Discussion About Monism and Dualism in International Law

Topics: Law, United States, United Nations Charter Pages: 6 (1758 words) Published: April 6, 2013
Incorporation of international law

The incorporation of international law is the process by international agreements become part of the municipal law of a sovereign state. A country incorporates a treaty by passing domestic legislation that gives effect to the treaty in the national legal system.

Whether incorporation is necessary depends on a country's domestic law. Some states follow a monist system where treaties can become law without incorporation, if their provisions are considered sufficiently self-explanatory. In contrast dualist states require all treaties to be incorporated before they can have any domestic legal effects. Most countries follow a treaty ratification method somewhere between these two extremes. The Transformation of international law

Differently from the latter theory the transformation doctrine stipulates, that rules of international law do not became part of national law until they have been expressly adopted by the state. The difference between incorporation and transformation is that the former adopts international law into national law just because it is international law, whereas the latter requires a deliberate act on the part of the state concerned. It is clear, that whether any states adopts the incorporation or transformation doctrine is to be determined by its own national law, usually its 'constitution'.

Monism & Dualism
Monism is referred as oneness and dualism is referred to as two. These two words have many differences in philosophical, psychological as well as legal terms.

In philosophical terms, monism is that talks of the oneness of the soul and dualism is that talks of two entities’”individual and supreme soul. While monism accepts unity in diversity, dualism does not agree to it.

When monism talks of the oneness of existence, the term dualism has not endorsed this view. Monism believes in the unification of the self into supreme self. On the contrary, dualism does not believe that the individual fuse into the supreme self. (In psychology, monism says that the mind and the body are one. In dualist thought, the mind is separate from the body. They think that the mind is housed in the body itself.)

In legal terms, dualism and monism have many differences. In international law, monism believes that international and national legal systems can become a unity. However, in most of the monist states, there is a clear division between internal and international laws even if the international laws come in the shape of treaties. There is no need for translating the international law into a national law.

Dualism states that there is a difference between internal and international law. Unlike monism, there is a need for the translation of international law into national law. Unless the translation takes place, the international law is not accepted. Moreover, an international treaty is not accepted in dualist state if it is not adapted as a national 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. subject


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. 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...
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