Relationship Between Monism and Dualism

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THE DUALIST AND MONIST THEORIES. INTERNATIONAL
LAW’S COMPREHENSION OF THESE THEORIES
Author: Brînduşa MARIAN
Abstract: By the principles that govern international law, states are committed towards respecting the treaties that they establish and also to determine their application by their own legal, executive and judicial institutions. Yet International Law doesn’t rule on how the conditions in which legal provisions included in treaties are to be integrated in the states’ internal legal system, so as they might be applied by the competent authorities. This matter of concern is left for the states to decide upon, ruling over it as sovereignties, and concordant with their views on the relation between international and internal Law.

Keywords: Dualist Theory, Monist Theory, International Law, State’s Internal Legal System.
JEL Classification: K33
By the principles that govern international law1, states are committed towards respecting the treaties that they establish and also to determine their application by their own legal, executive and judicial institutions. Yet International Law doesn’t rule on how the conditions in which legal provisions included in treaties are to be integrated in the states’ internal legal system, so as they might be applied by the competent authorities. This matter of concern is left for the states to decide upon, ruling over it as sovereignties, and concordant with their views on the relation between international and internal Law. The positivist solutions are inspired by two doctrines encompassed in constitutions or just simply practiced2.

The dualist concept



PhD. Candidate, Assistant Professor, “Petru Maior” University of Târgu-Mureş, Faculty of Economics, Law and Administrative Science, Romania.
1
Art. 28 Wien Convention.
2
Ion Filipescu, Augustin Fuerea, Drept instituţional comunitar european, ediţia a v-a, Editura Actami, Bucureşti, 2000, p. 52-53.

The dualist or pluralist view on the relationship between internal and international Law was presented by H. Triepel, in a more rigorous form in his textbook “Volkerrecht und landrecht”3, and in it’s flexible form by many authors, including D. Anzilotti in “Cours de droit international”4, M. Virally, L. Oppenheim5. Proponents of dualism consider that between internal and international provisions there cannot exist any kind of conflicts since these provisions don’t have the same object – internal provisions are applied exclusively between the state’s borders, and cannot intervene in the international legal system6.

In such conditions a perfect international treaty would only be effective at an international level. For it to be applied in a contracting state it is necessary for that state to adopt the legal measures from the treaty into a national provision or to introduce it through a legal plan that facilitates admission. In both ways we are confronted with a nationalization of the treaty, the international provision passing through a transformation, which allows it to be applied as an internal regulation, part of internal and not international Law7.

Also the subjects of Law can’t be the same in both legal systems. Each system’s application is well determined: one corresponds to relationships between states while the other to interpersonal relationships. International Law cannot rule over the relationships between individuals at an internal level.

The dualist theory teaches that Internal and International Law are two separate legal systems holding in common international responsibility8.
The two 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.
Analyzing the dualist theory we reach the following conclusions: - the basis for the mandatory force of internal law provisions is represented by the Constitution, while the basis for international law is represented by the principle pacta sunt...
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