International Law in Domestic Courts:

The Dualist and Monist Theories

By the principles that govern international law, states are committed to respect and fulfill their
treaty and other international law obligations (recall pacta sunt servanda)
And a state cannot cite its own domestic laws as an excuse/ justification for it violating
one of its international law obligations
But international law doesnt dictate exactly how a state should incorporate its international law
obligations into its domestic legal structure, internal legal systemthis matter is left for each
state to decide, taking into consideration their views on the relationship between international and
domestic law
2 doctrines/approaches have developed, either written into states constitutions or just followed in
practice: Dualism and Monism

The dualist concept (or pluralist view) on the relationship b/w intl law + domestic law
-

Proponents of dualism think that international law and domestic law dont operate on the same
plane/ sphere, so there cant really be any conflict between the two, since they dont have the
same objectinternal provisions are applied exclusively between the states borders and cant
intervene in the international legal system
An international treaty would only be effective at an international levelin order for it to be
applied domestically in a contracting state, that state would first have to adopt the provisions of
the treaty into a national provision (i.e. some type of domestic legislation)
So-called nationalization of the treaty: the international provisions of the treaty pass
through a transformation, which allows them to be applied as an internal regulation, part
of the domestic law and not international law
The subjects of law arent the same in both legal systems, each systems application is well
determined (one corresponds to the relationship between states, while the other to interpersonal
relationships within a state). International law cant dictate the relationships between individuals
at an internal level
Dualist theory stresses that domestic and international law are two separate legal systems
The 2 systems are different through their source of lawinternal law originates in the
will of the state itself, while international law is based on the common will of contracting
states
The basis for the mandatory force of internal law provisions is ultimately the constitution;
for international law it is probably ultimately the principle of pacta sunt servanda (at
least as far as treaty law goes)
International law provisions cant influence internal laws validity and vice versa
Communication between the 2 systems is possible, but only via a specific procedure
international law provision is introduced into internal law by an internal provision that
recognizes/ adopts/ incorporates the international law provision
2 additional things to keep in mind about dualist theory:

Historically its a pretty significant doctrinedeveloped in a time where international

law almost exclusively inter-state. But remember over the last few decades international
law gradually addressing itself more and more to individuals and other non-state actors
From a practical point of view, internal and international law do intersectfor the most
part its up to the executives and courts of the states to interpret and apply international
law while acting (eg Osama Bin Laden article from first class)

The monist concept of international and domestic law

-

Sees international law and domestic law as part of the same system, not operating in different
spheres
Stresses the unity of legal order
According to the monist theory, international law provisions apply directly on a states internal
legal orderinternational law applies immediately, without having to be admitted or transformed
within the internal legal system of the member states
Monist approach says that international law and domestic law operate in the same sphere, with a
super-ordinate and sub-ordinate relationship (doesnt actually say which one will trump in case of
conflictcan be international law that takes precedence, or can be domestic law that takes
precedence)
Main thing is that international provisions are immediately applicable and enforceable in
domestic legal systems, without necessity to nationalize the international provisions
Monists maintain a unitary view of the law as a whole and are opposed to strict division between
international and domestic law

Where do most states fall?

-

Think of a spectrum/ line, with pure dualism and pure monism as the 2 ends
Most states fall somewhere on this spectrum, not necessarily following strict dualist approach or
strict monist approach. And states can change approach depending on circumstances
Seen most clearly in cases in domestic courts of a state that might involve international law issues
will the court be open to referring to international law to help decide the case? How does the
court view international law? Does the state think its domestic laws are more advanced, better
equipped than international law on the topic?