HOW DOES INTERNATIONAL LAW The Dualist and Monist View

RELATE TO NATIONAL LAW?

RELEVANT QUESTIONS
What is the relationship between International Law and National Law?
How do they relate to one another?
Is conflict between these laws possible?
How does conflict of law occur?
In the event of a conflict between IL and NL, which law shall prevail?
MONISM AND DUALISM
Monism and Dualism are useful tools in analyzing the relationship between
International Law and National Law.
These views are influenced by different theories and as such, views the
relationship between IL and NL differently as well as their respective aspects
such as: (Bernas, 2002)
 Source
 Substance
 The relationship they regulate
THE MONIST VIEW
Under this theory, international law and domestic law belong to only one system of
law.
Under a monist model, IL serves not merely as a legal framework to guide state-to-
state relations in the international sphere, but as a source of law integrated into to
domestic law.
Monist theory prioritizes the desirability of a formal international legal order to
establish the rule of law among nations. (Dubay, 2014)
MONISM AND NATURAL LAW
The Law of Nature suggests the existence of a principle of right and wrong
and that every individual is equipped with the compass to determine the same.
Since individuals compose the State whose will is but the collective will of the
inhabitants, the State also becomes bound by the law of nature. (Nachura,
2014)
HANS KELSEN’S GRUNDNORM THEORY
Kelsen’s view on Monism is predicated on his theory on the existence of
Grundnorm.
Kelsen argues that a legal order is a compound of norms, the validity of which
relies on a hypothetical basic norm, the Grundnorm. (Rigaux, 1998)
He defined Grand Norms as the point of origin for all law, the ultimate norms
which confer validity upon all other norms.
HANS KELSEN’S GRUNDNORM THEORY
Kelsen’s Hierarchy of norms and legal order:
 At some stage, in every legal system, we get to an authorizing norm that has
not been authorized by any other legal norm, and thus it has to be
presupposed to be legally valid. (Wedberg, 1961)

On this view, Kelsen regards law as an indirect system of guidance: it does not
tell subjects what to do; it tells officials what to do to its subjects under certain
conditions. Thus, what we ordinarily regard as the legal duty not to steal is, for
Kelsen, merely a logical correlate of the primary norm which stipulates a
sanction for stealing. (Wedberg, 1961)
Ultimately, Kelsen’s monist theory was intended to promote international
peace by creating binding obligations enforceable against state actors in
formal international justice institutions, as indicated in his famous work, Peace
Through Law (1944). (Dubay, 2014)
THE DUALIST VIEW
From the perspective of the Dualist Theory, International Law and Municipal
Law are two distinct and independent systems.
Heinrich Triepel argued that international law was a manifestation of the
"common will" of sovereign states, as such, there was a complete separation
between international law and state law. (Dubay, 2014)
Dualist theory prioritizes the notions of individual self-determination and
sovereignty at the state level. (Dubay, 2014)
The Dualist view is heavily influenced by the School of Positivism.
DUALISM AND POSITIVE LAW
From the word itself, laws exist only by being posited, that is, through the
mechanism in place for the enactment of laws.
Accordingly, international law can only have binding legal force at the
domestic level if it is implemented at the national or local level. (Dubay, 2014)
Law is what is and not what ought.
 MONISM DUALISM

Naturalism – universal principles Positivism – self-determination

Single and unitary legal order Two distinct legal systems

International Law is superior over International Law matters only in so

National Law far as the States adhere to them

Little to no possibility of conflict Real possibility of conflict

CONFLICT: INTERNATIONAL LAW AND
NATIONAL LAW
Since Monist view regards National Law and International Law as one
integrated body of law, then the possibility of conflict is narrow.
Consequently, since the Dualist view regards National Law and International
Law as two distinct sets of legal system, then there exist a real possibility of
conflict.
INCORPORATION CLAUSE & DOCTRINE OF
TRANSFORMATION
How do Treaties and Generally Accepted Principles of Law
become part of the law of the land?
Doctrine of Incorporation:
 Section 2, Article II of the 1987 Philippine Constitution, or the Incorporation
Clause states that the Philippines adopts the generally accepted principles
of international law as part of the law of the land.
 If a principle is generally accepted within the realm of international law, it is
deemed automatically incorporated as part of the national law.
HARD TRANSFORMATION
 Hard transformation is done by the Legislature through direct legislation and
direct codification of a principle of international law.
 Section 21, Article VII of the 1987 Philippine Constitution
 Ratification by the Senate of a treaty entered into by the President with
another State pursuant to Section 21, Article VII of the 1987 Philippine
Constitution is another example of a hard transformation.
SOFT TRANSFORMATION
 Soft transformation may be done when the Supreme Court, in deciding a
case, invokes certain principle of international law, the same shall form part
of the law of the land.
SELF-EXECUTING AND NON-SELF-
EXECUTING TREATY
A self-executing treaty has the same effect as an Act of Congress, while a
non-self-executing treaty requires a legislative act in order to operate as
domestic law. (Solomon, 2006)
Some treaties, having been imbued with generally accepted principles of
international law and international customary norms, are deemed
automatically incorporated, yet, some still needs to be codified for purposes
of effective implementation.
CONFLICT WITH THE CONSTITUTION
Doctrine of Constitutional Supremacy
Section 5, Article VIII of the 1987 Philippine Constitution:
 The Supreme Court shall have the following power to review, revise, reverse,
modify, or affirm on appeal or certiorari, as the law or the Rules of Court
may provide, final judgments and orders of lower courts in all cases in which
the constitutionality or validity of any treaty, international or executive
agreement is in question
PACTA SUNT SERVANDA
Article 26 and 27 of the Vienna Convention
 In the event that the Supreme Court finds a treaty unconstitutional, such
decision is binding only within the domestic sphere and if the other
contracting State challenges such ruling before the international forum, the
validity of the treaty is likely to be upheld and the Supreme Court’s
determination will be regarded as a unilateral renunciation and we will be
bound by the principle of Pacta Sunt Servanda or “agreements must be kept.”
ARTICLE 26 AND 27 OF THE VIENNA
CONVENTION
 According to Article 26 and 27 of the Vienna Convention , every treaty in
force is binding upon the parties and must be performed by them in good
faith and a party may not invoke the provisions of its internal law as
justification for its failure to perform a treaty.
CONFLICT WITH A STATUTE
The fact that international law has been made part of the law of the land
does not pertain to or imply the primacy of international law over national or
municipal law in the municipal sphere.
Rules of international law are merely equal in standing with, but are not
superior to, national legislative enactments.
LEX POSTERIOR DEROGAT PRIORI
 This is a maxim which means that a legal rule arising after a conflicting legal
rule prevails over the earlier rule to the extent of the conflict. The principle
may apply both to customary rules of law and to provisions of conflicting
treaties between the same parties.
 Law which comes last in time, will usually be upheld by the municipal tribunal.
 A treaty may repeal a statute and a statute may repeal a treaty.
CONCLUSION
 REFERENCES
Bernas, J. G. (2009). Introduction to public international law. Manila, Philippines: Rex Book Store.
Dubay, C. A. (2014). General Principles of International Law: Monism and Dualism. Retrieved March 07, 2021, from
http://www.judicialmonitor.org/archive_winter2014/generalprinciples.html
Nachura, A. B. (2014). PUBLIC INTERNATIONAL LAW. In Outline Reviewer in Political Law. Quezon City. VJ GRAPHIC
ARTS, INC.
Rigaux, F. (1998). Hans Kelsen on international law. European Journal of International Law, 9(2), 325-343.
doi:10.1093/ejil/9.2.325
Solomon, A. (2006). When Can an Individual Enforce a Right Set Forth in an International Treaty? American Society of
International Law and the International Judicial Academy.
Spaak, T. (2013). Kelsen on Monism and Dualism.
Wedber, A. (1961). General Theory of Law and State. New York: Russell & Russell.