Tutor Marked Assignment

Public International Law

LLU5712

B.S.T Kariyawasam

Registration No 413351727

Colombo Regional Centre

“Evolution of Public International Law in Sri Lanka: A Transition from Dualism to
Monism”

Globalization has brought complexity to international relations, where international law

plays a pivotal role in shaping relationships among sovereign states and safeguarding
individual and environmental rights on a global scale. As an active participant in the
international arena, Sri Lanka has undergone a transformative journey. This paper explores
how Sri Lanka, a nation rich in historical and legal heritage, has evolved from a traditional
dualist approach to an emerging monist perspective regarding the incorporation of public
international law into its domestic legal framework. This evolution has been influenced by
various factors, including Sri Lanka's colonial history, its membership in the United
Nations, and its commitment to the rule of law1.

Monists, such as Hans Kelsen and Lauterbach, espoused a view rooted in universalism and
Kantian philosophy, positing that all law forms a unified system, with international and
municipal law as integral parts of a single legal order. In contrast, dualists like Agnolotti
and Triepel drew from Hegel's philosophy, asserting the distinctiveness of international and
national legal systems. Monism leans on naturalistic theory, while dualism aligns with
positivism2

The legacy of dualism was endowed with British imperialists who changed their monist
perspective into dualist perspective in common law and it was affirmed by 19th century 3.
Hence, it maybe deduced that , as colony, Sri Lanaka also followed the same tradition. Sri
Lanka insulated its domestic legal system from seeping of international law by erecting
barriers of dualism. In Leelawati v Minister of Defence4 the dualist approach was endorsed
even if the judgement was in breach of the Universal Declaration of Human Rights which
was explicitly not incorporated in domestic system. This dualistic approach seemed to be
rooted in the desire to safeguard national sovereignty and maintain control over the

1
M.Sornarajah ‘The Reception of International Law in the Domestic Law of Sri Lanka in the Context of the
Global Experience’. Sri Lanka Journal of International Law, (2016) 25(1), 1-28.
2
R.M.S. Dilhani, 'The Reception of International Law and the Application of Monism and Dualism in Sri
Lanka' Sri Lanka Law Review (2023) 12(1), 1-20.
3
Crawford J, The International Law Commission's Articles on State Responsibility: Introduction, Text, and
Commentaries (OUP, 2002)
4
(1965) 68 NLR 487

1
incorporation of international obligations. However, recent developments suggest a
noteworthy shift towards monism, where international law is incorporated into domestic
law.

Transition from dualism to monism is manifested in three paths; judicial decisions,

incorporation of international treaties into domestic law and statutory provisions that
impliedly allow international law to reside in domestic laws. However, those are
interrelated and overlapped and each of them can be critically analyses in following
manner.

In the case of Blulankulame at el. v Ministry of Interior Development5, which involved

phosphate mining and environmental issues, marked a significant milestone. The supreme
court incorporated articles of Stockholm and Rio declarations, principles of
intergenerational equity and principles of public trustee discussed in the case of Hungary
v. Slovakia 6. In this case, fundamental rights and environment rights of citizenry were
successfully upheld by applying of international law and incorporating international
environmental principles into domestic law. Later, this was endorsed in other cases also in
Sri Lanka7

The Supreme Court had agreed that air piracy had developed into recognized customary
international law even before the Offenses Against Aircraft Act of 1982 was enacted in Sri
Lanka in the landmark case of Seppala Ekanayake v. AG8.

International law and standards generally recognize that the families of victims of human
rights violations have the right to compensation9. Supreme court of Sri Lanka also followed
it and held right to compensation in Sriyani Silva v. Didymalgia at al10.The Supreme Court

5
[2000] 3 Sri LR 243
6
Case of the Gabcikova Nagymaros Project [1997] ICJ Rpts 228.
7
Ravindra Gunawardena Kariyawasam v. Central Environment Authority et al.[2019] SC FR Application
No. 41/2015, Environmental Foundation Ltd V. Central Environment Authority et al [2009]1 Sri LR and
Centre for Environmental Justice (Guarantee) Ltd.v. Conservator General, Department of Forest
Conservation at al.[2020] C.A. (Writ) 91/2015
8
[1988] 1 SLR 46)
9
United Nations (ed), ‘Basic Principles and Guidelines on the Right to a Remedy and Reparation ...’
(Human Rights Instruments, 15 December 2005) <https://www.ohchr.org/en/instruments-
mechanisms/instruments/basic-principles-and-guidelines-right-remedy-and-reparation> accessed 1
October 2023
10
[2003] SC NO. 471/2000 (FR), 2003

2
also cited Article 9 of the Universal Declaration of Human Rights (UDHR) and Article 9
of the International Covenant on Civil and Political Rights (ICCPR) to support its decision
In Aniruddha Ratwatte and Others v. The Attorney General11.

As per those judicial decisions, Sri Lanka's judiciary has increasingly embraced monism,
particularly in the realm of human and environmental rights. Courts have discussed in their
judgments affirming the direct applicability of international human rights conventions,
such as the ICCPR, in domestic law. By now vast scope of international human rights law
and environmental law have underpinned domestic courts to protect human and
environmental rights

The shift towards monism in the legal landscape, as exemplified by the decision in Nall
Ratnam Singarasa v The Attorney General12, encountered a significant impediment. This
decision marked a complete reversal of the established judicial inclination towards monism
in matters concerning human and environmental rights, as it contradicted the
recommendations of the Human Rights Committee.12 This has been observed as a judicial
waywardness and an unfortunate aberration by M. Sornarajah .13 It seems that courts in
Sri Lanka have increasingly relied on international human rights norms in their decisions,
in the absence of explicit domestic legislation.

Sri Lanka's accession to various international conventions underscores its willingness to

integrate international human rights norms into domestic law. For instances, Fundamental
rights of the constitutions were also drawn from UDHR. There are many more adoption of
international law into domestic legal framework in form of acts.14 Therefore, Sri Lanka just
being a dualist country does not mean that it is too far away from monism.

11
[2003] SC APPEALS NOS. 2/2003 TO 16/2003
12
[2006] SC Spl (LA) No 182/99
13
Sornarajah (n 1)
14
Sri Lanka acceded to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment (CAT) on 3 January 1994 and introduced the Convention against Torture and other Cruel,
Inhuman or Degrading Treatment or Punishment Act, No. 22 of 1994, to operationalize its obligations under
CAT. Secondly, Sri Lanka's accession to the International Covenant on Civil and Political Rights (ICCPR)
on 11 June 1980 led to the enactment of the International Covenant on Civil and Political Rights Act, No. 56
of 2007, which effectively enshrined certain rights recognized by ICCPR in its national legislation.
Additionally, Sri Lanka ratified the Convention on the Elimination of All Forms of Discrimination against
Women (CEDAW) on 5 October 1981 and incorporated CEDAW's principles into domestic law through the
Women's Charter of Sri Lanka in 1993. Furthermore, Sri Lanka's accession to the International Convention

3
There are certain statutory provisions that facilitate international laws to seep into domestic
laws. In Sri Lankan Constitution, Article 27 (15) stated that the state shall promote
international peace, security, cooperation, justice, equality, and respect for international
law and treaties. The president’s power has also been limited by article 33(h) stating that
the president cannot take any actions that violate international law. Hence, these articles
ensure Sri Lanaka’s obligation to the international law.

Article 156 A of the Constitution of Sri Lanka implements the United Nations Convention
Against Corruption (UNCAC) and any other international convention relating to the
prevention of corruption. Article 157 of the Constitution states that international treaties
that have been ratified by Sri Lanka are binding on the government.

Section 2 of the Trusts Ordinance, which was enacted in 1917 enables English law to legal
matters relating to trusts in Sri Lanka. Section 100 of evidence ordinance states that issues
should be resolved according to English Law of Evidence.

Sri Lanka's evolution from a dualist to a more monist approach in the reception of
international human rights law marks a significant development in the country's legal
landscape However, challenges such as selective application, lack of enforceability,
political pressures, and resource constraints persist and require careful consideration.

M. Sornarajah, a renowned international law scholar, strongly advocates for the

transformation of Sri Lanka's legal system from dualism to monism, endorsing a more
monist approach to environmental and human rights law.

In recent years, Sri Lanka's legal landscape has undergone a significant transformation,
with a growing emphasis on international human rights and environmental law. This shift

on the Elimination of All Forms of Racial Discrimination (ICERD) on 18 February 1982 led to the enactment
of the Prevention of Social Disabilities Act, No. 21 of 1957, to outlaw discrimination on various grounds,
including race and religion.
While there is no specific legislation solely dedicated to the International Covenant on Economic, Social and
Cultural Rights (ICESCR), which Sri Lanka acceded to on 11 June 1980, certain provisions of ICESCR are
reflected in the Constitution of Sri Lanka, encompassing rights such as education, health, and social security.
Lastly, Sri Lanka's accession to the International Convention on the Protection of the Rights of All Migrant
Workers and Members of Their Families (ICMW) on 11 March 1996 prompted the enactment of legislation,
including the Sri Lanka Bureau of Foreign Employment Act, No. 21 of 1985, and the Foreign Employment
Agency Act, No. 32 of 1985, aimed at regulating and safeguarding the rights of migrant workers within its
borders.

4
has created a new paradigm for the country's approach to international law, one that
combines elements of both monism and dualism.

I advocate for a dualist approach to economic treaties, as Sri Lanka needs to achieve
important economic milestones while adopting monist approach to human and
environmental rights. This blended approach would allow Sri Lanka to balance its domestic
needs with its international obligations.

In conclusion, I support a blended approach to international law as a pragmatic and

balanced one that would enable Sri Lanka to uphold its international commitments while
also advancing its domestic interests such as economy and national security.

5
Table of Cases
Aniruddha Ratwatte and Others v. The Attorney General[2003] SCA no 2/2003 to
16/2003
Bulankulame at el. v Ministry of Interior Development [2000] 3 Sri LR 243
Centre for Environmental Justice (Guarantee) Ltd. v Conservator General, Department of
Forest Conservation at al.[2020] C.A. (Writ) 91/2015
Environmental Foundation Ltd V. Central Environment Authority et al [2009]1 Sri LR
Hungary v. Slovakia [1997] Gabcikova Nagymaros Project ICJ Rpts 228.
Leelawathie v Minister of Defence [1965] 68 NLR 487
Ravindra Gunawardena Kariyawasam v. Central Environment Authority et al.[2019] SC
FR Application No. 41/2015
Sepala Ekanayake v. AG [1988] 1 SLR 46
Singarasa v The Attorney General [2003] SC NO. 471/2000 (FR), 2003

Table of Legislations
Bureau of Foreign Employment Act 1985
Constitution of the Democratic Socialist Republic of Sri Lanka 1978
Convention against Torture and other Cruel, Inhuman or Degrading Treatment or
Punishment 1994
Evidence Ordinance 1895
Foreign Employment Agency Act 1985
International Covenant on Civil and Political Rights Act 2007
Prevention of Social Disabilities Act 1957
the Women's Charter of Sri Lanka 1993
Trusts Ordinance 1917

Bibliography
Crawford J, The International Law Commission's Articles on State Responsibility:
Introduction, Text and Commentaries (OUP, 2002)
Dilhani R.M.S ‘The Reception of International Law and the Application of Monism and
Dualism in Sri Lanka’ (2016)Sri Lanka Law Review’ 12(1), 1-20.
Sornarajah, M. ‘The Reception of International Law in the Domestic Law of Sri Lanka in
the Context of the Global Experience’ (2019) Sri Lanka Journal of International Law
25(1), 1-28.