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.

Outlines

00:00

📜 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.

Keywords

💡Monism

Monism in the context of the video refers to a legal system where international law automatically becomes part of the domestic legal order once a country enters into an international agreement. This concept is central to understanding how international treaties are integrated into national law without the need for additional legislative actions. The video uses the analogy of a coffee machine to illustrate this, where 'coffee' (international law) easily passes through the 'filter' (constitutional mechanism) and becomes part of the coffee can (domestic legal order) without any hindrance.

💡Dualism

Dualism, as explained in the video, is a legal system where international law does not automatically become part of the domestic legal order. Instead, it requires a transformation through national legislative procedures before it can be applied domestically. This is likened to the coffee not passing through the filter in the coffee machine analogy unless it undergoes a specific transformation process. The video mentions that countries like Great Britain, Canada, and Italy follow a dualistic approach.

💡International Law

International law is the set of rules and principles governing the relations between nations. In the video, it is depicted as 'coffee' that needs to be incorporated into the 'coffee can' or domestic legal system. The discussion revolves around how different countries handle the integration of international law into their domestic legal frameworks, which is the core theme of the lecture.

💡Treaties

Treaties are agreements between countries, which can be bilateral (between two countries) or multilateral (among multiple countries). The video discusses how the content of these treaties eventually becomes part of the domestic legal orders of the member states, which is a crucial aspect of international law's implementation.

💡Domestic Legal Order

The domestic legal order refers to the body of laws that governs a country's internal affairs. The video's main theme is the process by which international treaties are incorporated into this order. Whether through monism or dualism, the video explores the mechanisms that allow international law to be used by citizens and institutions within a country.

💡Constitutional Mechanism

The constitutional mechanism is the process by which a country's constitution allows for the integration of international law. In the video, this is likened to a 'filter' in the coffee machine analogy, determining how international law is transformed or directly incorporated into the domestic legal system.

💡Economic Domain

The economic domain is mentioned in the video as an example of an area where countries might agree on international treaties, such as rules to reduce trade barriers. This highlights one of the practical applications of international law and how it can affect domestic legal orders.

💡Transformation

Transformation, in the context of the video, refers to the process by which international agreements are converted into domestic legislation. This is a key step in the dualistic system, where international law must be transformed to become part of the domestic legal order, as opposed to the monistic system where no such transformation is necessary.

💡Japan

Japan is given as an example of a country that follows a monistic system. This means that international law automatically becomes part of Japan's domestic legal order without the need for additional legislative actions, illustrating the practical application of the monistic principle.

💡The Netherlands

The Netherlands is described as having a 'qualified monistic system' in the video. This means that while it is officially monistic, there are certain conditions and checks in place, such as the requirement for the government to publish an international treaty before it can become part of the domestic legal system. This example shows the nuances that can exist within legal systems.

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]