By: Carolyn A. Dubay, Associate
Editor, International Judicial Monitor and Assistant Professor of Law,
Charlotte Law School
The conventional
wisdom in international law is that a state can accept and integrate
international law into the domestic system in one of two ways. In a monist
legal system, international law is considered joined with
and part of the internal legal order of a state. In a dualist legal system, on
the other hand, international law stands apart from national law, and to have
any effect on rights and obligations at the national level, international law
must be domesticated through legislative process. The tension between these
competing views of international law reached its height in Europe between World
War I and World War II, when legal scholars began to seriously question how and
to what extent binding international legal obligations and formal international
institutions could minimize the threat of war. At its core, however, the
distinction between a monist and dualist theory rests between two competing and
important goals. Specifically, monist theory prioritizes the desirability of a
formal international legal order to establish the rule of law among nations,
while dualist theory prioritizes the notions of individual self-determination
and sovereignty at the state level.
Under a monist model,
international law serves not merely as a legal framework to guide
state-to-state relations in the international sphere, but as a source of law
integrated into and superior to domestic law. As such, a properly ratified or
accepted treaty forms part of the national legal regime. An important
consequence of this understanding of the role of international law is that it
may be applied and enforced directly in domestic courts without the necessity
of domestic implementation. This framework thus creates a single and unitary
legal system, with international law at the top of the legal order and local,
municipal law subordinate. The monist view is attributed most often to the
work of Austrian legal scholar Hans Kelsen, who advocated in the 1920s for the
primacy of international law as a derivative of natural law, rather than as
merely an expression of the individual decisions of states to be bound by
certain norms through customary practice. Ultimately, Kelsen’s monist theory
was intended to promote international peace by creating binding obligations
enforceable against state actors in formal international justice institutions,
as indicated in his famous work, Peace Through Law (1944).
At the same time that
Kelsen was attempting to redefine the relationship between the state and the
international legal order, dualist legal theories emerged as the theoretical
counterpart to Kelsen’s unitary vision of law. Under a dualist model, there
is a dichotomy between international legal obligations that states as
sovereigns agree to recognize in their foreign relations, and domestic legal
rules that are binding in internal relationships between the state and its
citizens or subjects. Accordingly, international law can only have binding
legal force at the domestic level if it is implemented at the national or local
level. One of the most notable proponents of the dualist theory of international law was German scholar Heinrich Triepel,
who argued that international law was a manifestation of the "common will" of
sovereign states. As such, there was a complete separation between
international law and state law. From this theory, the common understanding
of dualism has emerged that international law is not supreme to domestic law,
and the relevance of international law in the domestic legal regime is a
question left to the local political processes. For example, under this
framework, a treaty takes effect and is binding in
international relations once it is executed by the head of state. To be
binding at the domestic level, and enforceable in a domestic court, the treaty
must be specifically implemented through appropriate legislation.
International
Judicial Monitor