Finland’s dualist approach to international law and administration
Finland’s Dualist Approach to International Law and Administration
What is the Dualist Approach?
In international law theory, there are two main approaches to how international law interacts with domestic law:
Monism: International law is automatically part of the domestic legal system once a country consents to it. Treaties and customary international law can be applied directly by domestic courts without additional legislation.
Dualism: International law and domestic law are separate legal systems. International treaties do not automatically become part of domestic law upon ratification. Instead, for international law to have effect domestically, it must be incorporated into national legislation by the parliament.
Finland’s Position: Dualism
Finland follows a dualist system, meaning:
Ratified international treaties do not become domestic law automatically.
Parliament must enact legislation to give effect to international obligations domestically.
Courts apply domestic law, not international law directly, unless domestic legislation provides for it.
This respects the sovereignty of the Finnish Parliament in deciding how and when international law is implemented.
Implications in Administration
Administrative authorities and courts primarily apply Finnish legislation.
International treaties guide legislation but require explicit incorporation.
Where there is conflict, Finnish domestic law prevails unless legislation incorporates international rules.
International law may be used interpretatively but cannot override clear domestic laws.
Key Finnish Cases Illustrating Dualism in International Law and Administration
1. KHO 2008:73 (Supreme Administrative Court, 2008)
Facts:
A dispute arose regarding the application of a human rights provision from an international treaty (European Convention on Human Rights) by Finnish administrative authorities.
Issue:
Can the administrative authority directly apply the treaty provision despite lack of implementing national legislation?
Judgment:
The Supreme Administrative Court held that although Finland is a party to the treaty, the provision cannot be directly applied by administrative authorities in the absence of national legislation implementing it. The court emphasized the dualist approach, stating that ratification alone does not automatically create domestic rights.
Importance:
Reinforces that administrative bodies must apply Finnish law, and international treaties require legislative incorporation to have direct effect.
2. KHO 1981:139 (Supreme Administrative Court, 1981)
Facts:
An issue concerning the application of international trade law in customs regulations.
Issue:
Whether Finnish customs authorities must apply international treaty provisions directly.
Judgment:
The court ruled that customs authorities apply Finnish customs law, which may incorporate international treaty principles, but cannot apply treaties directly without legislative backing.
Importance:
Clarifies the administrative application of international trade law in the Finnish dualist system.
3. Supreme Court of Finland, KKO 2004:21
Facts:
A criminal case where the accused argued that a treaty Finland had ratified guaranteed certain procedural rights.
Issue:
Whether the Supreme Court must apply international treaty provisions directly in the absence of implementing legislation.
Judgment:
The Supreme Court found that unless the treaty had been implemented in Finnish law, its provisions could not override domestic criminal procedure law. The court acknowledged international law principles but maintained adherence to domestic legislation.
Importance:
Highlights that the judiciary respects the dualist principle, applying international law only when incorporated.
4. KKO 1992:37
Facts:
A tax law case where the taxpayer invoked an international tax treaty to avoid double taxation.
Issue:
Whether the court should apply the treaty provisions directly or rely on Finnish domestic law.
Judgment:
The Supreme Court ruled that unless Finnish law expressly incorporates the treaty, courts are bound by domestic tax law. The treaty’s provisions were considered interpretative tools but not enforceable rights on their own.
Importance:
Demonstrates the application of dualism in fiscal and administrative law.
5. Supreme Administrative Court, KHO 1995:54
Facts:
Question of asylum law where the applicant invoked UN Refugee Convention provisions.
Issue:
Can Finnish authorities apply the Convention directly to grant asylum?
Judgment:
The Court noted the Convention’s principles guide legislation but cannot be applied independently by authorities without corresponding Finnish asylum law provisions.
Importance:
Shows dualism’s role in international human rights and refugee law within Finnish administration.
Summary Table
| Case & Year | Key Issue | Dualism Principle Affirmed |
|---|---|---|
| KHO 2008:73 | Application of human rights treaties | Treaties require legislative implementation for direct effect. |
| KHO 1981:139 | Application of international trade law | Customs apply domestic law; treaties need incorporation. |
| KKO 2004:21 | Treaty rights in criminal law | International treaties cannot override domestic law unless incorporated. |
| KKO 1992:37 | International tax treaty | Domestic tax law governs unless treaty incorporated. |
| KHO 1995:54 | Refugee Convention application | Treaties guide but do not bind administration without law. |
Conclusion
Finland’s dualist approach firmly separates international law and domestic law, requiring parliamentary incorporation before international treaties affect administration or judicial decisions. Finnish courts and administrative bodies apply domestic law as primary and use international law mainly as interpretative guidance unless explicitly adopted into national law.
This preserves parliamentary sovereignty and legal certainty but may delay the immediate application of international obligations domestically.
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