MONISM AND DUALISM

MONISM AND DUALISM

The role of the state in the modern world is a complex one. According to legal theory, each state is sovereign and equal. In reality, with the phenomenal growth in communications and consciousness, and with the constant reminder of global rivalries, not even the most powerful of states can be entirely sovereign.

Interdependence and the close-knit character of contemporary international commercial and political society ensures that virtually any action of a state could well have profound repercussions upon the system as a whole and the decisions under consideration by other states.

Also with the rise and extension of international law, questions begin to arise placing ,against each other, the role played by the state within the international system and concerned with the relationship between the internal legal order of a particular country and the rules and principles governing the international community as a whole. Municipal law governs the domestic aspects of government and deals with issues between individuals, and between individuals and the administrative apparatus, while international law focuses primarily upon the relations between states. Nevertheless, there are many instances where problems can emerge and lead to difficulties between the two systems.

In a case before a municipal court a rule of international law may be brought forward as a defence to a charge. The question then is how the court deals with such a situation. Theories have been developed to help in that regard and these are the theories of monism and dualism.

Monism is the view that reality consists of one fundamental ultimate essence. Monists accept that the internal and international legal systems form a unity. Both national legal rules and international rules that a state has accepted, for example by way of a treaty, determine whether actions are legal or illegal. In most so-called "monist" states, a distinction between international law in the form of treaties, and other international law, like for example customary international law or jus cogens, is made. Such states may thus be partly monist and partly dualist.

In a pure monist state, international law does not need to be translated into national law it is just incorporated and have effects automatically in national or domestic laws. The act of ratifying an international treaty immediately incorporates the law into national law; and customary international law is treated as part of national law as well.

International law can be directly applied by a national judge, and can be directly invoked by citizens, just as if it were national law. A judge can declare a national rule invalid if it contradicts international rules because, in some states, the latter have priority. In other states, like in Germany, treaties have the same effect as legislation, and by the principle of lex posterior, only take precedence over national legislation enacted prior to their ratification.

In its most pure form, monism dictates that national law that contradicts international law is null and void, even if it predates international law, and even if it is the constitution. Accordingly, state practice and decided cases have established this provision and thereby prevented countries involved in international litigation from pleading municipal law as a method of circumventing international law. Article 27 of the Vienna Convention on the Law of Treaties, 1969 lays down that in so far as treaties are concerned, a party may not invoke the provisions of its internal law as justification for its failure to carry out an international agreement, while article 46(1) provides that a state may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent.''
On the other hand 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 national 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.
"International law in dualist states as such can confer no rights cognisable 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 monist 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.

In terms of theories, positivism stresses the overwhelming importance of the state and tends to regard international law as founded upon the consent of states. It is actual practice illustrated by custom and by treaty that formulates the role of international law, and not formalistic structures, theoretical deductions or moral stipulations.

This theory is known as dualism (or sometimes as pluralism) and stresses that the rules of the systems of international law and municipal law exist separately and cannot purport to have an effect on, or overrule, the other Those writers who disagree with this theory and who adopt the monist approach tend to fall into two distinct categories: those who, like Lauterpacht, uphold a strong ethical position with a deep concern for human rights, and others, like Kelsen, who maintain a monist position on formalistic logical grounds. The monists are united in accepting a unitary view of law as a whole and are opposed to the strict division posited by the positivists.

A third approach, being somewhat a modification of the dualist position and formulated by Fitzmaurice and Rousseau amongst others, attempts to establish a recognised theoretical framework tied to reality. This approach begins by denying that any common field of operation exists as between international law and municipal law by which one system is superior or inferior to the other. Each order is supreme in its own sphere, much as Ugandan law and Nigerian law are in Uganda and Nigeria.

So regardless of the approach taken by a state, dualist or monist, the end result is that international law prevails as superior to municipal law as the issue is only of how does it get enforced and applied.

UGANDA

For Uganda's case the current Uganda Constitution was promulgated on 8th October 1995.  The Constitution and the Ratification of Treaties Act constitute the municipal law on treaties within Uganda. The Constitution lists 29 National Objective and Directive Principles on State Policy.  Objective and Principle 28 relates to Uganda's Foreign Policy which are helpful in determining whether Uganda is a dualist or monist state.

Uganda's Foreign Policy is to respect international law and treaty obligations, which override municipal law. Ugandan courts will to this extent accord treaty policy benefits to individuals thereby negating oppressive municipal law provisions. The State and all persons making policy decisions are bound to take into account the Objectives and Principles so as to promote the establishment of a just, free and democratic society.

In the same spirit the President must report to Parliament and the nation at least once a year, on steps taken to ensure realization of the Objectives and Principles. Further any treaties, which had been signed, affirmed or in force, prior to promulgation of the Constitution still bind and have the force of law in Uganda. In Uganda Treaty provisions will prevail in case of any conflict arising from domestic legislation.  In the same vein municipal legislation and judicial practice must conform to treaty provisions.
Effective 8th October 1995, Uganda can only conclude treaties or conventions, only after the Attorney General has issued legal advice.  The Constitution divests the Attorney General of any discretion to conclude any treaty, where the party is a foreign government, government agency or an international organization.

Parliaments ratification jurisdiction is reserved for treaties on armistice, neutrality, peace or the subject of which require amendment of the Constitution.  All other treaties are ratified by Cabinet. The Minister for Foreign Affairs executes all ratified treaties and is the Ugandan depository officer for all treaties to which Uganda is a party. The Attorney General must table, before Parliament, any ratified Treaty.
Therefore Uganda is largely a dualist state because the treaty must be tabled before parliament and domesticated for example the diplomatic Immunities and privileges Act which is the copy of the Vienna Convention on Diplomatic Relations.

BRITAIN

It is part of the public policy of the UK that the courts should in principle give effect to clearly established rules of international law. Various theories have been put forward to explain the applicability of international law rules within the jurisdiction of Britain. One expression of the positivist-dualist position has been the doctrine of transformation. This is based upon the perception of two quite distinct systems of law, operating separately, and maintains that before any rule or principle of international law can have any effect within the domestic jurisdiction, it must be expressly and specifically 'transformed' into municipal law by the use of the appropriate constitutional machinery, such as an Act of Parliament.
This doctrine grew from the procedure whereby international agreements are rendered operative in municipal law by the device of ratification by the sovereign and the idea has developed from this that any rule of international law must be transformed, or specifically adopted, to be valid within the internal legal order of Britain.
Another approach, known as the doctrine of incorporation, holds that international law is part of the municipal law automatically without the necessity for the interposition of a constitutional ratification procedure. The best-known exponent of this theory is the eighteenth-century lawyer Blackstone, who declared in his Commentaries that:  the law of nations, wherever any question arises which is properly the object of its jurisdiction, is in Britain adopted in its full extent by the common law, and it is held to be a part of the law of the land.

This doctrine which refers to customary international law and different rules applies to treaties. When it comes to customary international law, the doctrine of incorporation in Britain has become the main British approach. It is an old-established theory dating back to the eighteenth century, owing its prominence at that stage to the considerable discussion then taking place as to the precise extent of diplomatic immunity.

In the case of Buvot v. Barbuit, Lord Talbot declared unambiguously that 'the law of nations in its full extent was part of the law of England', so that a Prussian commercial agent could not be rendered liable for failing to perform a decree. This was followed twenty-seven years later by Triquet v Bath where Lord Mansfield, discussing the issue as to whether a domestic servant of the Bavarian Minister to Britain could claim diplomatic immunity, upheld the earlier case and specifically referred to Talbot's statement.

However a rule of international law would not be implemented if it ran counter to a statute or decision by a higher court. In the nineteenth century, a series of cases occurred which led many writers to dispute the validity of the hitherto accepted incorporation doctrine and replace it with the theory of transformation, according to which the rules of customary international law only form part of English law if they have been specifically adopted, either by legislation or case-law.

The turning point in this saga is marked by the case of R v. Keyn which concerned a German ship, the Fruncoizia, which collided with and sank a British vessel in the English Channel within three miles of the English coast. The German captain was indicted for manslaughter following the death of a passenger from the British ship, and the question that came before the Court for Crown Cases Reserved was whether an English court did indeed have jurisdiction to try the offence in such circumstances.

The Court came to the conclusion that no British legislation existed which provided for jurisdiction over the three-mile territorial sea around the coasts. It was true that such a rule might be said to exist in international law, but it was one thing to say that the state had the right to legislate over a part of what had previously been the high seas, and quite another to conclude that the state's laws operate at once there, independently of any legislation. One thing did not follow from another.

The question, as Lord Cockburn emphasised, was whether, acting judicially, the Court could treat the power of Parliament to legislate as making up for the absence of actual legislation. The answer came in the negative and the German captain was released. This case marked a change to a transformation approach which is in essence a dualist approach.

The problem therefore is often one of the uncertainty of existence and scope of customary law. In Mortensen v. Peters, a Danish captain was convicted by a Scottish court for contravening a fishing by-law regarding the Moray Firth. His ship had been operating within the Moray Firth and was within the area covered by the relevant by-law, but it was beyond the three-mile limit recognised by international law.

The issue came to the Scottish Court of Justiciary, where Lord Dunedin held that statutes had predominance over customary law, and a British court would have to heed the terms of an Act of Parliament even if it involved the breach of a rule of international law. This is so even though there is a presumption in British law that the legislation is to be so construed as to avoid a conflict with international law. Where such a conflict does occur, the statute has priority and the state itself will have to deal with the problem of the breach of a customary rule.

This modified incorporation doctrine was clearly defined by Lord Atkin in Chung Chi Cheung v R where he noted that: international law has no validity except in so far as its principles are accepted and adopted by our own domestic law.. .The courts acknowledge the existence of a body of rules which nations accept among themselves. On any judicial issue they seek to ascertain what the relevant rule is, and having found it they will treat it as incorporated into the domestic law, so far as it is not inconsistent with rules enacted by statutes or finally declared by their tribunals.

Therefore Britain practices a largely dualist system when it comes to treaties but an almost monist approach when it comes to customary international law.

KENYA

In general, Kenya has a strong record of ratifying major international and regional human rights instruments. It is a party to six of the seven core UN human rights treaties, with the exception being the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families.

In a major leap, the 2010 Constitution of Kenya recognises international law as part of the domestic legal order. This provides courts with the opportunity to seek inspiration from the non-municipal legal framework when resolving disputes. However, the manner in which the Constitution incorporates international law is ambiguous and confusing. It fails to create a rank that can be used to resolve conflicts between local legislation and a rule of international law.
This lack of affirmation of the place of international law in the normative rank has spawned judicial interpretation that has accorded international law the same status as statute law. This not only diminishes the weight that courts should place on international law, but also provides courts with a certain amount of discretion whenever a conflict with an Act of Parliament arises. In addition to treaties ratified by Kenya, the Constitution also refers to general rules of international law as being part of the law of Kenya.

This phrase is problematic because, first, it is one not generally used to refer to sources of legal norms in international law. Secondly, it makes it difficult for courts to ascertain where customary international law falls within the scheme of sources of legal norms. There has been a general tendency to equate general rules of international law with customary international law in a manner that is strenuous and confusing. Because courts may not be best placed to devise an interpretation that affirms the content and nature of international law in the legal system, a constitutional amendment has become an imperative if the uncertainty is to be removed.

The most important provisions on international law in the constitution of Kenya include Article 21 (4) The Constitution of Kenya 2010 which provides that the State shall enact and implement legislation to fulfill its international obligations in respect of human rights and fundamental freedoms. Article 51 (3) (b) The Constitution of Kenya 2010 states that Parliament shall enact legislation that takes into account the relevant international human rights instruments.

As a result of those provisions of the constitution Kenya now boasts of a somewhat monistic system of recognition of international law. Thus article 2(5) of the Constitution which provides that the general rules of international law shall form part of the law of Kenya has the implication that a court can recognize the so-called general rules without having to look for justification outside the Constitution.

In Re The Matter of Zipporah Wambui Mathara [2010] eKLR para 9, the judge stated that The provisions of the Constitution of Kenya 2010 [were] also invoked, and this ruling would not be complete without a commentary on those submissions. Principally I agree with counsel for the Debtor that by virtue of the provisions of section 2(6) of the Constitution of Kenya 2010, International Treaties, and Conventions that Kenya has ratified, are imported as part of the sources of the Kenyan Law. Thus the provision of article 11 of the International Covenant on Civil and Political Rights which Kenya ratified on 1st May 1972 is part of the Kenyan law.

While this is so, what does one make of the article 21(4) of the Constitution provision that the State shall enact and implement legislation to fulfill its international obligations in respect of human rights and fundamental freedoms? This article can only mean that, if the State is required, under the relevant regime, to enact law or do something in order to implement international law that is already binding on it, then it should do so; otherwise it would be violating the Constitution. Any other interpretation would contradict both the text and intendment of article 2(6) of the Constitution. For example, to suggest that article 21(4) means that the State must pass implementing legislation for every respective treaty would be to contradict article 2(6).

Article 2(5) of the Constitution is superfluous due to ambiguity regarding the exact meaning of the phrase general rules of international law. Not even the normative framework under the African Union seems to contemplate general rules of international law. Kituo cha Sheria and Others v Attorney General, the court seemed to conflate different legal concepts into one.28 The issue before the court was whether a Government directive requiring the relocation of all refugees from urban centres to refugee camps in North Eastern Kenya, was unconstitutional. The court held that indeed it was, because it violated not only statutory and treaty law, but also because it was an abrogation of the principle of non-refoulment, which forms part of international customary law
Kenyan courts for a long time refused to apply principles of international law locally. Examples of such cases abound. In Pattni and Another v R, the court reiterated that international treaties were not applicable unless made part of the law

On the one hand, there is the view that international law supersedes conflicting local law (for ease of reference this may be referred to as the Koome view as it was espoused by Justice Koome in a case that first considered the effect of article 2(5) and (6) of the Constitution). On the other hand, it has been suggested that being part of the law of Kenya under the Constitution must mean that international law is not above any local statute (which was first espoused by Justice Majanja, and hence may be referred to as the Majanja view). The court merely agrees that treaties and conventions were part of Kenyan laws but did not engage in a thorough analysis of the relationship between international law and local law. So there is a gap in the true position of international law as opposed to municipal law.

All in all however Kenya is near perfect monist practicing state. It is practicing the purest form monism and all this it owes to the constitution of Kenya 2010. Since it has only been less than six years since the promulgation of the Kenyan constitution we may be too quick to judge as the constitution is still being tested.

NIGERIA

The Nigerian policy on international law is to respect international law as stated under Section 19(d) of The Constitution of The Federal Republic of Nigeria 1999 in the fundamental objectives and directive principles of state policy which states that The foreign policy objectives shall be respect for international law and treaty obligations as well as the seeking of settlement of international disputes by negotiation, mediation, conciliation, arbitration and adjudication; and
It is fair to say that Nigerian scholars of international law are divided on the issue. In discussing the transformation and incorporation doctrines of the relationship between international law and municipal law, one group of scholars hold that Nigeria should endorse the doctrine of incorporation. To them, the transformation theory is too ambitious for a developing country like Nigeria. In their opinion, it is imprudent for a nation to subordinate its own internal laws to an international legal system, thereby accepting for itself a secondary role.
The other school of thought on the matter, which this writer supports, warns of the dangers of this line of argument. We prefer the theory which recognizes the growing interdependence of State in their relationships with one another over the dogma of absolute State sovereignty. Both in theory and practice, international law does not ignore municipal law. In many instances, municipal law may be used as evidence of international custom or general principles of law. There are, in addition, certain questions that cannot be decided by international law, and which are invariably left for municipal law.
Quite unlike some states whose constitutions make clear what the relationship between international law and municipal law would be, the Nigerian constitutions have not clarified the matter. Although the 1963 and 1979 Nigerian Constitutions contain references regarding adherence of Nigeria to international law, the references are vague at best. The same continues in the 1999 constitution

The lack of constitutional clarity on this important matter makes it difficult for national courts to resolve cases before them in which issues of international law are involved. This is particularly true in the area of treaty relations, which form the bulk of Nigeria's relationship with other States and other subjects of international law.
International law is essentially comprised of treaties (reflecting express agreements of States) and custom (which incorporates rules of international conduct to which States have given their assent, even if tacitly). To determine which of the competing doctrines Nigeria supports on the relationship between international and municipal law, some examination of her constitutional provisions with regard to treaty practice may be a good starting point.
The most frequently used method of implementing international treaties in Nigeria is incorporation through an Act of Parliament en banco Such incorporating enactments clearly state that the treaty provisions "are in force" domestically. Nigeria may be classified as a country of "mitigated dualism" because of its adoption of this method of incorporation in the implementation of treaties. 141 Nigeria has incorporated human rights treaties to which she is a party into the domestic legal order. Certain human rights treaties, however, have been implemented by enacting domestic legislation in order to achieve normative harmony with the treaty in question

All fundamental rights entrenched in the constitution and treaties on human rights are applicable throughout Nigeria by virtue of the fact that they have been ratified or acceded to by Nigeria. This point is important to make because in some federations, jurisdiction over human rights is shared with lower levels of government within the Federation. Because Nigeria adopts a dualistic attitude toward treaties generally, she does not endorse application of the doctrine of self-executing treaties. Each treaty has clear objectives and aims at achieving set objectives. Different intentions govern each treaty. These intentions influence the method of implementation to be adopted.
It has not been possible to find an explanation or justification for the constitutional adoption of the system of incorporation through an Act of the National Assembly. The Nigerian system of incorporating Acts of the National Assembly en banc should enable the direct application of treaty provisions by domestic courts and other authorities. It is important, however, to develop the practice further to avoid any ambiguities. For example, it is still necessary that the incorporating Acts of the National Assembly should be clear enough and not general in form. In other words, it must spell out whether it is only certain provisions of particular international human rights treaties that are in force in Nigeria and ipso facto, applicable in the domestic courts, or the entire treaty so ratified. It is not enough to accept the treaties as simply "being in force" in Nigeria.
It is therefore safe to conclude that Nigeria is a dualist country because for the international law to be applicable it must be so declared in an Act of parliament.

CONCLUSION

In conclusion regardless of the approach that the country adopts international law remains superior to municipal law. Uganda Nigeria and to some extent Britain are dualist countries whereas Kenya is predominantly a monist country. However neither of all these countries is purely dualistic nor purely monistic.

REFERNCES

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