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Monism and Dualism Theory in International Law

Monism and Dualism Theory in International Law

At the same time that Kelsen sought to redefine the relationship between the state and the international legal order, dualistic legal theories emerged as a theoretical counterpart to Kelsen`s unified conception of law. In a dualistic model, there is a dichotomy between obligations under international law, which recognize states as sovereign in their foreign relations, and national legal rules, which are binding in the internal relations between the state and its citizens or subjects. Consequently, international law can only be legally binding at the national level if it is applied at the national or local level. One of the most notable proponents of the dualistic theory of international law was the German scholar Heinrich Triepel, who argued that international law was a manifestation of the “common will” of sovereign states. Therefore, there was a complete separation between international law and state law. From this theory emerged the general understanding of dualism according to which international law is not superior to national law and that the relevance of international law in the national legal regime is a matter left to local political processes. In this context, for example, a treaty enters into force and is binding in international relations as soon as it is implemented by the Head of State. To be binding at national level and enforceable before a national court, the treaty must be effectively implemented by appropriate legislation. Moreover, despite the monism of the Swiss legal system, it is still unclear which authority is authorized to terminate international agreements (see, for example, Blum/Nägeli/Peters (BNP); Keller/Balazs). Some authors argue that limited scope contracts can be terminated unilaterally by the Swiss government, while “significant” contracts advocate a flexible approach with parliamentary approval (BNP, pp. 542 et seq.). Other authors are of the view that Parliament`s consent is always required for contract termination (see references in Keller/Balazs, note 107).

Provides an excellent summary and abundant literature on the rise and fall of theories of monism and dualism, as well as an overview of the various approaches of the national legal systems of various States to international law. Useful and concise. Indeed, some passages in the High Court`s decision in Miller may indicate that the case is about dualism. In addition to the accent that 1. The Crown cannot unilaterally alter national law in the exercise of its powers to enter into or terminate contracts (paragraph 32), the High Court held that 2. National courts have no jurisdiction to interpret international law because “treaties […] are not directly applicable” (para. 33) and (3) that domestic courts cannot review the legality of the Crown`s exercise of privileges (para. 33). The possibility of terminating international agreements is often raised in the Swiss political debate (see, for example, BNP, p. 552 with further references).

As early as 1988, Swiss parliamentarian Hans Danioth called on the German government to consider withdrawing from the European Convention on Human Rights, even as Switzerland celebrated its 40th anniversary. On the occasion of the anniversary of the ratification of the ECHR, some members of the federal government and the federal parliament were still in favour of leaving, even if their opinions were divided. The Swiss people will soon be forced to vote on a proposal for constitutional amendment, on the basis of which existing international treaties that contradict the Swiss Constitution must be renegotiated or abrogated. On the other hand, the question of whether a particular international agreement should be abrogated is rarely put to the vote explicitly, probably because of its political sensitivity and therefore its low chances of success at the ballot box. The practice of some political parties of avoiding the issue of termination while triggering votes that might possibly require a renegotiation of international agreements is criticised by some as a means of misleading voters (see, for example, BNP, p. 557). In the vast majority of democratic countries outside the Commonwealth, the legislature or part of the legislature participates in the ratification process, so that ratification becomes a legislative act and the treaty becomes simultaneously effective in international and local law.

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