2.3.1 The implementation of international and regional
instruments in the national legal frameworks
In general, the application of international law in national
law is determined either by the monist or dualist theory.53 For the
monist system, international law is directly applicable in the national legal
system while in the dualist system international and national law are
considered to be distinct legal orders. In dualist countries,54 for
international law to become part and parcel of national law, incorporation is
necessary by a legislative act. In monist countries,55 there is no
need to incorporate the international treaty provisions into national law as
the treaty becomes part of domestic law upon ratification. Monists view
international and national law as part of a single legal order. Indeed, to
them, international law is superior to national law.56 It should be
noted that the application of international customary law in domestic systems
generally follows the logic of monism.57
Article 190 of the Constitution of Rwanda has adopted the monist
approach. The Constitution reads that:
Upon their publication in the official gazette, international
treaties and agreements which have been conclusively adopted in accordance with
the provisions of law shall be more binding than organic laws and ordinary laws
except in the case of noncompliance by one of parties.58
This provision shows that Rwanda has adopted the monist
approach although it has
reserved the right to opt out of international
agreements that centre on reciprocity. This is
notwithstanding the fact
that, as decided in Barcelona Traction case, reciprocity does not
53 See details in H J Steiner et al. (2000)
International human rights in context: Law, politics, morals 2nd
Edition Oxford University Press 987.
54 This method of legislative act to incorporate
international law into domestic legal framework is regularly applied in the
United Kingdom, Commonwealth countries, and most Scandinavian jurisdictions.
See details in F Bangamwabo The implementation of international and
regional human rights instruments in the Namibian legal framework (2004)
Windhoek 165-167.
55 It should be noted that this is the approach of a
number of countries viz. France, Holland, Switzerland, the USA, virtually all
Latin American countries, and some francophone African countries.
56 See M Myres The impact of international law upon
national law: A policy-oriented perspective? (1959) South Dakota Law
Review 4, 25:27-31.
57 For some classical contributions on the subject,
see among others H Triepel Droit international et droit interne (1920)
Oxford University Press. See also Seidl-Hohenveldern Transformation or adoption
of international law into municipal law (1963) 12 International &
Comparative Law Quarterly 88.
58 See Article 190 of the Constitution of the Republic
of Rwanda adopted on 4 July, 2003.
apply to human rights treaties which seek to protect citizens,
and where the obligations imposed by them are erga omnes,59
rather than those owed to particular states.60
As a point of departure, I will argue that the relationship
between international law and national law has important practical implications
in either monist or dualist systems. This nexus determines the extent to which
individuals can rely on international law for the vindication of their rights
within their national legal system and has implications for the effectiveness
of international law.
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