Theoretical and General Approaches to Monism, Dualism, and International Law

Theoretical Approaches to International and Domestic Law: Monism and Dualism

• Monism

  • Core Concept: Monism views the legal universe as a single, unified legal system where international law and domestic law operate within the same framework.
  • Legal Tradition Association: Primarily associated with the Civil law tradition.
  • Theoretical Basis: Rooted in the school of Natural law.
  • Key Scholars and Theories:
    • Hersch Lauterpacht: Posited that the individual is the ultimate subject of all law, bridging the gap between national and international spheres.
    • Hans Kelsen: Identified with the "Theory of knowledge." Kelsen argued for a basic norm (Grundnorm) where ‘the states ought to behave as they have customarily behaved’ (referencing Crawford textbook, page $46$).
  • Method of Reception: Adoption of international law occurs through Incorporation, meaning it is automatically part of the domestic legal order without requiring separate legislative action.

• Dualism

  • Core Concept: Dualism perceives international law and domestic law as two entirely different and independent legal systems.
  • Legal Tradition Association: Primarily associated with the Common law tradition.
  • Theoretical Basis: Rooted in Legal positivism, which emphasizes the sovereignty of the state and the distinctness of its internal orders.
  • Method of Reception: Adoption of international law occurs through Transformation, meaning international rules must be formally translated or transformed into domestic law by an act of parliament or the state to be valid internally.

• Third Perspective and Pluralism

  • Fitzmaurice’s View: Contends that the two systems (international and domestic) do not come into conflict specifically as systems. Instead, what occurs is a conflict of obligations for the state.
  • Pluralism: Recognizes that each legal system maintains its own unique approach to others. There are at least $194$ distinct national legal systems in the world.
  • Definitions of Law Types:
    • International Law: Characterized as the law of coordination.
    • Domestic Law: Characterized as the law of subordination.
  • Note on Source Material: Information regarding Monism and Dualism is heavily supplemented by the Crawford textbook for a deeper understanding of these theoretical frameworks.

General Approaches: National Law in International Courts and Tribunals

• National Law as an Act of State

  • Domestic legal actions are viewed as acts of a state. If these acts constitute a violation or breach of international law, they trigger state responsibility.
  • The Inadmissibility of Domestic Law as an Excuse: A state cannot use its own domestic law as a justification for failing to exercise or fulfill its international law obligations.
  • Case Example: The Alabama Claims:
    • An arbitration between the USA and Great Britain regarding events during the American Civil War in the $1860s$.
    • The principle established was that domestic legislation (or lack thereof) does not excuse a violation of international neutrality or other obligations.
    • Related reference: Judge Sir Greenwood’s UN lecture.

• National Law as a Source of International Law

  • National law serves as a primary source of evidence regarding state practice, which is a necessary component for the formation of customary international law.

General Approaches: International Law in Domestic Courts

• Integration into Domestic systems
  • International law is often described as being ‘part of’ the domestic law of a state, though the specific mechanism depends on the country's legal tradition.
  • The two main pillars considered are:
    • Customary international law.
    • Treaties.

Res Judicata: International vs. Domestic Law

• Defining Res Judicata

  • Recognized as a general principle of law, meaning a matter that has been adjudicated by a competent court and may not be pursued further by the same parties.

• Effect of National Decisions on International Jurisdictions

  • There is no effect of res judicata resulting from the decision of a national court when an international jurisdiction is concerned. An international court is not bound by the finality of a domestic ruling.

• Effect of International Decisions on National Courts

  • In principle, decisions made by international organizations or tribunals are not binding on national courts under the doctrine of res judicata.

The Common Law Tradition

• United Kingdom (UK)

  • Customary International Law: Operates under the principle of incorporation.
  • Treaties: Follows the dualism model, requiring legislative action to have domestic effect.

• United States of America (USA)

  • Treaties: Regarded as a source of law. However, a distinction is made between:
    1. Self-executing treaties: Automatically become part of the law.
    2. Non-self-executing treaties: Require implementing legislation (e.g., the International Covenant on Civil and Political Rights, or ICCPR).
  • Customary International Law: Explicitly recognized as a source of law (citing the Paquete Habana case).

• Australia

  • Australia's specific approach is noted for separate discussion in the $2nd$ recording of the Week $3$ series.

The Civil Law Tradition

• Status of Customary International Law

  • Generally follows the principle of incorporation.
  • Germany: Under its Basic Law, customary international law is considered part of Federal law. It occupies a hierarchical position higher than ordinary legislation but lower than the Basic Law itself. It has the power to create rights and duties directly for individuals.
  • Italy: Customary international law has the status of a "constitutional directive" according to the Constitution. It uses incorporation generally, but requires transformation for rules that are non-self-executing.
  • Russia: Post-Soviet Russia differs from the previous Soviet Union era. While in theory it is part of its legal system, the reality of its application can differ from the theoretical framework.
  • The Netherlands: The Constitution is silent on this matter; customary international law does not prevail over domestic legislation.

• Status of Treaties

  • Generally, there is a trend toward the supremacy of treaties over domestic law.
  • Germany: Treaties become part of the law but require prior legislative ratification. Once ratified, they hold a status similar to an ordinary statute.
  • Italy: Treaties have no direct effect unless they are implemented via legislation (the process of transformation).
  • Russia: Treaties are granted priority over domestic law.
  • The Netherlands: Treaties are automatically incorporated into the Dutch municipal legal system.