
about the internal affairs of the country without having much focus on what happens outside its territory.
During these periods, no conflicts were seen between international law and domestic law. However, this soon
changed with the ever growing influenced of international law on the domestic legal system with the emergence
of areas such as environmental concerns, human rights issues, and international trade, where there emerged a
1
This study source was downloaded by 100000858656319 from CourseHero.com on 02-16-2023 04:58:41 GMT -
https://www.coursehero.com/file/179588286/Intl-law-and-domestic-law-
, Journal of Law, Policy and Globalization www.iiste.
ISSN 2224-3240 (Paper) ISSN 2224-3259
(Online)
constant conflict between international legal norms and domestic legal norms. This happened somewhere after
the end of the second world war. After the second world war, states wanted to strengthen the fabric of
international law and they tried to bring international norms into the domestic legal system. Some norms coming
under the slogan of ‘jus cogens’ were accepted as being inviolable at any circumstances. Still the exact method
of bringing international law into the domestic sphere was not made clear under international law, and it was left
for each sovereign state to decide on the specific approach they would want to adopt.
1.2 Theoretical Solutions
There are two main theories that try to explain the relationship between international law and domestic law.
These theories are commonly referred to as monism and dualism. Each is in complete contrast to the other and
the basis of their respective arguments is also fundamentally different. These two theories in general, are
presented in the most abstract form without having much recourse to the actual practice of states. Still any
discussion on the relationship between international law and domestic law starts with monism and dualism.
1.2.1 Monism
Monism asserts that the validity of both the domestic and international legal orders emanate from a single source
(Bjorgvinsson, 2015). The theory implies that, both the domestic legal order and the international legal order are
a part of the one and same legal order. Ademola Abbas (A. Abbas, 2015) states that, two systems are like two
sides of a coin, where the adjectives of domestic and international only signifies the various aspects of the one
and same legal system which does not differentiate between domestic and international law. According to
monism, both the international and domestic legal system are horizontal. This means that when it comes to a
normative choice, in theory at least, one is not choosing either of the laws as being applicable to a given
situation in detriment to the other. What happens is that, since both the systems are parallel to one another, any
choice would be legitimate if there is no conflict between the two. In case of a conflict between a domestic legal
norm with an international legal norm, the international legal norm will be validated to the detriment of its
domestic counterpart.
Kelsen, a prominent figure in the monistic school asserts that since both the domestic and international legal
systems are binding as valid law, they must form a unitary law since norms emanating from both the systems are
equally valid (Starke, 1936). In his analysis of ‘hierarchy of norms’, under this unitary normative order, Kelsen
finds that for a norm to be valid, it must be validated by a higher norm. When no such validation is possible,
such a norm is considered as the ultimate norm and hence called a grundnorm. According to Kelsen, under this
unitary system, it is international law which takes the place of the grundnorm. Further, unlike others in the
monist school, Kelsen concludes that, in deciding to select either the domestic norm or international norm, both
choices would be valid if the logical consequences in selecting either of the norms would remain the same.
However, Dr. Kunz and Verdross (Starke, 1936) refuse this ideal of Kelsen and argues that it is not possible to
make a decision between the two norms which could have the same logical consequences and that, selecting the
international norm is the right thing to do.
While coherence is possible under a monist approach, in case where there is a clear distinction between the
international legal norm with a domestic one, monist proclaim that, it should be the international norm that
should become applicable. Therefore, under a monistic approach, it is the international law that would take the
primary place in this unitary legal system, where the domestic legal system will have to always comply with the
international legal norm, or else be made responsible for violating such a norm.
The main difficulty in conceding to the fact that, international law is part of the domestic legal system without
having any interventions from any local institutions who would have been able to adopt the particular parts of an
international legal norm applicable to such a state while leaving the other parts of that international norm which
seems to contradict with the broader notion of state sovereignty. In a practical sense this would be a usurpation
of the sovereign powers of a state where international law would take effect against the particular wishes of a
country.
2
This study source was downloaded by 100000858656319 from CourseHero.com on 02-16-2023 04:58:41 GMT -
https://www.coursehero.com/file/179588286/Intl-law-and-domestic-law-
