Basic Forms of International Law and Monist, Dualist, and Realist Perspectives
Basic Concepts of Public International Law – Monism & Dualism 244-265 (Marko Novakovic ed., Belgrade 2013)
44 Pages Posted: 16 Jul 2013 Last revised: 27 Jul 2013
Date Written: July 12, 2013
This chapter identifies the two basic forms of international law and their ultimate support in general patterns of human expectation and behavior. It also identifies certain extreme forms of Monism and Dualism and demonstrates why these and rigid state-oriented positivism are incapable of allowing adequate perception and understanding of the international legal process and its interconnections with regional and domestic legal processes. In contrast, Realism compels awareness of the actual processes of customary international law and international agreements; the roles of formal and informal actors; the complex nature, sources, evidences, and meaning of such law; the reality of private duties and rights under international law; and the reality of private participation in various sanction processes in response to violations of international law. Also addressed are certain forms of domestic incorporation of international law, including direct incorporation, mirrored incorporation and incorporation by reference in legislation, and indirect incorporation as an aid for interpretation of other laws.
Keywords: actors, constitution, customary international law, domestic incorporation, dualism, expectation, human right, indirect incorporation, international law, interpretation, jurisprudence, jus cogens, meaning, monism, nation, nonstate actors, opinio juris, private duties, realism, sanction, treaty
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