Monism and Dualism in International Law - A Matter of National Legal Tradition

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.