International Law and National Law

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Monism and dualism in international law
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The terms monism and dualism are used to describe two different theories of the relationship between international law and national law. Contents[hide] * 1 Monism * 2 Dualism * 3 Examples * 4 A matter of national legal tradition * 5 The problem of “lex posterior” * 6 References| [edit] Monism

Monists assume 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 monist states, a distinction between international law in the form of treaties, and other international law, e.g. jus cogens is made. International law does not need to be translated into national law. The act of ratifying the international law immediately incorporates the law into national law. 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] [edit] Dualism

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. If international law is not directly applicable, as is the case in dualist systems, then it must be translated into national law, and existing national law that contradicts...
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