Monism and dualism in international law pdf

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monism and dualism in international law pdf

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The application of international law in Nigeria and the façade of dualism

Monism and dualism were originally conceived as two opposing theorizations of the relationship between international law and domestic law. The subject of considerable debate in the first half of the 20th century, monism and dualism are regarded by many modern scholars as having limited explanatory power as theories because of their failure to capture how international law works within states in practice.

Notwithstanding their decline as theories, monism and dualism retain power as analytical tools. They act as consistent starting points for examinations of the relationship between international and domestic law.

For example, scholarship on the role of international law in domestic or European Union EU law, and on the ways that domestic courts incorporate international human rights law, continues to use monism and dualism as touchstones for analysis.

A number of recent decisions in domestic courts have seen some scholars revive monism and dualism as potential ways to understand domestic judicial reasoning on international law.

Monism and dualism also provide a shorthand way of signaling attitudes of individuals and institutions within domestic legal systems toward international law. In its most straightforward form, monism holds that international law and domestic law form part of a single universal legal system. A dualist system treats the international and domestic systems of law as separate and independent. The validity of international law in a dualist domestic system is determined by a rule of domestic law authorizing the application of that international norm.

Instead, international law may be treated in a variety of ways by the different institutions of a state. For example, courts may use international law in ways that a parliament does not. Or a state may allow for the direct incorporation of customary international law, but require international treaties to be transformed into domestic legislation before they can have direct effect within a state.

The scholarship on monism and dualism can broadly be divided into two kinds: theoretical expositions on the concepts themselves and analyses that take monism and dualism as the departure point for critique, often combined with an exposition on the practice of international law within states. Almost all of the scholarship included in this bibliography falls within one of those two types.

It is conventional practice for international law textbooks and casebooks to include a chapter on the relationship between international and domestic law. Such chapters generally describe monism and dualism, position them as the traditional theoretical ways of understanding the relationship between international and domestic law, and then critique the concepts as unhelpful.

Many chapters then propose other ways of conceiving the relationship between international and domestic law, often grounded in an account of the practice of states. Higgins and Malanczuk are especially insightful examples of this pattern, although some of the case law in their chapters is outdated in the early 21st century.

Crawford and Denza provide more up-to-date case law and are arranged in an accessible manner. Ferrari-Bravo provides historical context for the development of monism and dualism.

The edited collections Charlesworth, et al. Sydney, Australia: Federation Press, The different chapters examine national contexts, including Australia, New Zealand, Canada, and China, with this fluidity as the guiding principle. Crawford, James. Oxford: Oxford University Press, DOI: A comprehensive overview, this chapter rejects the theoretical models, advocating instead a pluralist view of relations between international and national law.

Denza, Eileen. Edited by Malcolm Evans, — A good example of the modern approach to monism and dualism. Denza positions the theories as lacking useful explanatory power and focuses instead on specific questions about the relationship between international and national law. Ferrari-Bravo, Luigi.

Edited by R. Macdonald and Douglas M. Johnston, — Dordrecht, The Netherlands: Martinus Nijhoff, An analysis of the applicability of the theories of monism and dualism, which the author calls pluralism, to the international problems of his period. Provides specific and useful historical context on the development of the two theories. Higgins, Rosalyn. Oxford: Clarendon Press, An excellent introduction to the ways in which the concepts of monism and dualism continue to influence international legal thinking.

Malanczuk, Peter. London: Routledge, Provides an excellent summary and extensive further reading on the rise and fall of the theories of monism and dualism, as well as an overview of the varied approaches of domestic legal systems of different states to international law. Useful and succinct. Nijmann, Janne, and Andre Nollkaemper, eds. The various authors examine the relationship between international and national law specifically in the context of globalization, the emergence of common values, and the dispersion of authority over different public and private actors.

Monism and dualism are given different levels of emphasis in the various chapters key contributions are described separately in this bibliography. International Law. Chapter 2 details four ways in which the relationship between international and national law can be conceptualized: monism, dualism, reverse monism, and harmonization.

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Introduction Monism and dualism were originally conceived as two opposing theorizations of the relationship between international law and domestic law. General Overviews It is conventional practice for international law textbooks and casebooks to include a chapter on the relationship between international and domestic law.

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II. Domestic Interaction with International Law

Monism and dualism were originally conceived as two opposing theorizations of the relationship between international law and domestic law. The subject of considerable debate in the first half of the 20th century, monism and dualism are regarded by many modern scholars as having limited explanatory power as theories because of their failure to capture how international law works within states in practice. Notwithstanding their decline as theories, monism and dualism retain power as analytical tools. They act as consistent starting points for examinations of the relationship between international and domestic law. For example, scholarship on the role of international law in domestic or European Union EU law, and on the ways that domestic courts incorporate international human rights law, continues to use monism and dualism as touchstones for analysis. A number of recent decisions in domestic courts have seen some scholars revive monism and dualism as potential ways to understand domestic judicial reasoning on international law. Monism and dualism also provide a shorthand way of signaling attitudes of individuals and institutions within domestic legal systems toward international law.

Monism and dualism in international law

Skip to main content. Domestic Interaction with International Law. Customary International Law Resources I.

India and international law: formal dualism, functional monism

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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 monist and partly dualist in their actual application of international law in their national systems. Monists accept that the internal and international legal systems form a unity. Both national legal rules and international rules that a state has accepted, for example by way of a treaty, determine whether actions are legal or illegal. In a pure monist state, international law does not need to be translated into national law. It is simply incorporated and has effect automatically in national or domestic laws. The act of ratifying an international treaty immediately incorporates the law into national law; and customary international law is treated as part of national law as well.

India has traditionally been described as a dualist country in relation to its engagement with international law. Formally at least, the allocation of the power of assumption of international obligations rests with the Executive, while its domestic implementation requires Parliamentary sanction. In this paper, I argue that while India remains formally committed to dualism, in practice it exhibits many monist tendencies. Once international law obligations are assumed, they are transported into domestic law through various channels, not all of which require Parliamentary approval. Further, the Indian judiciary also applies non-domesticated international law obligations in various ways that reflect shades of monism. This is a preview of subscription content, access via your institution. Rent this article via DeepDyve.

Don Greig is a man of many parts. Alongside his distinguished contribution to public international law and the law of contract, the arts and soccer are very important to him. I have been privileged to be one of his colleagues on and off the soccer pitch. I offer this essay, on the relationship between our two fields, with gratitude and respect. Many constitutions specify that customary international law, and reciprocal treaties which the state has ratified, are to form part of municipal law without the need for further state action. This monist model, in which municipal and international law form part of a single system, or at least directly related systems, situates the state in the community of nations.

This is an issue with important technical ramifications, namely the relationship between international and domestic law, also known as the "systems report". It is not natural that the problem should arise, it must be understood that international law is not intended to be and is not self-sufficient.

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  • Keywords Monism 4 Dualism 4 Domestic implementation of international law 4 October 28, ,\tcl-toulon.org[. Slainie T. - 04.05.2021 at 01:32
  • The terms monism and dualism are used to describe two different theories of the relationship between international law and national law. Many states, perhaps. Harrison M. - 06.05.2021 at 18:28

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