Dualist and Monist Theories

International Law in Domestic Courts: The “Dualist” and “Monist” Theories

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By the principles that govern international law, states are committed to respect and fulfill their treaty and other international law obligations (recall “pacta sunt servanda”)  And a state cannot cite its own domestic laws as an excuse/ justification for it violating one of its international law obligations But international law doesn’t dictate exactly how a state should incorporate its international law obligations into its domestic legal structure, internal legal system—this matter is left for each state to decide, taking into consideration their views on the relationship between international and domestic law 2 doctrines/approaches have developed, either written into states’ constitutions or just followed in practice: Dualism and Monism

The “dualist” concept (or “pluralist” view) on the relationship b/w intl law + domestic law -

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Proponents of “dualism” think that international law and domestic law don’t operate on the same plane/ sphere, so there can’t really be any conflict between the two, since they don’t have the same object—internal provisions are applied exclusively between the state’s borders and can’t intervene in the international legal system An international treaty would only be effective at an international level—in order for it to be applied domestically in a contracting state, that state would first have to adopt the provisions of the treaty into a national provision (i.e. some type of domestic legislation)  So-called “nationalization” of the treaty: the international provisions of the treaty pass through a transformation, which allows them to be applied as an internal regulation, part of the domestic law and not international law The subjects of law aren’t the same in both legal systems, each system’s application is well determined (one corresponds to the relationship between states, while the other to interpersonal relationships within a state). International law can’t dictate the relationships between individuals at an internal level Dualist theory stresses that domestic and international law are two separate legal systems  The 2 systems are different through their source of law—internal law originates in the will of the state itself, while international law is based on the common will of contracting states  The basis for the mandatory force of internal law provisions is ultimately the constitution; for international law it is probably ultimately the principle of pacta sunt servanda (at least as far as treaty law goes)  International law provisions can’t influence internal law’s validity and vice versa  Communication between the 2 systems is possible, but only via a specific procedure— international law provision is introduced into internal law by an internal provision that recognizes/ adopts/ incorporates the international law provision 2 additional things to keep in mind about dualist theory:

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Historically it’s a pretty significant doctrine—developed in a time where international law almost exclusively inter-state. But remember over the last few decades international law gradually addressing itself more and more to individuals and other non-state actors From a practical point of view, internal and international law do intersect—for the most part it’s up to the executives and courts of the states to interpret and apply international law while acting (eg Osama Bin Laden article from first class)

The “monist” concept of international and domestic law -

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Sees international law and domestic law as part of the same system, not operating in different spheres Stresses the “unity” of legal order According to the monist theory, international law provisions apply directly on a state’s internal legal order—international law applies immediately, without having to be admitted or transformed within the internal legal system of the member states Monist approach says that international law and domestic law operate in the same sphere, with a super-ordinate and sub-ordinate relationship (doesn’t actually say which one will trump in case of conflict—can be international law that takes precedence, or can be domestic law that takes precedence) Main thing is that international provisions are immediately applicable and enforceable in domestic legal systems, without necessity to “nationalize” the international provisions Monists maintain a unitary view of the law as a whole and are opposed to strict division between international and domestic law

Where do most states fall? -

Think of a spectrum/ line, with pure dualism and pure monism as the 2 ends Most states fall somewhere on this spectrum, not necessarily following strict dualist approach or strict monist approach. And states can change approach depending on circumstances Seen most clearly in cases in domestic courts of a state that might involve international law issues —will the court be open to referring to international law to help decide the case? How does the court view international law? Does the state think its domestic laws are more advanced, better equipped than international law on the topic?