The interaction between international law and municipal law is a struggle between state sovereignty and international legal orders when international law is used in the national legal system. International law is no different from national law in terms of regulation, legal principle, custom, or legal decision, but international law governs the relations of states, international organizations, individuals, and entities known as international actors who possess legal personality. Avoiding the supremacy of international law, some states consider the adoption procedure from their national states without constitutional conflict. However, some states recognize international law as their national law without any procedure. The theory of monism and dualism are the main theories when discussing the implementation of international law in one’s nation. Monism is an approach that one state accepts international law automatically as part of its national law without an express act of the legislature. On the contrary, if the state is dualistic, international law can become the national law once adopted expressly by the legislative act.[1] It depends on the domestic execution.
Whether Cambodia adopts monism or dualism, it is in a grey area because some articles of the Constitution show the adoption in either of both ways.
International law is the source of Cambodian law, but the Constitution is the supreme hierarchy of law executed in Cambodia. Unlike the Dutch Constitution, international law can prevail over the Constitution when a two-thirds majority in parliament approves the treaty.[2] Under Article 26 of the Constitution, all international treaties and conventions can become Cambodian law after the approval of the National Assembly and the senate with signature and ratification from the King. Corresponding to Article 90 (new), it establishes that the National Assembly adopts the approval or repeal of international covenants or conventions. Based on this context, the writer can contend that Cambodia applies the dualistic approach since those treaties and conventions shall be signed and ratified by the King with the parliament’s legislative process.
However, Article 31 of the Constitution does not indicate approval from the parliament of Cambodia as stipulated as follows:
Article 31: The Kingdom of Cambodia shall recognize and respect human rights as stipulated in the United Nations Charter, the Universal Declaration of Human Rights, and the covenants and conventions related to human rights, women’s and children’s rights. […]
From the aforementioned Article, it can be known that there is an absence of transformation process for International Human Rights law to be a legally binding commitment. It seems that Cambodia automatically adopts the relevant international human rights law since we understand the words used above were “recognize and respect”. It is ambiguous since the word “recognize” does not point out clearly whether it means to recognize after the legislative process or recognize automatically into the national law. There is no interpretation about it, so it leads to an intensive discussion among the professors and legal practitioners.
The term “Laws” [in Cambodian context] means the national laws, including the Constitution which is the supreme law, all the laws that remain in force, and the international laws already recognized by the Kingdom of Cambodia, in particular the Convention on the Children’s Rights.[3]
Although it is only the Cambodian constitutional council that has the sole authority to address constitutional interpretation, however there has been no interpretation or discussion to address the aforementioned matter.[4] The Constitutional Council did not clarify that ratified human rights treaties are domestic law, but decision Nº 092/003/2007 CC.D shows that the Convention on the children’s rights is directly applicable to national law. Such fact thereby in contrast implies that Cambodia is a monist state instead of the dualistic state.
Another research from a well-known professor and lawyer, Meas Bora, has pointed out that the content of the treaties is essential. Considering that the treaty’s content is about the international legal obligation or it is concerned to the state at the international level, the legislature process shall be applied.[5] However, if the treaties have no legal binding or if such treaties are a mere cooperative agreement, it does not need to be decided by the parliament.
In conclusion, there is a blurred line between monism and dualism. As long as international law is recognized in either of both concepts, they can be the source of Cambodian Law. Both concepts are possible in Cambodia since there is no clear-cut approach stipulated in Cambodian Constitution. Compared to Indonesia, Cambodia has not yet had a specific law related to the adoption or repeal of the treaties or international law.
[1] Rebecca M.M. Wallace. International Law, London. Sweet & Maxwell. p.36.
[2] The Dutch Constitution, Art. 91, para. 3.
[3] The Constitutional Council, Case Decision Nº 092/003/2007 CC.D of July 10, 2007.
[4] Daniel HEILMANN, fundamental rights protection: A comparative and international Law perspective, p.353.
[5] Meas Bora. Et al, Are all treaties be adopted by parliament? (2019), p.27. https://bit.ly/3l0RCRP
Royal University of Law and Economics
Email : [email protected]
