Monism versus dualism
Summary
TLDRThis 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.
Outlines
📜 Introduction to Monism and Dualism in International Law
This paragraph introduces the concepts of monism and dualism within the framework of international law. Treaties, which are agreements between countries, can be either bilateral or multilateral. The focus is on how these international treaties are incorporated into the domestic legal systems of member states. The analogy of a coffee machine is used to explain the two different approaches: monistic and dualistic. In a monistic system, international law automatically becomes part of the domestic legal order once a country agrees to an international deal, while in a dualistic system, an international agreement must be transformed into domestic legislation by the national parliament or ruler before it can be part of the domestic legal order.
Mindmap
Keywords
💡Monism
💡Dualism
💡International Law
💡Treaties
💡Domestic Legal Order
💡Constitutional Mechanism
💡Economic Domain
💡Transformation
💡Japan
💡The Netherlands
Highlights
Introduction to the difference between monism and dualism in international law.
Definition of treaties as agreements between countries, which can be bilateral or multilateral.
Explanation of how international treaties become part of domestic legal orders.
The analogy of a coffee machine to illustrate the monistic and dualistic approaches.
Description of a monistic system where international law automatically becomes part of the domestic legal order.
Clarification that in a monistic system, no additional action is required for international law to be effective domestically.
The dualistic system requires transformation of international agreements into domestic legislation.
Examples given of monistic systems, including Japan, Russia, and the Netherlands.
Examples given of dualistic systems, including Great Britain, Canada, and Italy.
Discussion on the Netherlands' qualified monistic system with background checks.
The requirement for the Dutch government to publish an international treaty before it becomes part of the domestic legal system.
The role of specificity in international law for it to be applicable in Dutch court cases.
Observation that most countries are not purely monistic or dualistic but have elements of both.
The importance of understanding the 'filter' mechanism to grasp how international law is integrated into domestic legal orders.
Conclusion and encouragement for viewers to have learned about monism and dualism in the context of international law.
Transcripts
[Music]
ladies and gentlemen welcome at this Web
lecture in which I will explain the
difference between monism and dualism in
the context of international law
treaties are agreements between
countries they could be bilateral so
that is two countries agreeing on
something and equity could be
multilateral that means a group of
countries agrees on something in the
economic domain for instance we can
agree on rules that reduce trade
barriers for instance the question is
the content of these international
treaties how do they at some point end
up in the domestic legal orders of the
member states so that it can be used by
its citizens or by the institutions that
are addressed well this can be done in
two ways a monastic way and a dualistic
way and to explain the distinction
between these two approaches I often
make use of the classic coffee machine
the idea is simple international law is
put as coffee on top of the machine and
at some point the coffee has to end up
in the coffee can below so to do that it
has to go through a filter this filter
can be compared with the constitutional
mechanism of a member state and the
filter can be of a monastic nature or a
dualistic nature this says a great deal
about how the International agreement
ends up in the domestic legal order in
itself and can be used as such in a
monastic system international law forms
already an integrated part of the
domestic legal system there is not
really a distinction between the two of
them so once the country closed an
international deal it automatically
forms a part of the domestic legal order
so the coffee goes easily through this
filter and there is no need for an
additional action for all for instance
the national parliament or something
like that so the international law does
not necessarily have to be transformed
in
to domestic legislation it is already a
part of the domestic legislation the
dualistic system is slightly different
in a dualistic system the coffee will
not get through the filter just like
that a national parliament or a national
ruler will have to transform the
international agreement first
international law and use the national
procedures to adopt this legislation so
a transformation must be made well
examples of a monastic system are for
instance Japan Russia the Russian
Federation and the Netherlands examples
of a Jew allistic system are for
instance Great Britain Canada and Italy
so our countries a hundred percent
monastic or a hundred percent dualistic
while mostly not take the Netherlands
for instance we officially are a monent
monastic system but with some background
checks if you like so for instance our
government first has to publish an
international treaty before it can be a
part an integrated part of the domestic
legal system only when this is done it
is a part of a domestic legal system and
this means that the government has a
choice can we publish or not to make
this a part of the domestic legal system
another element to it is that a court in
the Netherlands will only use those
elements of international law in a court
case to apply it when these rules have
in nature that it is actually useful
that it can be used in individual
situations so the rule should be
specific enough to be used in individual
cases they should be applicable on all
persons we call that so in that sense we
call the Netherlands not necessarily a
monastic system with a qualified
monastic system and what we see around
the world is that in each and every
legal system we have those elements of
monism and dualism and some countries
are more monastic and some countries are
more Julis t'k but they barely are a
hundred percent monastic or dualistic so
studying this particular
the filter is really important to fully
grasp the meaning of the Constitution in
the way international law will end up in
the context of the domestic legal order
well thank you very much for watching
and I hope you've learned a few things
about monism and dualism in the context
of international law
[Music]
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