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, QUESTION 1
1.1 To what extent can international human rights law be invoked as part of domestic
legal systems and what is the role of the principle of state sovereignty in this
regard?
Sovereignty and erosion of sovereignty
Under PIL, states are independent and sovereign in the sense that they are entitled
to regulate their internal affairs without any foreign interference. IHRL has, however,
eroded the absolute nature of sovereignty since it is treaty-based law. Therefore, by
entering or ratifying multilateral treaties, states allow their sovereignty to be
encroached on or limited. One of the effects of a treaty between parties is pacta sunt
servanda, which means that treaties are to be complied with in good faith. Under
many human rights treaties, states accept the competence of independent
international bodies to supervise their compliance with the treaties. States
sometimes allow nationals to bring complaints against them before the implementing
mechanisms of treaties, such as national bodies of independent experts created
under treaties
Two approaches to the relationship between international law and national law are
usually juxtaposed. These approaches are dualism and monism. Dualism is a
doctrine according to which international law and domestic law are fundamentally
different. PIL cannot apply directly in domestic law. For it to apply, it has to be
“transformed” or incorporated into domestic law by legislation. Transformation
requires amendments to existing laws or the adoption of new domestic legislation in
line with a treaty. Incorporation entails the wholesale inclusion of a treaty into
national laws. Many countries that were colonised by Britain adopted dualism. This is
the case in South Africa.
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