Monism versus dualism

Summary

This lecture distinguishes between monism and dualism in international law, using the analogy of a coffee machine to illustrate how treaties become part of domestic legal orders. Monism allows international law to automatically integrate into domestic law, while dualism requires transformation through national procedures. Examples of monistic countries include Japan and Russia, and dualistic ones are Great Britain and Canada. The Netherlands is noted as a 'qualified monism' with some dualistic elements, highlighting the complexity and variation in legal systems worldwide.

Takeaways

• 📜 International treaties are agreements between countries, which can be bilateral or multilateral, focusing on economic domains like trade barriers.
• 🌐 The integration of international treaties into domestic legal orders can occur through monistic or dualistic approaches.
• 🔄 In a monistic system, international law automatically becomes part of the domestic legal order without the need for additional legislative action.
• 🔄 In a dualistic system, international law must be transformed into domestic legislation by the national parliament or ruler before it can be applied.
• ☕ The 'coffee machine' analogy is used to illustrate how international law 'filters' into domestic legal systems, with the filter representing the constitutional mechanism.
• 🗾 Examples of monistic systems include Japan, Russia, and the Netherlands, where international law is more readily integrated.
• 🏛️ Examples of dualistic systems include Great Britain, Canada, and Italy, where international law requires transformation into domestic law.
• 🇳🇱 The Netherlands is described as having a 'qualified monistic system' with some dualistic elements, such as the need for treaties to be published before integration.
• 📚 The application of international law in Dutch courts is selective, focusing on rules that are specific and applicable in individual cases.
• 🌍 Most countries exhibit a mix of monistic and dualistic elements, with varying degrees of integration of international law into their domestic legal orders.

Q & A

What are the two primary ways international treaties can be incorporated into the domestic legal orders of member states?

International treaties can be incorporated into the domestic legal orders of member states through monism and dualism.

What is the analogy used to explain the difference between monism and dualism in the context of international law?

The analogy used is a coffee machine, where international law is the coffee, and the filter represents the constitutional mechanism of a member state that determines how international law becomes part of the domestic legal order.

In a monistic system, how does international law become part of the domestic legal system?

In a monistic system, international law automatically becomes an integrated part of the domestic legal system once a country closes an international deal, without the need for additional actions like transformation into domestic legislation.

How does the dualistic system differ from the monistic system in terms of incorporating international law?

In a dualistic system, international law does not automatically become part of the domestic legal system. It requires transformation through national procedures, such as adoption by the national parliament, before it can be part of the domestic legislation.

What are some examples of countries that follow a monistic system?

Examples of countries that follow a monistic system include Japan, Russia (the Russian Federation), and the Netherlands.

What are some examples of countries that follow a dualistic system?

Examples of countries that follow a dualistic system include Great Britain, Canada, and Italy.

Can a country be considered 100% monistic or dualistic, and why?

Most countries are not 100% monistic or dualistic. They often have elements of both systems. For instance, the Netherlands is officially a monistic system but with some dualistic elements, such as the need for the government to publish an international treaty before it becomes part of the domestic legal system.

What is a 'qualified monistic system' and how does it relate to the Netherlands?

A 'qualified monistic system' is a system that has elements of both monism and dualism. In the Netherlands, this means that while the country is officially monistic, there are certain conditions, such as the need for publication of treaties, that give it dualistic characteristics.

How does the nature of international law rules affect their application in the Netherlands' courts?

In the Netherlands, courts will only apply international law rules in a court case if they are specific enough to be used in individual situations and are applicable to all persons.

Why is understanding the 'filter' concept important in studying the incorporation of international law into domestic legal systems?

Understanding the 'filter' concept is important because it helps to fully grasp how the constitution of a country influences the way international law ends up in the context of the domestic legal order.