CENTRAL UNIVERSITY OF

SOUTH BIHAR

PROJECT-WORK

Topic: Dualistic Theory of International Law

Name : Chiranjeevi Suman

Enrolment No. : CUSB1513125016
Course : B.A., LL.B. (Hons.)
Semester : 6TH
Subject : Public International Law
Submitted to : Ms. Poonam Kumari

1|Page
 ACKNOWLEDGEMENT

You are most welcome in my project work of “Public International Law” on the
topic “Dualistic Theory of International Law”. This project is given by our honourable
subject professor “Ms. Poonam Kumari” and first of all I would like to thank her for
providing me such a nice topic and making me aware as well providing me a lot of ideas
regarding the topic and the methods to complete the project.

I would like to thank all the Library staffs who helped me to find all the desired books
regarding the topic as the whole project revolves around the doctrinal methodology of
research. I would like to thank to my seniors as well as class mates who helped me in the
completion of this project. I would also like to thanks to Google and Wikipedia as well as
other web sites over web which helped me in the completion of this project. Last but not the
least, thanks to all who directly or indirectly helped me in completing of this project.

I have made this project with great care and tried to put each and every necessary
information regarding the topic. So at the beginning I hope that if once you will come inside
this project you will be surely glad.

Chiranjeevi Suman

2|Page
 INDEX

S. No. Title Page No.

01. Introduction 04
02. Dualistic Theory 05-07
03. Features of Dualistic Theory 08
04. The Problem of “lex posterior” 09

Theories as to Relationship Between International Law

05. 10-11
and Municipal Law: Dualism & Monism
06. Differences Between Dualistic and Monistic Theory 12-14
07. Criticism and Disadvantages 15
08. Conclusion 16

3|Page
 INTRODUCTION

According to the dualist theory, the system of International Law and Municipal Law are
separate and self-contained to the extent to the rules of the one are not expressly or tacitly
received into the other system. The two are separate bodies of legal norms, emerging in part,
from different sources compressing different subject, and having application to different
object". According to the dualist theory, Municipal Law originates in the customs and treaties
between the States. Triepel, Anziloti, and Oppenheim are the chief exponent of this theory.

According to them, both these laws are different from each other because their subjects and
origin are different. International Law and Municipal Law are entirely different from each
other regarding their sources, subjects origin nature substance and primacy. The view of the
jurists on the question of relationship of International Law and Municipal Laws are divergent
which have led to the emergence of divergent theories. Certain theories have been
propounded to explain the relationship between the International Law and Municipal Law.

Following are the some of the important prominent theories in this connection: a) Monism b)
Dualism c) Specific Adoption Theory d) Transformation theory e) Delegation Theory. These
theories have been put forward to explain the relationship between International Law and
Municipal Law or State Law. Of all these theories the most important and popular theories
are Monism and Dualism and they are diametrically opposed to each other.

According to the dualist theory, the system of International Law and Municipal Law are
separate and self-contained to the extent to the rules of the one are not expressly or tacitly
received into the other system. The two are separate bodies of legal norms, emerging in part,
from different sources compressing different subject, and having application to different
object". According to monistic theory, municipal law and international law are parts of one
universal legal system serving the needs of human community. They both are species of one
genus.1

1
“Dr. S. K. Kapoor”, “ International Law and Human Rights”, Central Law Agency, 18 th Edition 2011

4|Page
 DUALISTIC THEORY

According to dualistic theory, International law and municipal laws of the several States are
two distinct, separate and self-contained legal systems. Being separate systems, International
Law would not as such form part of the internal law of a state: to the extent that in particular
instance rules of International Law may apply within a State they do so by virtue of their
adoption by the internal law of the State, and apply as part of that internal law and not as
International Law. Such a view avoids any question of the supremacy of the one system of
law over the other since they share no common field of application: each is supreme in its
own sphere.

In the 19th- 20th century partly as a result of philosophical doctrine for example Hegal,
emphasizing the sovereignty of the state will and partially as a result of the rise in modern
states of legislature with complete internal legal sovereignty. There developed a strong trend
towards dualistic theory. The chief exponents of dualism have been the positivist writers like
Friepel and Anzilotti. For the positivist with their consensual conception of International law,
it was natural to regard state law as distinct system.

Dualistic view was developed by a prominent German scholar Triepel in 1899. For him,
International law and domestic or, municipal law existed on separate planes, the former
governing international relations, the latter relations between individuals and between the
individual and the state. The theory was later on followed by Italian jurist Anzilloti. Starke
says that the theory represents two entirely distinct legal systems, International Law having
an intrinsically different character from that of State law.

Dualists emphasize the difference between national and international law, and require the
translation of the latter into the former. Without this translation, international law does not
exist as law. International law has to be national law as well, or it is no law at all. If a state
accepts a treaty but does not adapt its national law in order to conform to the treaty or does
not create a national law explicitly incorporating the treaty, then it violates international law.
But one cannot claim that the treaty has become part of national law. Citizens cannot rely on
it and judges cannot apply it. National laws that contradict it remain in force. According to
dualists, national judges never apply international law, only international law that has been
translated into national law.

5|Page
"International law as such can confer no rights cognizable in the municipal courts. It is only
insofar as the rules of international law are recognized as included in the rules of municipal
law that they are allowed in municipal courts to give rise to rights and obligations".

The supremacy of international law is a rule in dualist systems as it is in monist systems.

Sir Hersch Lauterpacht pointed out the Court's determination to discourage the evasion of
international obligations, and its repeated affirmation of the self-evident principle of
international law that a State cannot invoke its municipal law as the reason for the non-
fulfillment of its international obligations.

If international law is not directly applicable, as is the case in dualist systems, then it must be
translated into national law, and existing national law that contradicts international law must
be "translated away". It must be modified or eliminated in order to conform to international
law. Again, from a human rights point of view, if a human rights treaty is accepted for purely
political reasons, and states do not intend to fully translate it into national law or to take a
monist view on international law, then the implementation of the treaty is very uncertain.

It is more popular theory than monistic theory and majority of nations follow this. In the view
of dualistic writers, International law and state law are two separate entities. Dualists
emphasize the difference between national and international law, and require the translation
of the latter into the former. It is also called Pluralistic Theory.

According to Dualistic theory, International Law and Municipal Law of several states are two
distinct, separate, and self- contained legal systems. Being separate systems, International
Laws would not as such form part of the internal law of the state: to the extent that in
particular instance rules of International Law may apply within a state they do so by virtue of
their adoption by the internal law of the state. Such a view avoids any question of the
supremacy of the one system of law over the other as they share no common field of
application: each is supreme in its own sphere.

Transformation of international law into municipal law may take place according to the
constitutional laws of that country. Under this international law and municipal law operates
on different levels. Proponents of “dualism” thinks that international law and domestic law
don’t operate on the same plane sphere, so there can’t really be any conflict between the two,
since they don’t have the same object and internal provisions are applied exclusively between
the state’s borders and can’t intervene in the international legal system.

6|Page
An international treaty would only be effective at an international level in order for it to be
applied domestically in a contracting state and that state would first have to adopt the
provisions of the treaty into a national provision (i.e. some type of domestic legislation). The
treaty& the international provisions of the treaty pass through a transformation, which allows
them to be applied as an internal regulation, part of the domestic law and not international
law.

Dualistic view was developed by a prominent German Scholar Triepel in 1899. For him,
international law and domestic laws existed in separate planes, the former governing
international relations, the latter relations between individuals and between the individuals
and the state. The theory was later on followed by the Italian jurist Anzilotti. Starke says that
the theory represents two entirely distinct legal systems, International law intrinsically have
different character from that of state law. The theory of dualism grew in nineteenth century
and twentieth century partly as a result of philosophical doctrine. For example, Hegal
emphasizing the sovereignty of the state will and partially as a result of the rights in modern
state of legislature with complete internal legal sovereignty, there developed a strong trend
towards the dualistic theory.

7|Page
 FEATURES OF DUALISTIC THEORY

There are some key features for dualist theory of international law; they are as follows:-

 Dualist theory is also called Pluristic Theory because of its dual nature.
 The main contention of Dualistic Theory is that it says both laws are separate and
different. According to this theory both International law and the Municipal laws have
distinct character and function and they cannot be mixed as one.
 According to the Dualistic Theory of International law; the subjects of International
Law and Municipal Law are also different i.e. subject of International Law is “State”
whereas the subject of Municipal Law is “Individual”
 This Dualistic Theory accepts that the law i.e. International Law and Municipal Law
also varies according to places as like Municipal Law varies from one state to another
whereas International Law varies from one nation-state to another.

Contrary of monist theory, dualism denies that international law and national law operate in
the same sphere, although it does accept that they deal with the same subject matter. But
according to Malenovský, the international and national laws are two different and separate
systems, which are based not only upon different jurisdictions and sanction bodies, but also
upon the different sources and the different subject of matter. According to Tripel,
international law governs relationship between states, whereas national law deals with
rights and obligations of individuals within state.

Dualism considers international law and national law as independent of each other, and both
systems are regarded as mutually exclusive and are therefore generally not able to get into
conflict with each other. Similarly, according to one of the exponents of this theory,
Anzilotti, the systems are so different, that no conflict between them is possible, however,
most of the dualists would assume that municipal law would be applied.

This theory says that International Law cannot be applied in sovereign states unless and until
the sovereign state specifically adopts that law by way of enactments.2

2
Theories relating International Law and Municipal Law – www.lawnotes.in

8|Page
 The Problem of “lex posterior”

In dualist systems, international law must be translated into national law, and existing
national law that contradicts international law must be "translated away". It must be modified
or eliminated in order to conform to international law. However, the need for translation in
dualist system causes a problem with regard to national laws voted after the act of translation.
In a monist system, a national law that is voted after an international law has been accepted
and that contradicts the international law, becomes automatically null and void at the moment
it is voted. The international rule continues to prevail. In a dualist system, however, the
original international law has been translated into national law - if all went well - but this
national law can then be overridden by another national law on the principle of “lex posterior
derogat legi priori”, the later law replaces the earlier one. This means that the country -
willingly or unwillingly - violates international law. A dualist system requires continuous
screening of all subsequent national law for possible incompatibility with earlier international
law.

If international law is not directly applicable, as is the case in dualist systems, then it must be
translated into national law, and existing national law that contradicts international law must
be "translated away". It must be modified or eliminated in order to conform to international
law. Again, from a human rights point of view, if a human rights treaty is accepted for purely
political reasons, and states do not intend to fully translate it into national law or to take a
monist view on international law, then the implementation of the treaty is very uncertain.3

3
Monistic and Dualistic Theories- www.wikipedia.org

9|Page
 Theories as to Relationship Between International Law and Municipal
Law: Dualism & Monism

Dualists see International Law and Municipal Law as distinct and separate – arising from
different sources, governing different areas and relationships, and different in substance. If
international law ever becomes part of domestic law, that can only be because domestic law,
has chosen to incorporate it. Monists on the other hand contend that there is only one system
of law, of which international and domestic laws are no more than two aspects. They justify
this by claiming that both of them govern sets of individuals; both are binding, and both are
manifestations of a single concept of law. Hence international law is superior and stronger, as
it represents the system’s highest rules – jurisdiction on a domestic level being only delegated
to states, which cannot avoid being bound to apply international law at the domestic level. So,
if domestic law anywhere conflicts with international law that is the State’s fault, and will not
excuse the State’s obligations. Viewed on the international plane, the dispute between these
two schools of thought is indeed academic.

“Formally international and domestic law as systems can never come into conflict. What
may occur is something strictly different, namely a conflict of obligations or an inability for a
state on the domestic plane to act in the manner required by international law”. It is well
settled that international law will apply to a state regardless of its domestic law and that a
state cannot in the international forum plead its own domestic law, or even its domestic
constitution, as an excuse for breaches of its international obligations. Viewed on the
domestic plane, however, the dispute is not merely an academic one, for the two schools of
thought lead to very different results. Whether international law forms part of domestic law is
a question, which in practice, is decided either by the Constitution or a Statute or by the
domestic Courts of each State. Monists say that it will always form such a part; dualists, that
it will form part only if the domestic law has expressly as impliedly incorporated it. In fact,
many States expressly accept international law as part of their domestic law, leaving
academicians to debate whether the acceptance was necessary or superfluous. But others do
not.

Every state has a duty to carry out in good faith its obligations arising from treaties and other
sources of international law, and may not invoke provisions in its own constitution or its laws
as an excuse for failure to perform this duty’. This formulation was later commended by the

10 | P a g e
U.N. to its Members in U.N.G.A. Resolution. Where international law becomes incorporated
in a State’s domestic law without the need for specific legislation, those parts of it, which are
sufficiently explicit to be enforceable by the domestic courts, are known as ‘self-executing’.
Some States provide by their Constitutions that certain provisions of international law shall
be self-executing. For example, the Constitution of the U.S.A. provides that international
treaties are part of the law of the land. Other countries have gone even further by not only
making international law self-executing, but assigning to it a rank in the domestic hierarchy
superior to all prior and subsequent legislation. But there are other States that do not accept
any international law as self-executing, or so accept it in part. For example, United Kingdom
(UK).4

4
“Dr. S.K. Kapoor”, “ International Law and Human Rights”, Central Law Agency, 18 th Edition 2011

11 | P a g e
 Differences Between the Dualistic and Monistic Theory

The authors are of the view that the two systems of law differ from each other on the
following grounds: -

a. Regarding Sources:

According to the dualists, while the sources of municipal laws are customs grown up
within the boundaries of the state concerned and the statutes enacted by the sovereign, the
Sources of international law are customs grown up among the states and law-making
treaties concluded by them.

b. Regarding Subjects:

Dualists are of the view that the subjects of international and municipal law are different
from each other. While municipal law regulates the relations between the individuals and
corporate entities and also the relation between the State and the individuals, International
Law regulates primarily the relations between States.

c. Regarding Substance of Law:

Substance of the laws of the two systems is also different. While municipal law is a law
of a sovereign over individuals, International Law is a law not above, but between
sovereign States. Its norms are created by its subjects themselves, i.e., by the States
through agreements where essence is a concordance of the will of States or by other
subjects of International Law. Thus, municipal law addresses itself to the subjects of the
sovereigns, International Law to the sovereigns themselves.

d. Regarding Principles:

Anzilloti is of view that while municipal laws in a state are obeyed because they are the
principles of State legislatures, International Law is obeyed because of the principle of
pacta sunt servanda. Thus while in municipal law there is a legal sanctity, International
Law is followed because States are morally bound to observe them.

12 | P a g e
 e. Regarding Dynamism of the Subject-Matter:

Subject-matter of the two systems is also different. While the subject-matter of

International Law has always remained dynamic, the subject-matter of the municipal law
is limited. Starke has observed that since 1945 International Law has expanded to so great
an extent into many different areas, while domestic laws have continued to be concerned
with a more limited range of subject-matters.

f. The subject of state law is individual; while subject of International Law is state
solely and exclusively.
g. There juridical origins are different; the source of state law is the will of the state
itself, while source of International Law is the common will of states.
h. International law consists of most of part of customary and treaty rules whereas
municipal law on the other hand consist mainly judge made law and of statute passed
by Municipal Statutes.

There are several differences between the two systems, and therefore they are applied
distinctly in different areas. Anzilotti states that the two systems are so distinct that no
conflicts between them are possible. However, it does not mean that rules of International
Law can never be applied by the municipal courts. Municipal courts would certainly apply
them as and when rules of International Law are considered to be part of the law of the land.
It can occur when the rule of International is incorporated in national law simply because it is
a rule of International Law. The automatic adoption is said to operate unless there is some
clear provision of national law, such as a statute or judicial decision, which precludes the use
of International Law rule by the national court. Consequently, once it is established that an
International Law rule exists and would be relevant to the case in the hand, under the doctrine
of incorporation, and then international rule will automatically apply before national courts.
Municipal the national law i.e., when they have been expressly adopted by the States.
Therefore, a national court cannot apply a particular rule of International Law until that
particular rule has been deliberately transformed into national law in the appropriate manner,
as by legislation.

Transformation of International Law into municipal law may take place according to the
constitutional provisions of the States, and therefore the procedure may be different from
State to State. The difference between incorporation and transformation is that the former

13 | P a g e
adopts International Law into municipal law just because it is International Law, whereas the
latter requires a deliberate act on the part of the State concerned. Further, incorporation
implies that rules of International Law are part of national law unless excluded,
transformation implies that rules of International Law are part of municipal law only if
deliberately included.

It is to be noted that incorporation and transformation are therefore the “theories concerning
the application of the International Law within the municipal sphere”. They are, in no way be
called the theories of relationship of the two systems. Contacts between the two legal systems
are possible but they require express or tacit implementation of the rules International Law by
the State and vice versa.

According to dualists, municipal courts shall apply municipal law in case of a conflict
between International Law and municipal law. Thus, municipal law shall have primacy over
International Law according to this view. Further, when a case comes before the international
court or tribunal, it applies International Law rather than to municipal law in case of a
conflict between them. In the Greco-Bulgarian Communities case, the Permanent Court of
International Justice stated that it is a generally accepted principle of International Law that in
relation between Powers who are Contracting Parties to a treaty, the provisions of municipal
law cannot prevail over those of the treaty. The International Court of Justice in the Advisory
Opinion of April 27, 1988, on Applicability of the Obligations to Arbitrate under U.N.
Headquarters Agreement of 1947 observed that International Law prevails over domestic law
is a ‘fundamental principle of International Law’.5

5
“H. O. Agarwal”, “International Law and Human Rights”, Central Law Publications, 21st Edition 2017

14 | P a g e
 CRITICISM AND DISADVANTAGES

Dualist theory is subject to many criticism and disadvantages, such as: -

1. International law and municipal law differ from each other implies that International
Law and municipal law differ from each other implies that International Law cannot
be a part of municipal law and can never operate as the law of the land unless they are
specifically adopted or transformed through municipal custom or statutory enactment.
It is not correct because there are certain fundamental principles of International Law
which are binding upon a State, even against its own will.

2. It is not correct to say that International Law regulates the relations of States only. At
present, it regulates certain activities of individuals as well. If individuals commit
certain wrongs, they can be given punishment in accordance with the rules of
International Law.

3. No doubt pacta sunt servanda is an important principle of International Law, but it

cannot be said that it is the only principle on which International Law rests. There are
certain rules which are legally binding on a State.

4. Seeing International Law and Municipal Law as separate would mean that
International Law cannot be a part of Municipal Law . It cannot be operated as law of
land unless specifically transformed.

5. This is incorrect because internationally recognized fundamental rights are applicable

even in municipal law even if state does not like it

6. It is incorrect to say that international law regulates the relationship between states.6

6
“H. O. Agarwal”, “International Law and Human Rights”, Central Law Publications, 21st Edition 2017

15 | P a g e
 CONCLUSION

Thus at last it can be said that Dualism is historically rooted in the doctrine of separation of
powers and in the English positivist school of the seventeenth and eighteenth century, which
rejected the monist belief in the unity of domestic and international law in favour of a
distinction of domestic from international law on the basis of the sovereignty of nations.
Dualists regard international law and domestic law as two completely different systems of
law. According to Malenovsky, international and municipal law are based not only on
different jurisdictions and sanction bodies, but also on different subject matter and sources.
While international law governs the relationship between states, domestic law governs the
rights and obligations of individuals within states, and while International law originates from
custom, domestic law, is a product of legislation. Furthermore, dualists assert that while
international law is founded on the common willingness of several states, domestic law
depends exclusively on the unilateral willingness of one State. Thus, international law creates
rights and duties among States, which each individual State must determine the manner in
which it complies with. The result of this is that international human rights norms ratified by
dualist states are not enforceable until they have been incorporated or transformed into
domestic law.

The debate on the difference and supremacy between international law and municipal law by
monist and dualist has been characterised by as ‘unreal, artificial and beside the point’. As,
since both systems of law do not operate in a common field, there can be no conflict because
any apparent conflict in the domestic field would be solved by the conflict of law rules of the
forum, while that of international field will be solved by international law. It is said that the
relationship between international and domestic law to the relationship of two sovereign
countries, where there is conflict, the conflict of law rules determine how it is settled before
the relevant national court. It is useless to discuss the supremacy of international law as each
is supreme in its own sphere.

16 | P a g e