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Monist Theory in International Law

The monists accept that the domestic and international legal systems form a unity. National legislation and international rules that a State has accepted, for example through a treaty, determine whether actions are legal or illegal. [1] In most so-called “monist” states, a distinction is made between international law in the form of treaties and other international laws, e.g. customary international law or jus cogens; Such states can therefore be partly monistic and partly dualistic. Despite the continuing interest of academics in the implications of the debate between monism and dualism, in reality, most nations have a mix of monistic and dualistic approaches to international law. The status of international law in the United States reflects this combination of approaches. With respect to constitutional sources of authority, Article VI of the United States Constitution clearly states that “the Constitution and laws of the United States promulgated in accordance with this Constitution; and all treaties concluded or to be concluded under the authority of the United States shall be the supreme law of the land; and the judges of each State shall be bound by it, notwithstanding the contrary of the Constitution or the laws of any State. This explicit incorporation of treaties into binding (and supreme) domestic law was complemented by the idea that customary international law “forms part of our law,” as noted by the U.S. Supreme Court in The Paquete Habana, 175 U.S. 677 (1900).

With the emergence of formal international institutions in the 20th century. However, with the explosion in the number, variety, and scope of international agreements, the United States has adopted an increasingly dualistic approach to the place of international law in the domestic sphere. Recently, questions have been raised about the democratic legitimacy of international law and the decisions of international tribunals. On a more practical level, following the decision of the United States Supreme Court in Medellin v. Texas, 552 U.S. 491 (2008) on the enforceability of the Vienna Convention on Consular Affairs at the national level, and in Guantanamo detainee cases concerning the national application of the Geneva Conventions, the translation of treaty obligations into enforceable rules often depends on: whether a contractual obligation is considered self-executing or non-self-executing. This theory is generally practiced by dualistic states. The founding theory involves the enactment and implementation of laws.

International treaties have a higher status than domestic law (but no more than the constitution). For Lauterpacht, international law is for states, not governments. For him, the international community was a community of individuals whose will is expressed by States. In its purest form, monism dictates that national law contrary to international law is null and void, even if it dates from international law and even if it is constitutional in nature. From a human rights perspective, for example, this has certain advantages. For example, one country has accepted a human rights treaty such as the International Covenant on Civil and Political Rights, but some of its domestic laws restrict freedom of the press. A citizen of that country who is being prosecuted by his State for violating this national law may invoke the human rights treaty in a national courtroom and ask the judge to apply that treaty and decide that the national law is invalid. You don`t have to wait for a national law that translates international law. In a monistic country, a law arises after international law has been accepted, and if it contradicts international law, it automatically becomes null and void. The international rule will continue to prevail. If international law is not directly applicable, as is the case in dualistic systems, it must be translated into national law and existing national law contrary to international law must be “translated”. It must be modified or eliminated to comply with international law.

Again, from a human rights perspective, if a human rights treaty is accepted for purely political reasons and States do not intend to fully transpose it into their national law or to adopt a monistic view of international law, the implementation of the treaty is very uncertain. [5] Monism and dualism were originally conceived as two opposing theories of the relationship between international law and national law. Monism and dualism, which were the subject of considerable debate in the first half of the 20th century, are considered by many modern scholars to be theories with limited explanatory power because they do not grasp how international law works in practice in states. Despite their decline as theories, monism and dualism retain their power as tools of analysis. They serve as coherent starting points for examining the relationship between international and national law. For example, research on the role of international law in national or European Union (EU) law and how national courts integrate international human rights law continues to use monism and dualism as touchstones for analysis. A number of recent decisions by national courts have led some scholars to revive monism and dualism as possible ways of understanding national legal reasoning on international law. Monism and dualism also provide a shortcut for signalling the attitudes of individuals and institutions within national legal systems towards international law. In its simplest form, monism asserts that international law and national law are part of a single universal legal system. The most famous proponent of monism, Hans Kelsen, argued that there was a hierarchical relationship within the single-tier legal system, in which international law was superior to national law and therefore prevailed in any conflict between the two laws.

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