Monism and dualism in international law

From Wikipedia, the free encyclopedia

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 ualism
! "#amples
$ % matter of national le&al tradition
' The problem of (le# posterior)
* +ee also
, -eferences
Monism[edit]
Monists accept that the internal and international le&al systems form a unity. .oth national le&al rules and
international rules that a state has accepted, for e#ample by way of a treaty, determine whether actions are
le&al or ille&al.
[1]
/n most so0called 1monist1 states, a distinction between international law in the form of treaties,
and other international law, e.&., customary international law or 2us co&ens, is made3 such states may thus be
partly monist and partly dualist.
/n a pure monist state, international law does not need to be translated into national law it is 2ust incorporated
and ha4e effects automatically in national or domestic laws. The act of ratifyin& an international treaty
immediately incorporates the law into national law3 and customary international law is treated as part of national
law as well. /nternational law can be directly applied by a national 2ud&e, and can be directly in4oked by
citi5ens, 2ust as if it were national law. % 2ud&e can declare a national rule in4alid if it contradicts international
rules because, in some states, the latter ha4e priority. /n other states, like in 6ermany, treaties ha4e the same
effect as le&islation, and by the principle of le# posterior, only take precedence o4er national le&islation enacted
prior to their ratification. /n its most pure form, monism dictates that national law that contradicts international
law is null and 4oid, e4en if it predates international law, and e4en if it is the constitution. From a human
ri&hts point of 4iew, for e#ample, this has some ad4anta&es. +uppose a country has accepted a human ri&hts
treaty 0 the /nternational 7o4enant on 7i4il and 8olitical -i&hts for instance 0 but some of its national laws limit
the freedom of the press. % citi5en of that country, who is bein& prosecuted by his state for 4iolatin& this
national law, can in4oke the human ri&hts treaty in a national courtroom and can ask the 2ud&e to apply this
treaty and to decide that the national law is in4alid. 9e or she does not ha4e to wait for national law that
translates international law. 9is or her &o4ernment can, after all, be ne&li&ent or e4en unwillin& to translate. The
treaty was perhaps only accepted for political reasons, in order to please donor0countries for e#ample.
1+o when someone in 9olland feels his human ri&hts are bein& 4iolated he can &o to a utch 2ud&e and the
2ud&e must apply the law of the 7on4ention. 9e must apply international law e4en if it is not in conformity with
utch law1.
[2]
ualism[edit]
ualists emphasi5e the difference between national and international law, and re:uire the translation of the
latter into the former. Without this translation, international law does not e#ist as law. /nternational law has to be
national law as well, or it is no law at all. /f 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 e#plicitly incorporatin& the treaty, then it 4iolates
international law. .ut one cannot claim that the treaty has become part of national law. 7iti5ens cannot rely on it
and 2ud&es cannot apply it. ;ational laws that contradict it remain in force. %ccordin& to dualists, national
2ud&es ne4er apply international law, only international law that has been translated into national law.
1/nternational law as such can confer no ri&hts co&nisable in the municipal courts. /t is only insofar as the rules
of international law are reco&ni5ed as included in the rules of municipal law that they are allowed in municipal
courts to &i4e rise to ri&hts and obli&ations1.
[!]
The supremacy of international law is a rule in dualist systems as it is in monist systems. +ir 9ersch
<auterpacht pointed out the 7ourt=s determination to discoura&e the e4asion of international obli&ations, and its
repeated affirmation of>
the self0e4ident principle of international law that a +tate cannot in4oke its municipal law as the reason for the
non0fulfillment of its international obli&ations.
[$]
/f international law is not directly applicable, as is the case in monist systems, then it must be translated into
national law, and e#istin& national law that contradicts international law must be 1translated away1. /t must be
modified or eliminated in order to conform to international law. %&ain, from a human ri&hts point of 4iew, if a
human ri&hts treaty is accepted for purely political reasons, and states do not intend to fully translate it into
national law or to take a monist 4iew on international law, then the implementation of the treaty is 4ery
uncertain.
[']
"#amples[edit]
/n some countries, such as the ?@ for instance, the dualist 4iew is predominant. /nternational law is only part of
.ritish national law once it is accepted in national law. % treaty
1has no effect in municipal law until an %ct of 8arliament is passed to
&i4e effect to it. /n other countries this distinction tends to be blurred. /n
the 4ast ma2ority of democratic countries outside the 7ommonwealth,
the le&islature, or part of the le&islature, participates in the process
of ratification, so that ratification becomes a le&islati4e act, and the
treaty becomes effecti4e in international law and in municipal law
simultaneously. For instance, the 7onstitution of the ?nited
+tates pro4ides that the 8resident =shall ha4e power, by and with the
ad4ice and consent of the +enate, to make treaties, pro4ided two0thirds
of the +enators present concur=. Treaties ratified in accordance with the
7onstitution automatically become part of the municipal law of the
?+%1.
[*]
The ?nited +tates of %merica has a 1mi#ed1 monist0dualist system3
international law applies directly in ?+ courts in some instances but not
others. ?+ 7onstitution, art. A/, does indeed say that treaties are part of
the +upreme <aw of the <and, as su&&ested by the :uote abo4e3 howe4er,
its +upreme 7ourt, as late as the recent case of MedellBn 4. Te#as,
[,]
has
restated that some treaties are not 1self0e#ecutin&.1 +uch treaties must be
implemented by statute before their pro4isions may be &i4en effect by
national and sub0national courts. +imilarly with re&ard to customary
international law, its +upreme 7ourt stated, in the case of the 8ac:uete
9abana C1DEEF, that 1international law is part of our law.1 9owe4er, it also
said that international law would not be applied if there is a controllin&
le&islati4e, e#ecuti4e, or 2udicial act to the contrary...
[G]
% matter of national le&al tradition[edit]
/nternational law does not determine which point of 4iew is to be preferred,
monism or dualism. "4ery state decides for itself, accordin& to its le&al
traditions. /nternational law only re:uires that its rules are respected, and
states are free to decide on the manner in which they want to respect these
rules and make them bindin& on its citi5ens and a&encies.
([T]he transformation of international norms into domestic law is
not necessary from the point of 4iew of international lawHthe
necessity of transformation is a :uestion of national, not of
international law).
[D]
.oth a monist state and a dualist state can comply with international law.
%ll one can say is that a monist state is less at risk of 4iolatin& international
rules, because its 2ud&es can apply international law directly.
[1E]
;e&li&ence
or unwillin&ness to implement international law in national law can only
pose a problem in dualist states. +tates 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 le&al system in a way that
they can respect international law. "ither they adopt a constitution that
implements a monist system so that international law can be applied
directly and without transformation, or they do not. .ut then they ha4e to
translate all international law in national law. /n a monist state we rely only
on the 2ud&es and not on the le&islators, but 2ud&es can also make
mistakes. /f a 2ud&e in a monist states makes mistakes when applyin&
international law, then the country 4iolates international law 2ust as much as
a dualist country that, for one reason or another, does not allow its 2ud&es
to apply international law directly and fails to translate or fails to translate
correctly and effecti4ely.
[11]
Ine reason for preferrin& dualism is precisely
the fear that national 2ud&es are not familiar with international law 0 a hi&hly
comple# field of law 0 and hence are liable to make mistakes.
The problem of (le# posterior)[edit]
/n dualist systems, international law must be translated into national law,
and e#istin& national law that contradicts international law must be
1translated away1. /t must be modified or eliminated in order to conform to
international law. 9owe4er, the need for translation in dualist system
causes a problem with re&ard to national laws 4oted after the act of
translation. /n a monist system, a national law that is 4oted after an
international law has been accepted and that contradicts the international
law, becomes automatically null and 4oid at the moment it is 4oted. The
international rule continues to pre4ail. /n a dualist system, howe4er, the
ori&inal international law has been translated into national law 0 if all went
well 0 but this national law can then be o4erridden by another national law
on the principle of 1le# posterior dero&at le&i priori1, the later law replaces
the earlier one. This means that the country 0 willin&ly or unwillin&ly 0
4iolates international law.
[12]
% dualist system re:uires continuous screenin&
of all subse:uent national law for possible incompatibility with earlier
international law.
+ee also[edit]
/nternational customary law
<e&al pluralism
<ist of national le&al systems
-eferences[edit]
Constructs such as ibid., loc. cit. and idem are discouraged by Wikipedia's style guide for
footnotes, as they are easily broken. Pleaseimprove this article by replacing them with named
references (quick guide), or an abbreviated title. (February 2013)
1. Jump up ^ 8ieter @ooi2mans, /nternationaal publiekrecht in
4o&el4lucht, Wolters0;oordhoff, 6ronin&en, 1DD$, p. G2.
2. Jump up ^ 6.J. Wiarda, in %ntonio 7assese, /nternational <aw in a
i4ided World, 7larendon 8ress,I#ford, 1DD2, p. 1,.
!. Jump up ^ James %tkin, .aron %tkin, in M. %kehurst, Modern
/ntroduction to /nternational <aw, 9arper 7ollins, <ondon, p. $'.
$. Jump up ^ +ee The e4elopment of /nternational <aw by the
/nternational 7ourt, 9ersch <auterpacht CedF, 7ambrid&e ?ni4ersity
8ress, 1DG2, /+.; E0'210$*!!20,, pa&e 2*2
'. Jump up ^ %. 7assese, op. cit., p. 1'.
*. Jump up ^ M. %kehurst, op. cit., p. $'.
,. Jump up ^ ''2 ?.+. $D1 C2EEGF.
G. Jump up ^ 1.asic 7oncepts of 8ublic /nternational <aw 0 Monism K
ualism1, ed.Marko ;o4ako4ic, .el&rade 2E1!.
D. Jump up ^ %. 7assese, op. cit., p. 21022.
1E. Jump up ^ 8. @ooi2mans, op. cit., p. G!.
11. Jump up ^ ibidem, p. G!.
12. Jump up ^ ibidem, p. G$.
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