LCP4807
OCT/NOV PORTFOLIO 2025
UNIQUE NO.
DUE DATE: 31 OCTOBER 2025
, International Human Rights Law
Question 1
1.1 Critically discuss the two approaches and the application of international law
in South Africa.
Introduction
The relationship between international law and municipal (domestic) law has long been
one of the most contested questions in jurisprudence. States differ in the way they
incorporate international law into their domestic legal systems. Two dominant theories
have emerged — monism and dualism — which explain the interaction between
international and municipal legal orders. South Africa, as a constitutional democracy
founded on respect for the rule of law and international human rights norms, provides
an interesting case study in the evolving application of international law domestically.
This essay critically analyses these two theoretical approaches and evaluates the
application of international law in South Africa, especially after the 1996
Constitution entrenched international law as a key interpretive and normative source.
The Two Theoretical Approaches
1. Monism
The monist theory holds that international and municipal law form a single, unified
legal system. Once a state consents to a treaty or becomes bound by customary
international law, such norms automatically become part of domestic law without further
legislative action (Shaw 2017:131). Under this view, international law can be directly
applied and invoked before national courts. Monists argue that international law protects
individuals and thus should not depend on domestic incorporation to be effective.
This theory is often linked to Hans Kelsen’s pure theory of law, which posits that
international law sits hierarchically above domestic law, providing the ultimate
“grundnorm” or foundational rule from which domestic norms derive their validity
(Kelsen 1945). Continental European systems such as the Netherlands and France
OCT/NOV PORTFOLIO 2025
UNIQUE NO.
DUE DATE: 31 OCTOBER 2025
, International Human Rights Law
Question 1
1.1 Critically discuss the two approaches and the application of international law
in South Africa.
Introduction
The relationship between international law and municipal (domestic) law has long been
one of the most contested questions in jurisprudence. States differ in the way they
incorporate international law into their domestic legal systems. Two dominant theories
have emerged — monism and dualism — which explain the interaction between
international and municipal legal orders. South Africa, as a constitutional democracy
founded on respect for the rule of law and international human rights norms, provides
an interesting case study in the evolving application of international law domestically.
This essay critically analyses these two theoretical approaches and evaluates the
application of international law in South Africa, especially after the 1996
Constitution entrenched international law as a key interpretive and normative source.
The Two Theoretical Approaches
1. Monism
The monist theory holds that international and municipal law form a single, unified
legal system. Once a state consents to a treaty or becomes bound by customary
international law, such norms automatically become part of domestic law without further
legislative action (Shaw 2017:131). Under this view, international law can be directly
applied and invoked before national courts. Monists argue that international law protects
individuals and thus should not depend on domestic incorporation to be effective.
This theory is often linked to Hans Kelsen’s pure theory of law, which posits that
international law sits hierarchically above domestic law, providing the ultimate
“grundnorm” or foundational rule from which domestic norms derive their validity
(Kelsen 1945). Continental European systems such as the Netherlands and France
