Monism and Dualism in International Law - Dualism

Dualism

Dualists emphasize the difference between national and international law, and require the translation of the latter into the former. Without this translation, international law does not exist as law. International law has to be national law as well, or it is no law at all. If a state accepts a treaty but does not adapt its national law in order to conform to the treaty or does not create a national law explicitly incorporating the treaty, then it violates international law. But one cannot claim that the treaty has become part of national law. Citizens cannot rely on it and judges cannot apply it. National laws that contradict it remain in force. According to dualists, national judges never apply international law, only international law that has been translated into national law.

"International law as such can confer no rights cognisable in the municipal courts. It is only insofar as the rules of international law are recognized as included in the rules of municipal law that they are allowed in municipal courts to give rise to rights and obligations".

The supremacy of international law is a rule in dualist systems as it is in monist systems. Sir Hersch Lauterpacht pointed out the Court's determination to discourage the evasion of international obligations, and its repeated affirmation of:

the self-evident principle of international law that a State cannot invoke its municipal law as the reason for the non-fulfillment of its international obligations.

If international law is not directly applicable, as is the case in monist systems, then it must be translated into national law, and existing national law that contradicts international law must be "translated away". It must be modified or eliminated in order to conform to international law. Again, from a human rights point of view, if a human rights treaty is accepted for purely political reasons, and states do not intend to fully translate it into national law or to take a monist view on international law, then the implementation of the treaty is very uncertain.