Comparative Constitutional Law: Dualism vs Monism

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Questions and Answers

When does international law of a treaty become binding in a purely dualist system?

Immediately upon negotiation

Upon transposition of norms (correct)

Upon ratification of the treaty

When the treaty is signed

What characterizes a purely monist system regarding the binding nature of international treaties?

Binding only after transposition into domestic law

Binding only after parliamentary approval

Binding immediately upon ratification (correct)

Not binding until a specific law is passed

In the context of a legal conflict, what determines which norm prevails in a purely dualist system?

The domestic hierarchy of norms where the international norm is transposed (correct)

The specific provisions of international law

International treaties always prevail

Domestic law is always superior

Which country is predominantly a monist system but has dualist tendencies for conflicting treaty rules?

The Netherlands Signup and view all the answers

What is a requirement for the ratification of treaties in Germany's legal system?

Legislation passed by Parliament Signup and view all the answers

Which statement is true for a purely monist system concerning the assignment of international norms?

There is a specific place assigned in the domestic hierarchy for all international norms/law Signup and view all the answers

What type of system typically becomes binding upon the transposition of norms, reflecting a dualist perspective?

Purely dualist system Signup and view all the answers

What is theoretically considered possible regarding the consequences of monism?

Exceptions exist but are rare Signup and view all the answers

What primarily distinguishes a monist system from a dualist system in terms of treaty implementation?

Monist systems recognize the binding nature of treaties directly within national courts. Signup and view all the answers

Which approach should be taken to determine whether a state follows a monist or dualist system?

Examine the status of international law in domestic law as reflected in the Constitution. Signup and view all the answers

Which of the following is NOT a characteristic of a dualist system?

Judgements by international courts are directly applicable. Signup and view all the answers

In a purely monist system, which of the following elements is considered binding?

The original text and wording of the treaty itself. Signup and view all the answers

How can domestic courts influence the interpretation of international law in a dualist system?

Through judicial decisions that translate international treaties into local context. Signup and view all the answers

Which of the following statements is true regarding the comparative constitutional analysis of monist and dualist systems?

Monism allows easier integration of international obligations into national legislation. Signup and view all the answers

What typically characterizes the binding nature of international law within a dualist system?

Requirement for legislative enactment as national law. Signup and view all the answers

Which factor is least likely to influence a state's approach towards being predominantly monist or dualist?

The consensus among state representatives during international negotiations. Signup and view all the answers

What characterizes a dualist system regarding treaty obligations?

Legislative action is required to incorporate treaties into domestic law. Signup and view all the answers

Which of the following statements about the United States' approach to treaties is correct?

Only self-executing treaties have direct effect without further legislation. Signup and view all the answers

Which treaty crimes fall under the jurisdiction of the Rome Statute?

Genocide Signup and view all the answers

What does the principle of complementarity in the context of the International Criminal Court signify?

The ICC only acts when national jurisdictions are unwilling or unable to prosecute. Signup and view all the answers

How are human rights treaties treated differently in South Africa's legal system?

They automatically become law without parliamentary action. Signup and view all the answers

What is the role of the Supreme Court in the context of the U.S. Constitution's Supremacy Clause?

To ensure treaties do not contradict the Constitution. Signup and view all the answers

Which method is used by Canada to implement treaties within its legislative framework?

Implementation through Parliament approval by legislative application. Signup and view all the answers

How does the recognition of treaties in domestic law differ between Canada and the UK?

The UK recognizes treaties as part of domestic law while Canada does not. Signup and view all the answers

Study Notes

Dualism and Monism

Dualism: Transposing national law incorporates meaning, wording, language, and negotiation records of a treaty as binding.
Monism: International law becomes binding upon ratification of the treaty.
Dualist state may have exceptions regarding the hierarchy of international law.
Monist: All international law is assigned a place in the domestic hierarchy.
Determining if a system is monist or dualist: Observe practice, legal and political tradition, judicial decisions, and political practice.

Comparative Constitutional Law: Examples of Monism and Dualism in Reality

Netherlands: Predominantly monist but exhibits dualist tendencies regarding conflicting treaty rules.
Germany: Clearly monist but requires law by parliament for ratification of treaties (dualist element).
Canada: Primarily dualist, legislative application through parliament needed to implement a treaty.
United States: Mixed approach but primarily dualist.
South Africa: Primarily dualist but uses a monist approach for human rights treaties.
International Criminal Court: Created by the Rome Statute, entered into force in 2002, 160 states are party to it, and the court has jurisdiction over the "core crimes" of genocide, crimes against humanity, war crimes, and crime of aggression.
International Criminal Court: The principle of complementarity means the court can act only if a state is unwilling or unable to prosecute.

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Description

Explore the intricate distinctions between dualism and monism in international law. This quiz examines various countries' approaches, such as the Netherlands, Germany, Canada, and the United States, and highlights how each system incorporates international treaties into domestic law. Test your understanding of these concepts through practical examples.