1
,2
QUESTION 1
The Relationship Between International and Municipal Law
The interaction between international law and municipal law has long been a central
question in jurisprudence, reflecting the tension between the sovereignty of states and
the universality of international norms. International law governs the conduct of states
and other international actors, while municipal law regulates individuals and
institutions within a state’s domestic jurisdiction. The main issue lies in determining
how and when international law becomes part of a state’s domestic legal order. In
South Africa, this question has acquired particular importance given the country’s
transformation from apartheid isolation to constitutional democracy, a shift that
elevated international law’s role in promoting human rights, justice, and accountability.
The South African legal system reflects a nuanced balance between international
obligations and domestic supremacy, rooted in both constitutional provisions and
judicial interpretation.1
The Dualist and Monist Approaches
In jurisprudential theory, two main approaches — dualist and monist — explain the
relationship between international and municipal law. The dualist theory maintains that
international and municipal legal systems are separate and distinct. Under dualism,
international law cannot automatically have effect within a state unless it is expressly
incorporated through domestic legislation.2 States adhering to dualism regard
international law as binding only on the international plane and not automatically
enforceable in domestic courts. This theory emphasizes national sovereignty and
democratic accountability, as it ensures that only laws approved by a state’s legislature
can affect its citizens.
By contrast, the monist theory asserts that international law and municipal law form
part of a single, unified legal order. Under monism, international law is automatically
1
Dugard, J. (2011). International Law: A South African Perspective. 4th ed. Cape Town: Juta.
2
Shaw, M. (2017). International Law. 8th ed. Cambridge: Cambridge University Press.
, 3
applicable and directly enforceable within a state without requiring legislative
transformation.3 In monist systems, international norms are viewed as superior or at
least coequal with domestic laws, particularly when they concern fundamental human
rights. The rationale is that the international community’s shared values transcend
national boundaries, and thus states have a moral and legal duty to uphold
international obligations domestically.
Application of International Law in South Africa: The Constitutional Framework
South Africa’s constitutional framework reflects a hybrid approach that blends
elements of both monism and dualism. The Constitution of the Republic of South
Africa, 1996, explicitly recognizes the role of international law in domestic
interpretation and law-making. Section 39(1)(b) provides that courts must consider
international law when interpreting the Bill of Rights, while section 233 requires courts
to prefer any reasonable interpretation of legislation that is consistent with international
law.4 Moreover, section 231 governs the status of international agreements in South
Africa, distinguishing between self-executing and non-self-executing treaties.
According to section 231(2), an international agreement binds the Republic only after
it has been approved by Parliament. However, section 231(4) clarifies that such an
agreement becomes law in the Republic only when enacted into legislation. 5 This
means that South Africa follows a dualist approach regarding treaties that require
domestic incorporation. Nonetheless, section 231(3) provides that international
agreements of a technical, administrative, or executive nature may be binding without
parliamentary approval, indicating a limited monist tendency.
Customary International Law and the Monist Tendency
3
Brownlie, I. (2008). Principles of Public International Law. 7th ed. Oxford: Oxford University Press.
4
Constitution of the Republic of South Africa, 1996, ss 39(1)(b) and 233.
5
Constitution of the Republic of South Africa, 1996, s 231(2)-(4).
,2
QUESTION 1
The Relationship Between International and Municipal Law
The interaction between international law and municipal law has long been a central
question in jurisprudence, reflecting the tension between the sovereignty of states and
the universality of international norms. International law governs the conduct of states
and other international actors, while municipal law regulates individuals and
institutions within a state’s domestic jurisdiction. The main issue lies in determining
how and when international law becomes part of a state’s domestic legal order. In
South Africa, this question has acquired particular importance given the country’s
transformation from apartheid isolation to constitutional democracy, a shift that
elevated international law’s role in promoting human rights, justice, and accountability.
The South African legal system reflects a nuanced balance between international
obligations and domestic supremacy, rooted in both constitutional provisions and
judicial interpretation.1
The Dualist and Monist Approaches
In jurisprudential theory, two main approaches — dualist and monist — explain the
relationship between international and municipal law. The dualist theory maintains that
international and municipal legal systems are separate and distinct. Under dualism,
international law cannot automatically have effect within a state unless it is expressly
incorporated through domestic legislation.2 States adhering to dualism regard
international law as binding only on the international plane and not automatically
enforceable in domestic courts. This theory emphasizes national sovereignty and
democratic accountability, as it ensures that only laws approved by a state’s legislature
can affect its citizens.
By contrast, the monist theory asserts that international law and municipal law form
part of a single, unified legal order. Under monism, international law is automatically
1
Dugard, J. (2011). International Law: A South African Perspective. 4th ed. Cape Town: Juta.
2
Shaw, M. (2017). International Law. 8th ed. Cambridge: Cambridge University Press.
, 3
applicable and directly enforceable within a state without requiring legislative
transformation.3 In monist systems, international norms are viewed as superior or at
least coequal with domestic laws, particularly when they concern fundamental human
rights. The rationale is that the international community’s shared values transcend
national boundaries, and thus states have a moral and legal duty to uphold
international obligations domestically.
Application of International Law in South Africa: The Constitutional Framework
South Africa’s constitutional framework reflects a hybrid approach that blends
elements of both monism and dualism. The Constitution of the Republic of South
Africa, 1996, explicitly recognizes the role of international law in domestic
interpretation and law-making. Section 39(1)(b) provides that courts must consider
international law when interpreting the Bill of Rights, while section 233 requires courts
to prefer any reasonable interpretation of legislation that is consistent with international
law.4 Moreover, section 231 governs the status of international agreements in South
Africa, distinguishing between self-executing and non-self-executing treaties.
According to section 231(2), an international agreement binds the Republic only after
it has been approved by Parliament. However, section 231(4) clarifies that such an
agreement becomes law in the Republic only when enacted into legislation. 5 This
means that South Africa follows a dualist approach regarding treaties that require
domestic incorporation. Nonetheless, section 231(3) provides that international
agreements of a technical, administrative, or executive nature may be binding without
parliamentary approval, indicating a limited monist tendency.
Customary International Law and the Monist Tendency
3
Brownlie, I. (2008). Principles of Public International Law. 7th ed. Oxford: Oxford University Press.
4
Constitution of the Republic of South Africa, 1996, ss 39(1)(b) and 233.
5
Constitution of the Republic of South Africa, 1996, s 231(2)-(4).
