Tuesday, April 6, 2010

International v. Municipal Law

What is International Law

The history of international law has varied over the past four centuries. Origins can be traced back to medieval times, but did not take a prominent place in history until the early Seventeenth Century.

Early international law was based deeply in philosophy and history, focused on the idea that history was driven by nature, and the idea that, that which was right was also divine.

As history progressed through the inter-war period, the study of international law was historically based. However, the end of the Cold War led to a realization that a cosmopolitan idealism was all but perfect. According to Pierick and Werner (2010),

[f]rom ancient philosophy on, the cosmo-polis has been portrayed as a perfect order, guided by divine or natural reason, and contrasted to actual men-ruled polises that were failing ideals of justice and law. Cicero, for example, described true cosmopolitan law as …‘right reason in agreement with nature; it is of universal application, unchanging and everlasting; it summons to duty by its commands, and averts from wrongdoing by its prohibitions . . . We cannot be freed from its obligations by senate or people, and we need not look outside ourselves for an expounder or interpreter of it.’(p. 4)

With the collapse of the inter-war period, it became evident that international law, from the perspective of an ideal cosmopolitan approach based in historic reasoning, had failed and was outdated. This thinking was no longer applicable in a functional world where addressing complex problems such as human rights, trade law, and environmental issues were a critical part of international relations.

During the early 1990’s efforts were made to transition the post-Westphalian focus from “national security” to “human security”. Around the world, issues of human security were putting pressure on decision makers to reform international law.

Essentially, the plausibility of post-Westphalian perspectives involved the rise to high visibility of a multidimensional normative agenda: implementation of human rights, accountability for past crimes of state, abridgements of sovereignty, and the rise of humanitarian peacekeeping. (D’Amato & Abbassi, 2006, p. 4)

This agenda combined with social pressures encouraged multilateral approaches to

global security and the willingness of judicial bodies to recognize and apply international standards of law.

These changes, especially those of the judicial bodies, meant that states were now held to standards domestically and internationally. This caused “the rule of law [to be] extended to the foreign policy of governments…” (D’Amato, et al., 2006, p. 5). International institutions emerged as critical actors and therefore the state-centric, Westphalian, world order began to transform and the critical importance of the new international law began to emerge.

Today international law serves a broad range of interests. It is no longer seen as a simple set of rules whose purpose is solely to maintain peace. Recent cases have turned state supremacy upside-down and new actors, such as non-governmental organizations and corporations, have joined the international stage. According to D’Amato and Abbassi (2006), “[l]ocal acts are internationalized, and national boundaries seem more permeable…” (p. 9).

International Law and Municipal Law

How does municipal law become international law? How does international law affect municipal law? Do they affect each other at all? All of these are questions that have been debated by scholars; none of which have a clear answer.

Municipal law, by definition, can be summarized as the law that governs the relationship between individuals and a sovereign state. It can be specified to a certain degree by region: provincial, territorial, regional or local level. Regardless of the degree of specification, municipal law is created by a body of political superiority within the sovereign state, for the observance of the individual.

In contrast to municipal law, international law governs the relationship between and among States. States submit to the governance of international law only to the extent that they accept it as a common rule of actions amongst themselves. The creation of the law and the acceptance therein, is generally formed from the customs and traditions, international political structure, and the treaties that States form. In addition, international law is decentralized, not regularly enforced and does not necessarily have any consistent mode of adjudication.

While the basic purpose of international law, the governance of a system of relationships, is the same as municipal law, there is a difference of opinion as to whether international law and municipal law form a single conception of law. Those that believe that it does form a single conception of law are known as monists. Others, who believe that international law is distinctly separate from municipal law, are known as dualist.

Monism, usually based in natural law, “may arise either out of a unified ethical approach emphasizing universal human rights or out of a formalistic, hierarchical approach positing the existence of one fundamental norm underpinning both international law and municipal law” (http://www.britannica.com). Essentially, whether international or national, both are merely a particular manifestation of the single entity of law.

Monist also believe that, in the event of conflict, international law will prevail. There are several reasons for this thinking. First and foremost, natural law itself is hierarchal. Therefore, natural law would prevail first, followed by international law and then national law, in the event of a conflict.

Another reason was argued by monist-positivist, Hans Kelson. Kelson argued that the

…'state should behave as they customarily have behaved'. As a consequence International Law is representing a higher legal order and as such supreme, because it is derived from the practice of states and national law is derived from the states as established in international law.

Positivist thinking distinctly separates international law from municipal law. (http://mpv.juristic.cz)

And finally, Sir Hersch Lauterpacht, a member of the United Nations’ International

Law Commission and a Judge of the International Court of Justice, argued that, “the 'state' itself is seen as a collection of individuals rather than a legal entity in its own. In this view the international law prevails, because it is the guarantor of individual liberty” (http://mpv.juristic.cz).

Dualist, strictly deny the operation of international and national law within the same framework. They argue that international law regulates the relationships between states and that national law regulates the relationships of individuals. Because of their separate jurisdictions, and separate subject matter, some extreme dualist views have argued that it is not possible for national law and international law to conflict.

One such thinker was Sir Gerald Gray Fitzmaurice, judge of the International Court of Justice until 1973. He formulated what is now,

know[n] as the 'Fitzmaurice compromise'. He assumed that since the two systems, international and national law, do not operate in common field, they can never come into conflict. Each one of them is supreme in its own domain, thereby 'any apparent conflict in the domestic field is automatically settled by the domestic conflict rules of the forum and any conflict in the international field would be resolved by international law. (http://mpv.juristic.cz)

Both, Fitzmaurice and Lauterpacht, held seats on the International Court of Justice’s bench,

though at different times. Nonetheless, this example is a perfect representation of the continuing power struggle that surrounds municipal and international law.

Success Stories

While it is apparent that there is no clear winner in this debate, the current United

Nations appears to support a monist based approach. In the General Assembly’s 2009 Annual Report on Strengthening and Coordinating United Nations Rule of Law Activities (The Report), the Organization acknowledges the, “linkages between the rule of law at the national and international levels [as] substantial and multifaceted” (p. 6).

The current monist view is a departure from a statement contained on the United Nations’ Rule of Law website which states,

[t]he United Nations works to support a rule of law framework at the national level: a Constitution or its equivalent, as the highest law of the land; clear and consistent legal framework, and implementation thereof; strong institutions of justice, governance, security and human rights that are well structured, financed, trained and equipped; transitional justice processes and mechanisms; and a public and civil society that contributes to strengthening the rule of law and holding public officials and institutions accountable. (http://www.un.org)

This departure is likely the result of globalization which increasingly requires multilateral

cooperation and mutually agreed upon principals between Member States. In fact the United Nations requires that “States fulfill their international obligations, particularly with respect to the Charter, irrespective of their domestic law, and establish effective internal mechanisms, where necessary, in order to ensure compliance”(http://daccess-dds-ny.un.org).

The United Nations’ recent efforts to assist states in incorporating international norms and standards in domestic law have had many success stories. The most notable success is in the area of human rights. According to the United Nations (2009),

[s]ignificant legislation on children’s rights was adopted in Egypt, Nigeria, Uruguay, and — after a nearly 12-year consultative process — in South Africa, with United Nations support. New juvenile justice legislation was passed or legislative revisions were made in Albania, Angola, Montenegro, Mozambique and Thailand. (p. 7)

Furthermore, the United Nations is active in gaining support for constitution-building processes that include eliminating discrimination against women. To this end, the Organization had success in “Ecuador in 2008 and in the Plurinational State of Bolivia in 2009” (United Nations, 2009, p. 7); and is currently working on similar efforts in Nepal.

Other areas of concern, and often conflict, include trade and environmental issues. Often, a conflict between municipal and international standards and norms arises. The United Nations has further worked to integrate international standards and norms into domestic law in regards to these issues. In addition, they have attempted to provide a reasonable means by which conflict can be resolved and damages compensated. In 2009, “The Report,” noted the most recent successes in this area.

Action with respect to adoption of international trade law instruments was taken by Albania, Armenia, the Dominican Republic, Guatemala, Lebanon, Mauritius, Peru and Rwanda. Best practices resulted in two recent United Nations draft guidelines for the development of national legislation on access to information, public participation and access to justice in environmental matters, and on liability, response action and compensation for damage caused by activities dangerous to the environment. (United Nations, 2009, p. 7)


The United Nations approach to the “rule of law” both municipal and international has changed throughout history just as the “rule of law” itself has varied between a monist and dualist system. While a “best choice” is not apparent; it is clear that the “rule of law” plays a significant role in international relations, state sovereignty, and global peace. Both nationally and internationally, the “law” provides, and will continue to provide, a framework of expected norms and standards by which states and individuals are called to adhere to.


D’Amato, A. & Abbassi, J. (2006). International law today: A Handbook. St. Paul, MN: Thomson/West.

International law. (2010). In Encyclopædia Britannica. Retrieved April 04, 2010, from Encyclopedia Britannica Online: http://www.britannica.com/EBchecked/topic/291011/international-law

Juristic. (1999). Is the Dualist-Monist controversy in International law simply a fiction?. Retrieved April 4, 2010, from http://mpv.juristic.cz

Pierik, R. & Werner, W. (2010). Cosmopolitanism in context: Perspectives from international law & political theory. Cambridge University Press. Retrieved April 4, 2010 from http://www.rolandpierik.nl/theory/Downloads/GJ_IL.pdf

United Nations. (2009). Annual report on strengthening and coordinating United Nations rule of law activities: Report of the Secretary-General (United Nations Publication No. A/64/298). Retrieved April 4, 2010, from http://daccess-dds- ny.un.org/doc/UNDOC/GEN/N09/483/52/PDF/N0948352.pdf?OpenElement


  1. Hi - I just discovered your blog and was intrigued by your bio. I graduated with a BA in international studies from the University of South Carolina and am now getting my masters from Norwich in Diplomacy (Conflict Resolution). I came across your blog while doing research for a paper. I'm in my third seminar right now and I'd love any advice, words of wisdom you might have. Am also curious regarding your post-Norwich experience in finding a job, etc. Anyway, great blog and I look forward to connecting with a fellow Carolina girl!

  2. Just came across your blog by means of research for a paper. I'm a second year law student and this was really interesting and helpful. Thank you.