Monist and Dualist Systems of International Law

Despite the mixing of monist and dualist perspectives in domestic and international politics, the competing ideologies of Kelsen and Triepel are proving to be the best way to advance the rule of law on the international stage. The competition of ideas has generated sustained scientific and legal interest in the question of how and under what circumstances international legal norms that advance the goals of human rights, economic development and world peace can be applied democratically and politically legitimately. “[T]he transformation of international norms into domestic law is not necessary from the point of view of international law. The need for transformation is a matter of national law, not international law. [10] The national application of international law, particularly by national courts, is an issue that has always given rise to divergent views from different groups of jurists, national courts and human rights defenders. While human rights defenders, because of the universal nature of human rights, have consistently advocated that international human rights law be universally applied by national courts, some courts, particularly in Africa, have emphasized procedural requirements for the application of these standards in their jurisdictions. In our time and at this time, when the concept of the monistic dualistic distinction is gradually losing its importance, it is necessary for the courts to become aware of this fact and to adapt appropriately, especially with regard to human rights. If international law is not directly applicable, as is the case in dualistic systems, it must be translated into national law and existing national law contrary to international law must be “translated”. It must be modified or eliminated to comply with international law. Again, from a human rights perspective, if a human rights treaty is accepted for purely political reasons and States do not intend to fully transpose it into their national law or to adopt a monistic view of international law, the implementation of the treaty is very uncertain. [5] Monists accept that domestic and international legal systems form a unity.

National legislation and international rules that a State has accepted, for example through a treaty, determine whether actions are legal or illegal. [1] In most so-called “monist” states, a distinction is made between international law in the form of treaties and other international laws, e.g. customary international law or jus cogens; Such states can therefore be partly monistic and partly dualistic. A good example of the modern approach to monism and dualism. Denza positions theories as an unnecessary explanatory power and instead focuses on specific questions about the relationship between international law and national law. These include the following questions: “Is international regulation directly applicable and directly effective?” and “Can a treaty prevail over a national constitutional norm?” Accessible and practice-oriented. In this article, I examine claims (a), (b) and (c) and arguments (i) to (v) advanced by Kelsen in support of these claims. I argue (I) that if Kelsen is correct in saying that only monism is compatible with the epistemological postulate, his assertion that the normative conflicts identified by critics of monism and cited as an obstacle to the theory of monism are only contradictions of norms, not contradictions of norms, is doubtful. I also argue (II) that if Kelsen had been right in saying that these conflicts of norms are only contradictions of norms, dualists could have asserted the same defense against criticisms of dualism, thus avoiding criticism of dualism by criticism of the doctrine of recognition.

Moreover, I submit (III) that Kelsen`s discussion of contradictions of norms and contradictions of norms is problematic in more ways than one, and that it undermines the clarity and usefulness of this distinction. Next, I argue that Kelsen`s claim that dualism collapses into solipsism because of its dependence on the doctrine of recognition is well-founded, (V) that Kelsen`s defense of monism with the primacy of international law is plausible, but not without problems, and (VI) that Kelsen`s claim that there can be no sovereign states independent of international law is plausible. Finally, I propose (VII) that, contrary to what Kelsen seems to think, the epistemological postulate seems to exclude locating law in a higher domain of norms and values clearly separated from the world of time and space.

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