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International Law And Municipal Law Essay

5804 words - 23 pages

_____________________________________________________________________________1.0 General Principles _____________________________________________________________________________IntroductionInternational law is concern with the legal relationship between sovereign states whereas municipal law is the technical name given by international lawyers to the national or internal law of a state, it concern with the legal relation between individual within a states. Yet, international law has an impact on municipal law and vice versa. Sometimes, however, there exist an overlapping between international law and municipal law as international law does give some rights and obligations directly to individual, i.e. human rights. Thus, it is necessary to establish precisely how the rules of one system affect the decision-making process in the courts of other.The question of the relationship between international law and municipal law can give rise to many practical problems, for examples, how do rules of international law operate in the national legal system. Besides, in the case of conflict between international law and national law, which law prevails? Thus, we must have a good understanding on the general rules on the relationship between international law and municipal law and take note that different rules apply to different countries. Each state will have its own rules of internal constitutional law as well as specific legislation provisions that tell us how international law is to be utilised in practice in the national courts of that state. Consequently, we must consider the theories and rules that have been developed to explain the relationship of international law and the municipal law on a general level before we determine the practical matters.Theories regarding the relationship between international law and municipal law:MonismAccording to the monistic theory, international law and municipal law are both species of one genus - law. They are simply two components of single body called 'law'. Monists like Kelsen, Kunz and Wright have a unitary concept of law. In short, they believe that international law and municipal law are part of a single legal order. However, international law may require one results and the provision of the national law another. If this happen in a concrete case, international law is said to be prevail.In PLO Observer Mission Case (Advisory Opinion), the ICJ took a monistic position and held that "the fundamental principle of international law that international law prevails over domestic law." It have been, however, critic that although monist theory sound, yet in practice states do not follow this theory as they say that international law and the municipal law are two separate legal system and that states follow international law only when they give their consent to it.DualismOn the other hand, the 'dualist theory' assumes that international law and national law are two separate legal systems which exist independently of each...

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