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Monism and Dualism in International Law
Monism and Dualism in International Law
The terms monism and dualism are used to describe two different theories of the relationship
between international law and national law. Many states, perhaps most, are partly monist and partly dualist in
their actual application of international law in their national systems.
Contents
[hide]
1 Monism
2 Dualism
3 Examples
6 See also
7 References
Monism[edit]
Monists accept that the internal and international legal systems form a unity. Both national legal rules and
international rules that a state has accepted, for example by way of a treaty, determine whether actions are
legal or illegal.[1] In most so-called "monist" states, a distinction between international law in the form of treaties,
and other international law, e.g., customary international law or jus cogens, is made; such states may thus be
partly monist and partly dualist.
In a pure monist state, international law does not need to be translated into national law it is just incorporated
and have effects automatically in national or domestic laws. The act of ratifying an international treaty
immediately incorporates the law into national law; and customary international law is treated as part of national
law as well. International law can be directly applied by a national judge, and can be directly invoked by
citizens, just as if it were national law. A judge can declare a national rule invalid if it contradicts international
rules because, in some states, the latter have priority. In other states, like in Germany, treaties have the same
effect as legislation, and by the principle of lex posterior, only take precedence over national legislation enacted
prior to their ratification. In its most pure form, monism dictates that national law that contradicts international
law is null and void, even if it predates international law, and even if it is the constitution. From a human
rights point of view, for example, this has some advantages. Suppose a country has accepted a human rights
treaty - the International Covenant on Civil and Political Rights for instance - but some of its national laws limit
the freedom of the press. A citizen of that country, who is being prosecuted by his state for violating this
national law, can invoke the human rights treaty in a national courtroom and can ask the judge to apply this
treaty and to decide that the national law is invalid. He or she does not have to wait for national law that
translates international law. His or her government can, after all, be negligent or even unwilling to translate. The
treaty was perhaps only accepted for political reasons, in order to please donor-countries for example.
"So when someone in Holland feels his human rights are being violated he can go to a Dutch judge and the
judge must apply the law of the Convention. He must apply international law even if it is not in conformity with
Dutch law".[2]
Dualism[edit]
Dualists emphasize the difference between national and international law, and require the translation of the
latter into the former. Without this translation, international law does not exist as law. International law has to be
national law as well, or it is no law at all. If a state accepts a treaty but does not adapt its national law in order
to conform to the treaty or does not create a national law explicitly incorporating the treaty, then it violates
international law. But one cannot claim that the treaty has become part of national law. Citizens cannot rely on it
and judges cannot apply it. National laws that contradict it remain in force. According to dualists, national
judges never apply international law, only international law that has been translated into national law.
"International law as such can confer no rights cognisable in the municipal courts. It is only insofar as the rules
of international law are recognized as included in the rules of municipal law that they are allowed in municipal
courts to give rise to rights and obligations". [3]
The supremacy of international law is a rule in dualist systems as it is in monist systems. Sir Hersch
Lauterpacht pointed out the Court's determination to discourage the evasion of international obligations, and its
repeated affirmation of:
the self-evident principle of international law that a State cannot invoke its municipal law as the reason for the
non-fulfillment of its international obligations. [4]
If international law is not directly applicable, as is the case in monist systems, then it must be translated into
national law, and existing national law that contradicts international law must be "translated away". It must be
modified or eliminated in order to conform to international law. Again, from a human rights point of view, if a
human rights treaty is accepted for purely political reasons, and states do not intend to fully translate it into
national law or to take a monist view on international law, then the implementation of the treaty is very
uncertain.[5]
Examples[edit]
In some countries, such as the UK for instance, the dualist view is predominant. International law is only part of
British national law once it is accepted in national law. A treaty
Both a monist state and a dualist state can comply with international law.
All one can say is that a monist state is less at risk of violating international
rules, because its judges can apply international law directly.[10] Negligence
or unwillingness to implement international law in national law can only
pose a problem in dualist states. States are free to choose the way in
which they want to respect international law, but they are always
accountable if they fail to adapt their national legal system in a way that
they can respect international law. Either they adopt a constitution that
implements a monist system so that international law can be applied
directly and without transformation, or they do not. But then they have to
translate all international law in national law. In a monist state we rely only
on the judges and not on the legislators, but judges can also make
mistakes. If a judge in a monist states makes mistakes when applying
international law, then the country violates international law just as much as
a dualist country that, for one reason or another, does not allow its judges
to apply international law directly and fails to translate or fails to translate
correctly and effectively.[11] One reason for preferring dualism is precisely
the fear that national judges are not familiar with international law - a highly
complex field of law - and hence are liable to make mistakes.
See also[edit]
Legal pluralism
Categories:
International law
Theories of law
Monism
Dualism
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