not operate in common field, they can never come into conflict. 33 Both systems are supreme in
their own way, the latter attributes rights and duties to individuals at the domestic sphere and the
former regulates relations between states. Dualism upholds the classic view that even if an
international treaty is ratified by the executive, this treaty forms no part of domestic law unless
they are incorporated by the legislature34. In other words, ratification of a treaty cannot ipso
facto add to or amend the constitution and laws of a state because that function is reserved to the
legislative arm of the domestic parliament.35 Article 26 of the Vienna Convention on The Law of
Treaties demands that obligations be performed “in good faith” or pacta sunt servanda once
ratified. However contrary to this dualist countries argued that the court should not be subjected
to these treaties and they should be allowed to uphold the supremacy of their constitution.
Impact of Paradigm Shift of International Law on the Dualist Doctrine
The rigidness of the dualist doctrine over the past decades has been under severe scrutiny.
International law has shifted from state to state relations to an approach encapsulating the well being of individuals36. The ratification of The Universal Declaration Human Rights and other
similar international instruments now meant that in theory, governments are expected to put into
place domestic measures and legislation that are compatible with their international obligations.
Where domestic proceedings fail to address human rights abuses, or to implement mechanisms
for individuals and groups that are subject to these injustices, an alternative route through these
tribunals is now available.
As a result, individuals can now petition directly to these
International Council of Human Rights in cases where their fundamental rights are being
infringed on within their domestic jurisdiction.37
The legal issue however, does not arise with the establishment of these treaties but rather the
executing of them. Because some countries subscribe to dualist doctrine, The Declaration of
Human Rights, like any other international instrument, cannot infuse its way into the legal
33
John Merrills and Sir Gerald Fitzmaurice (eds), Judge Sir Gerald Fitzmaurice and the Discipline of International
Law: Opinions on the International Court of Justice, 1961‐1973 (Martinus Nijhoff Publishers 1998) 30
34
Mark Elliott, Public International Law (Robert Thomas Oxford University Press 2011) 71
35
Fenwick, Helen, Text, cases, and materials on public law and human rights (Helen Fenwick and Gavin Phillipson
Routledge, 2011) 62
36
Gideon Boas, Public International Law: Contemporary Principles and Perspectives (Edward Elgar Pub. 2002)179
37
Colin Wanbrick , ‘Brownlie’s Principle of Public International Law’ (2000) 1(1) EJLT accessed March 27,2013
27