Treaties and domestic law Dualism & Monism International Law explained

Treaties and domestic law: Dualism and Monism

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Once a treaty has entered into force for a State, it does not necessarily become part of its law.

In particular, when the treaty imposes responsibilities and rights on natural or legal persons, it takes effect only after it becomes part of the national law.

However, a country may not invoke the provisions of its internal law, to justify its failure to perform a treaty.

Thus, if supplementary legislation is necessary to comply with a new treaty, the State must ensure this has been done, before the treaty enters into force.

The constitution of each State regulates this issue, by applying two opposite doctrines: dualism and monism.

Under the dualist approach, like in the United Kingdom, the constitution gives no special status to a treaty, as the rights and obligations created by the treaty provisions have no effect, unless the legislature incorporates them into domestic law.

Dualism reflects the limited power of the government to sign a treaty, without the prior approval of the parliament, and the legislature power under the constitution to make law.

Under the monist approach, like in Switzerland, a treaty becomes part of domestic law automatically, once it has been concluded under the constitution and has entered into force for the State.

A distinction is also made between treaties, according to their nature or subject matter, some being regarded as being self-executing, others requiring legislation.

A self-executing treaty may constitute supreme law, and override any inconsistent national legislation, whether existing or future.

However, some legislation will be needed in many cases, as the constitution may require the treaty to be first approved by the parliament.

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