National Law and International Human Rights Law

Cases of Botswana, Namibia and Zimbabwe

Onkemetse Tshosa

• Publisher: Routledge
• Year: 2017
• Print ISBN: 9781138722231
• eBook ISBN: 9781351759021
• Edition: 1
• Topic: Ciencias sociales
• Subtopic: Sociología

This title was first published in 2001. This text critically examines the role and relevance of international human rights law in the process of protection, especially in the cases of Botswana, Namibia and Zimbabwe. It argues that international human rights law does have a role to play in the protection and, indeed the enforcement of human rights in these countries and that there is an emerging trend to that effect.

Part I:
Introduction

1 Theoretical Issues: Monism and Dualism

The theoretical standpoints that have been advanced with an endeavour to explain and clarify the relationship between international law and municipal law are monism and dualism. Treatises on these theories are copious and such an analysis can only be brief.¹ These theories provide the background of, and philosophical clarity to, the analysis. They help to articulate the precise status and role of international human rights law in municipal law. The study, however, demonstrates that, in reality, an examination of the inter-relation of international law to municipal law purely on the basis of these theories is an oversimplification. It does not accord with actual State practice.

Dualist Theory

In its general form, dualism, also known as the transformation or adoption theory, perceives international law and municipal law as two distinct and independent legal orders each having an intrinsically and structurally distinct character.² The two legal orders are two separate and self-contained spheres of legal action, and theoretically there should be no point of conflict between them. Because the two are separate systems, international law would not as such form part of municipal law of the state: to the extent that in particular instances 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 the internal law and not as international law.³

The dualist school begins its argument with the proposition that law is an act of state will. Thus municipal law can be differentiated from international law in that it is a manifestation of this will internally directed, as distinct from the participation in a collective act of will by which the sovereign powers undertake obligations with respect to other sovereign powers.⁴ By emphasising the sovereignty of state will, dualism reveals the influence of the rise in modern states of legislatures with complete internal sovereignty.

Dualism has benefited from the influence of several positivist theorists. The foremost exponents of this theory were Hegel, Anzilotti and Triepel.⁵ These theorists adopted the notion of consent as an important factor in investigating the relation of international law to municipal law. Because they held the view that international law was based on the consent of sovereign states, it was as such a distinct and independent legal system from municipal law. Triepel, for instance, treats the two legal systems of municipal law and international law as entirely distinct in nature. He asserts firstly, that the two legal systems differ in the particular social relations they govern; state law deals with the social relations between individuals and international law regulates the social relations between states, who alone are subject to it.⁶ In the second sense, Triepel argues, a view widely held by other dualists, that the two systems have different juridical origins. The source of municipal law is the will of the state itself and the source of international law is the common will of states (gemeinwille).⁷

Thirdly, according to Anzilotti, the two legal systems are differentiated by the fundamental principles by which each system is conditioned. Municipal law is conditioned by the norm that legislation is to be obeyed whereas international law is conditioned by the pacta sunt servanda principle.⁸ The latter principle commands that agreements between states are to be respected. This principle is at the heart of modern international law especially conventional international law and underlies the basis for performance of treaty obligations.⁹ Because of this conditioning factor, Anzilotti concludes that the two systems are so distinct that no conflict between them is possible.

The Hegelians therefore stress that international law and municipal law exist separately and each is supreme in its own sphere. In cases of conflict, the Hegelians view international law as inferior to and hence weaker than municipal law. The predominance of municipal law is predicated on the notion that a state has a sovereign right to determine which rules of international law are to have effect in municipal sphere. Consequently, international law, including international human rights law, may create rights for individual citizens and be applied by municipal courts only if it has been adopted by such courts or transformed into municipal law through a legislative process. Thus the internal validity and application of international human rights norms is conditioned by a positive legislative enactment or judicial adoption.

Monist Theory

Monism, or alternatively the doctrine of automatic incorporation, maintains that international law and municipal law constitute aspects of a single universal system. This school of thought posits that all rules of law ultimately regulate the behaviour of the individual. The only difference is that in the international sphere the consequences of such behaviour are attributed to the state and in the municipal law sphere they are attributed to the individual citizen.¹⁰

Proponents of monistic construction of the relation of international law to municipal law view all law as a single system composed of binding rules, whether those rules are obligatory on states or entities other than states. The two systems, as systems of legal rules, are inter-related parts of one single legal structure and the various national systems of law are derived by way of delegation from the international legal system.¹¹ They are manifestations of one single concept of law binding human beings.

Monism is a feature of the natural law school. One of its leading theorists was Hugo Grotius, a Dutch scholar and diplomat, and the father of the rationalist school of natural law. In Prolegomenon 16 of his De jure Belli ac Pacis (1625) Grotius constructs a kind of a “geneacological tree with human nature as the mother of natural law at the head.”¹² He proceeded to represent consent as the mother of the ius civile and the jus gentium, adding that consent itself derives its force from natural law, so that human nature turns out to be the great grandmother of the ius civile and the ius gentium. In its origins the monist doctrine owed much to this rationalist construction of a universal order.

The main exponents of monism are Kelsen and Lauterpacht. The former, at least, before later aligning himself towards positivism in his later writings,¹³ argued that the international legal order is significant only as part of a universal legal order which comprises also the national legal orders of various states.¹⁴ Starke has articulated Kelsen’s position thus:

For him, (Kelsen) jurisprudence is a science, and the object of a science is formed by a cognition and its unity. Unity of cognition connotes unity of object, and this unity must be found in the relation between municipal law and international law. Dualism is inconsistent with the axiomatic unity of science. Any construction other than monism is bound to constitute a denial of the legal character of international law.¹⁵

Kelsen predicates his argument on what he calls the “basic norm” or the grundnorm and argues that both systems of law derive their legal validity from the basic norm and as such they belong to the same system of legal norms.¹⁶

Lauterpacht asserts that it is ultimately the conduct of the individuals which is regulated by law, whether international or national, the only difference being that in the international sphere the consequences of such conduct are attributed to the State. The fact that municipal courts may be bound by the law of their States to enforce statutes which are contrary to international law merely shows that because of the weakness of international law, States admit and tolerate what is actually a conflict of duties within the same legal system, a phenomenon not altogether unknown in other spheres of national law. In any case, from the viewpoint of international law the validity of a pronouncement of a national court is in such cases purely provisional. It leaves intact the international responsibility of a state since it is a well recognised rule that a state is internationally responsible for the decisions of its courts, even if in conformity with the law of the state concerned, whenever that law happens to be contrary to international law.¹⁷

The monists argue that not only do international legal rules and various national legal orders constitute a single universal system but in cases of conflict national legal orders take subordinate position.¹⁸ A domestic tribunal faced with a problem involving a rule of international law is obliged to apply a rule of international law. In fact, according to monism, the international legal order determines the territorial and temporal spheres of validity of the national legal orders, thus, making possible for the co-existence of a multitude of states.¹⁹ However, inverted monism concedes primacy to municipal law.²⁰

The naturalists, and also modern monists, believe that individual citizens, not states, are the real subjects of international law. International law is not by its nature inapplicable to individuals. It recognises individuals as bearers of legal rights and duties of the international legal system. According to Morgenstern:

The essence of the monist view of the relation of international law and national law is that rules of law, intern...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Abbreviations
• Author’s Note
• Part I: Introduction
• Part II: Colonial Period
• Part III: Independence - New Departures
• Part IV: Post-independence Practice
• Part V: General Conclusions
• Bibliography