The conventional wisdom in international law is that a State can accept international law and integrate it into the national system in two ways. In a single-tier legal system, international law is considered to be linked to and part of the domestic legal order of a State. In a dualistic legal system, on the other hand, international law is different from national law and, in order to influence rights and obligations at the national level, international law must be incorporated into domestic law through legislative procedures. The tension between these divergent views of international law reached its peak in Europe between World War I and World War II, when jurists began to seriously question how and to what extent binding international legal obligations and formal international institutions could minimize the danger of war. At its core, however, the distinction between a monistic theory and a dualistic theory is based on two competing and important objectives. In particular, monist theory gives priority to the desirability of a formal international legal order to establish the rule of law among nations, while dualistic theory gives priority to notions of individual self-determination and sovereignty at the state level. 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] According to the monist theory, if international law is adopted as domestic law, the treaty is automatically enforceable in domestic law. However, some states require a “translation” of the legislature for treaties to be enforceable, and they are; France, Spain, Belgium, Netherlands, United States.

Other countries, such as Germany and Italy, require an enforcement order (pre-legislative consent) prior to ratification. This is usually referred to as quasi-automatic incorporation, which allows the government to commit to fulfilling the obligations of the contract and to incorporate the contract into the municipal legal field. In order to know the relationship between international law and domestic law, it is important to understand what these two laws really are. Rules and regulations that deal with the conduct of states are known as international law. To simplify, we can say a set of principles that States can invoke or apply when negotiating with other States or international organizations. For similar reasons, it is also called “law of nations”. On the other hand, municipal law is known as the domestic law of the country. the clear principle of international law that a State cannot invoke its internal law to fail to comply with its obligations under international law. [4] Despite the mix of monist and dualist perspectives in domestic and international politics, the competing ideologies of Kelsen and Triepel are proving to be the best way to advance the rule of law on the international stage. The competition of ideas has generated sustained scientific and legal interest in the question of how and under what circumstances international legal norms that advance the goals of human rights, economic development and world peace can be applied democratically and politically legitimately.

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. For him, whether it is international law or domestic law, the individual is the ultimate unit of all law. He answered some fundamental questions of the philosophy of international law about the concept and origin of international law. The theory of international law and monism has no halfway. Kelson regarded natural law and international law as a single and coherent system. According to him, international law is at the top of the pyramid (according to his assumption of a basic norm). This means that a dualistic State can willingly or involuntarily violate international law. A two-tier system requires a continuous review of all subsequent national laws to determine whether they may be inconsistent with prior international law.

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. It is customary for textbooks on international law and CLOUT to include a chapter on the relationship between international law and national law. These chapters typically describe monism and dualism, positioning them as the traditional theoretical means of understanding the relationship between international law and national law, and then criticizing the concepts as useless. Many chapters then suggest alternative ways of understanding the relationship between international law and national law, often based on an account of State practice. Higgins 1994 and Malanczuk 1997 are particularly telling examples of this trend, although some of the jurisprudence in its chapters is outdated at the beginning of the 21st century. O`Connell 1970 accepts the relevance of monism and dualism and discusses two other ways in which the relationship can be conceived. Crawford 2012 and Denza 2006 offer more recent case law and are barrier-free. Ferrari-Bravo 1983 provides a historical context for the development of monism and dualism. The Charlesworth anthologies, et al. 2005 and Nijmann and Nollkaemper 2007 aim at “new perspectives” on the relationship between international law and national law, and their general discussions include new modern conceptions of monism and dualism. Dualists stress the difference between national law and international law and call for the implementation of the latter in the former.

Without this translation, international law does not exist as law. International law must also be national law, otherwise it is not a right at all. If a State accepts a treaty but does not adapt its national law in accordance with the treaty or does not create national law that explicitly incorporates the treaty, it violates international law. But it cannot be said that the Treaty has become part of national law. Citizens cannot rely on it, and judges cannot enforce it. National laws that contradict this remain in force. According to the dualists, national judges never apply international law, but only international law that has been translated into national 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. The terms monism and dualism are used to describe two different theories of the relationship between international law and national law. Many States, perhaps most, are partly monistic and partly dualistic in their effective application of international law in their national systems. In a dualist system, where international law translated into national law can be superseded by another national law according to the principle “lex posterior derogat legi priori”, which means that the subsequent law replaces the previous one. In a truly monistic country, there is no need to translate international law into local law.