The legal context for implementation of international law

Contents

Dualism Vs Monism

The Venice Commission suggests that the choice to incorporate a human rights treaty, and the technique to do so, is largely dependent on whether a State demonstrates a monist or dualist system in relation to international law (Hoffman & Thorburn Stern, 2020)

However, in practice, domestic legal systems cannot be easily classified as solely monist or dualist (Hoffman & Thorburn Stern, 2020). Common law countries largely follow a dualist approach with respect to treaty obligations, under which international law does not acquire domestic status upon ratification unless formal legislative action has been taken.

Thus, in most common law countries, even if an international instrument such as the CRC has been ratified, specific legislative or administrative measures are required to incorporate its provisions into domestic law.

However, in some common law countries, the CRC has been used by judges in making decisions and has influenced case law.

E.g.: In the United Kingdom, Smith v. Smith and Another [2006] UKHL 35 (House of Lords): “Even if an international treaty has not been incorporated into domestic law, our domestic legislation has to be construed so far as possible so as to comply with the international obligations which we have undertaken. When two interpretations of these regulations are possible, the interpretation chosen should be that which better complies with the commitment to the welfare of children which this country has made by ratifying the United Nations Convention on the Rights of the Child.” (para, 78). In the case of UK, this example shows its persuasive nature.

E.g.: In Botswana: Ndlovu v. Macheme, (MAHLB-000522-07) [2008] BWHC 293 (6 October 2008) “It is indisputable that the provisions of an international treaty such as the UN Convention on the Rights of the Child, of which Botswana is a party, do not form part of Botswana law, unless parliament elects to incorporate its provisions into our domestic law by legislation. But the fact that the Convention has not been incorporated into national law, as is the case with the UN Convention on the Rights of the Child, does not mean that its ratification holds no significance for Botswana law, for its provisions have strong persuasive value on the decisions of this Court.” (para 22)

Civil law countries largely follow a monist approach. This means that national and international law are viewed as a single legal system.

Once a monist country ratifies an international human rights instrument, the instrument becomes part of domestic law. Usually, it prevails over national legislation in the event of a conflict between the two.

In general, no separate implementing legislation is needed to enforce the ratified international instrument.

The constitutional provisions of most civil law countries legally entitle them to automatic incorporation of international treaties into domestic law upon ratification – enabling lawyers and judges to invoke them directly in cases brought before the courts.

In the Netherlands, the Constitution (art. 93 and 94) provides that international treaties ratified by the country (such as the CRC) form part of the domestic legal order and take precedence over Dutch legislation.