sees national and international law as independent of eachother as each operates within its enclosed sphere of influence. Whileinternational law regulates the relations of sovereign states, national lawregulates the internal affairs of a given state. Consequently, this rendersthe relevance and application of international law within a state at themercy of the municipal law. Dualism does not acknowledge that a disputecan arise between the two legal systems.
, on the other hand, adopts a unitary concept of law and seesboth international law and domestic law as part of an integrated legalsystem. Therefore, reception of international law does not require anyspecific decision taken in accordance with domestic law. In the event of adispute between both laws, international law prevails.In a dualist state such as the UK, international law and domestic law arereckoned as separate legal systems, operating on different planes.
Assuch, international law does not form part of its domestic law.
Althoughinternational law may, at times, apply in domestic law, they do so basedon their adoption by the domestic law of the state.
In practice, the differences between international law and domestic law isminimised and efforts are being made to achieve harmonisation betweenthe two systems. In the United Kingdom, there exits:
a prima facie presumption that parliament does not intend to act in breach of international law, including specific treaty obligations; and if one of the meanings which can reasonably be ascribed to the legislation is consonant with the treaty obligations and others are not, the meaning which isconsonant is to be preferred
Similarly, in the United States, it is an established principle of interpretation that
23/11/2009. However, Bogdandy has stated that monism and dualism should cease to exist as doctrinal and theoretical notionsfor discussing the relationship between international law and domestic law, arguing that their arguments which are ratherhermetic, are not linked to contemporary theoretical debate, and as doctrines, they have proved unsatisfactory since they do
not help in solving legal issues. See A. Bogdandy, “Pluralism, direct effect
and the ultimate say: on the relationship between
international and domestic constitutional law” (2008) 6 I.J.C.L. 399; and A. Bogdandy, “The past and promise of doctrinal
constructivism: a strategy for responding to the challenges facing constitutional sc
holarship in Europe” (2009) 7 I.J.C.L. 378.
R.M.M. Wallace and O. Martin-Ortega opcit p.38. However, if any dispute arises between the two, municipal court will applymunicipal law and vice versa.
Jennings and Watts,
Oppenheim’s International Law
edn, Peace, 1992) pp.54-55.
Apart from customary international law which is not a major part of this essay.
P. Sales and J. Clement opcit p.1. This classification reflects the outcome of the comprehensive review and analysis ofdomestic law in this respect by the appellate committee in the International Tin Council Case, Re. See
Maclaine Watson v Dept of Trade and Industry
(1988) 3 W.L.R. 1033
Salomon v Commissioners of Customs and excise
(1967) 2 Q.B. 116, CA per Lord Diplock;
Post Office v Estuary Radio Ltd
(1968) 2 Q.B. 740, CA. This is known as the Presumption of Compatibility.