A Matter of National Legal Tradition
International law does not determine which point of view is to be preferred, monism or dualism. Every state decides for itself, according to its legal traditions. International law only requires that its rules are respected, and states are free to decide on the manner in which they want to respect these rules and make them binding on its citizens and agencies.
“he transformation of international norms into domestic law is not necessary from the point of view of international law…the necessity of transformation is a question of national, not of international law”.
Both a monist state and a dualist state can comply with international law. All one can say is that a monist state is less at risk of violating international rules, because its judges can apply international law directly. Negligence or unwillingness to implement international law in national law can only pose a problem in dualist states. States are free to choose the way in which they want to respect international law, but they are always accountable if they fail to adapt their national legal system in a way that they can respect international law. Either they adopt a constitution that implements a monist system so that international law can be applied directly and without transformation, or they do not. But then they have to translate all international law in national law. In a monist state we rely only on the judges and not on the legislators, but judges can also make mistakes. If a judge in a monist states makes mistakes when applying international law, then the country violates international law just as much as a dualist country that, for one reason or another, does not allow its judges to apply international law directly and fails to translate or fails to translate correctly and effectively. One reason for preferring dualism is precisely the fear that national judges are not familiar with international law - a highly complex field of law - and hence are liable to make mistakes.
Read more about this topic: Monism And Dualism In International Law
Famous quotes containing the words matter, national, legal and/or tradition:
“The mother must teach her son how to respect and follow the rules. She must teach him how to compete successfully with the other boys. And she must teach him how to find a woman to take care of him and finish the job she began of training him how to live in a family. But no matter how good a job a woman does in teaching a boy how to be a man, he knows that she is not the real thing, and so he tends to exaggerate the differences between men and women that she embodies.”
—Frank Pittman (20th century)
“Just so before we’re international,
We’re national and act as nationals.”
—Robert Frost (1874–1963)
“Hawkins: The will is not exactly in proper legal phraseology. Richard: No: my father died without the consolations of the law.”
—George Bernard Shaw (1856–1950)
“If we are related, we shall meet. It was a tradition of the ancient world, that no metamorphosis could hide a god from a god; and there is a Greek verse which runs, “The Gods are to each other not unknown.” Friends also follow the laws of divine necessity; they gravitate to each other, and cannot otherwise.”
—Ralph Waldo Emerson (1803–1882)