INTERNATIONAL AND MUNICIPAL LAW
Introduction
Each domestic jurisdiction chooses its own terms of engagement with IL (how it’s received domestically).
Two general conceptions exist, but they are too generic to perfectly capture national systems:
1. Dualism argues there are two distinct, independent legal orders – neither can create or change
the other system, so application of IL in the domestic context is because the national legal
system has enacted it.
Supported by Treipel, Anzilotti. Note positivism (Treipel, Strupp) aligns with dualism – actual
practice formulates the role of IL, not morals/structure – state supremacy, any interference is
because of assent of the state.
Fitzmaurice and Rousseau take a practical/nuanced approach within this – distinct, supreme
systems; remedy for breach takes place on the IL plane, cannot be evaded by EL. Domestic
presumption of consistent interpretation.
2. Monism presents IL and domestic law as a single body of law. Monism means that laws of IL can
directly apply in domestic law – an intermediary stage of enactment is not needed.
Supported by Kelsen (grundnorm is that international commitments are binding), Lauterpacht.
Lauterparcht is part of the naturalist strand – sees IL supremacy as the best method of ensuring
the well-being of individuals (thinks it has moral purpose, justice based on respect for HRs).
Kelsen regards law as normative, says since IL connects states and states cannot be equal
without it, IL is more fundamental.
3. Alternatives? Fitzmaurice proposes monist-dualist controversy is artificial and non-existent –
tere is no common field where both legal orders have simultaneous spheres of activity. Any
apparent conflict is settled by conflict rules of the relevant forum (IL or domestic, each supreme
in own forum). Domestic law does not apply in IL – supremacy of IL exists because it arises from
a different field of operation (supreme on international plane).
Anzilotti says there cannot be conflict between rules belonging to different juridical
orders, so no IL/domestic conflict. Inaccurate as speaking about conflict between
different states’ laws – conflict can only be confirmed by external viewpoint, which
doesn’t exist. (note this is F’s interp of A; F says A is only mistakenly labelled a dualist).
A common field of operation would be necessary to discuss relation between the two –
monism and dualism seem to be creating one field, which denies existence of
state/reduces state to the sum of individuals within it.
It is not the systems which conflict, but the obligations arising from them – when state
breaches IL obligation, it just means breach on that plane, no attempt to govern ML.
Introduction
Each domestic jurisdiction chooses its own terms of engagement with IL (how it’s received domestically).
Two general conceptions exist, but they are too generic to perfectly capture national systems:
1. Dualism argues there are two distinct, independent legal orders – neither can create or change
the other system, so application of IL in the domestic context is because the national legal
system has enacted it.
Supported by Treipel, Anzilotti. Note positivism (Treipel, Strupp) aligns with dualism – actual
practice formulates the role of IL, not morals/structure – state supremacy, any interference is
because of assent of the state.
Fitzmaurice and Rousseau take a practical/nuanced approach within this – distinct, supreme
systems; remedy for breach takes place on the IL plane, cannot be evaded by EL. Domestic
presumption of consistent interpretation.
2. Monism presents IL and domestic law as a single body of law. Monism means that laws of IL can
directly apply in domestic law – an intermediary stage of enactment is not needed.
Supported by Kelsen (grundnorm is that international commitments are binding), Lauterpacht.
Lauterparcht is part of the naturalist strand – sees IL supremacy as the best method of ensuring
the well-being of individuals (thinks it has moral purpose, justice based on respect for HRs).
Kelsen regards law as normative, says since IL connects states and states cannot be equal
without it, IL is more fundamental.
3. Alternatives? Fitzmaurice proposes monist-dualist controversy is artificial and non-existent –
tere is no common field where both legal orders have simultaneous spheres of activity. Any
apparent conflict is settled by conflict rules of the relevant forum (IL or domestic, each supreme
in own forum). Domestic law does not apply in IL – supremacy of IL exists because it arises from
a different field of operation (supreme on international plane).
Anzilotti says there cannot be conflict between rules belonging to different juridical
orders, so no IL/domestic conflict. Inaccurate as speaking about conflict between
different states’ laws – conflict can only be confirmed by external viewpoint, which
doesn’t exist. (note this is F’s interp of A; F says A is only mistakenly labelled a dualist).
A common field of operation would be necessary to discuss relation between the two –
monism and dualism seem to be creating one field, which denies existence of
state/reduces state to the sum of individuals within it.
It is not the systems which conflict, but the obligations arising from them – when state
breaches IL obligation, it just means breach on that plane, no attempt to govern ML.
