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Dualist VS Monist

There are two views on the relationship between international law and domestic law: monism and dualism. Monists believe international law is automatically incorporated into domestic law and supreme over it. Dualists view them as distinct, with domestic law determining how and when international law applies locally. The Philippines follows the doctrine of incorporation, meaning international law becomes domestic law without legislation. It also follows the doctrine of transformation for treaties, where Senate approval is needed to transform international treaty principles into domestic law.

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Gamy Glazyle
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128 views1 page

Dualist VS Monist

There are two views on the relationship between international law and domestic law: monism and dualism. Monists believe international law is automatically incorporated into domestic law and supreme over it. Dualists view them as distinct, with domestic law determining how and when international law applies locally. The Philippines follows the doctrine of incorporation, meaning international law becomes domestic law without legislation. It also follows the doctrine of transformation for treaties, where Senate approval is needed to transform international treaty principles into domestic law.

Uploaded by

Gamy Glazyle
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Download as DOCX, PDF, TXT or read online on Scribd
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DUALIST VS MONIST

Monists believe that international law and domestic law are part of a single legal order;
international law is automatically incorporated into each nation's legal system and that
international law is supreme over domestic law. Monism requires that domestic courts
"give effect to international law, notwithstanding inconsistent domestic law, even
constitutional law of a constitutional character."
Dualists, however, contend that international law and domestic law are distinct, each
nation ascertaining for itself when and to what extent international law is incorporated
into its legal system, and that the status of international law in the domestic system is
determined by domestic law. Under this view, "when municipal law provides that
international law applies in whole or in part within our jurisdiction, it is but an exercise of
the authority of municipal law, an adoption or transformation of the rules of international
law.
THE DOCTRINE OF INCORPORATION
T h e doctrine of incorporation means that the rules of international law for part of
the law of the land and no legislative action is required to make them applicable to a
country. The Philippines follows his doctrine, because Section 2, Article II of the
Constitution states that the Philippines adopt the generally accepted principles of
international law as part of the law of the land.
THE DOCTRINE OF TRANSFORMATION
The doctrine of transformation on the other hand requires that an international law
principle be transformed into domestic law through a constitutional mechanism, such
as local legislation. (Pharmaceutical and Health Care Association of the Philippines
v. Duque, G.R. No. 173034, October 9, 2007). The transformation theory is applied
in the Philippines through treaty-making power of the President. Through this
power, rules and principles embodied in a treaty in force would be transformed
into Philippine Law and shall become valid and effective upon the concurrence
of 2/3 of all members of the Senate.

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