Human Rights in Action: Monist vs. Dualist - A Tale of Two Levels

Human Rights in Action: Monist vs. Dualist — A Tale of Two Levels

IMAGINE LIVING IN A NEIGHBORHOOD WHERE EVERYONE AGREES TO FOLLOW RULES LIKE NO LOUD NOISE AFTER 10 PM, MAINTAINING TIDY YARDS, AND ENSURING EACH OTHER’S SAFETY. NOW, IMAGINE THAT EACH HOUSEHOLD CAN DECIDE HOW TO FOLLOW THESE RULES. SOME MIGHT HIRE GARDENERS, OTHERS MIGHT JUST MOW THE LAWN THEMSELVES. SOME MIGHT INSTALL SECURITY SYSTEMS, WHILE OTHERS RELY ON COMMUNITY WATCH. THIS IS A BIT LIKE HOW COUNTRIES APPROACH HUMAN RIGHTS: THE RULES ARE THERE, BUT EACH COUNTRY DECIDES HOW TO IMPLEMENT THEM.

One of the United Nations’ big goals is to promote and protect human rights. To make this happen, we need support from everyone to help protect, respect, and fulfill these rights. Usually, international human rights laws don’t tell countries exactly how to meet their obligations. Countries just need to do what they promised, and they have a lot of freedom in how they do it. However, this flexible approach often doesn’t work well today because human rights obligations are so broad and complex.

Through my studies, I discovered two main approaches to implementing human rights: domestically and internationally. Let’s explore these methods in more detail.

Domestic Implementation

Implementing human rights laws within a country is tricky. It often depends on political, economic, cultural, and social factors. A country needs to incorporate international human rights laws into its own legal system, but not all countries do this. This issue caught my attention during a class discussion. I realized that international treaties don’t dictate how countries should apply human rights standards; it’s up to each country to decide. This means that everything in international human rights law relies on the consent of individual states.

While this sounds reasonable, it complicates things, especially for countries with a dualist legal system (I highly suggest to read International Law by Malcolm Shaw for more deeper understanding on dualist legal system, but I will give a brief explanation bellow about it).

In dualist legal system, international law and domestic law are considered separate entities. For international law to have effect within a country, it must be explicitly adopted through domestic legislation. This approach allows countries to maintain control over which international laws are incorporated into their legal systems.

In contrast, a monist legal system treats international and domestic laws as part of a single legal framework. International law is automatically incorporated and can be directly applied within the country without the need for specific domestic legislation. This approach ensures that international legal obligations are immediately enforceable at the national level

Countries with dualist systems have more freedom to consider whether international laws conflict with their national laws. This can prevent misunderstandings but makes it harder for international laws to intervene if a country hasn’t adopted these laws domestically.

There are pros and cons to how countries implement international human rights laws. Countries with dualist laws have the advantage of ensuring no conflicts between international and national laws. However, if a country hasn’t adopted international laws, it’s harder to address human rights violations as international issues. On the other hand, fully incorporating international standards into national laws makes it easier for courts to apply them. But this can be challenging if the country’s customs clash with international laws.

Governments face significant trade-offs when implementing human rights, such as resource limitations and political costs, often leading to prioritization of certain rights over others.

International Implementation

On the international level, human rights implementation involves various global institutions and treaties. Organizations like the United Nations play a crucial role in setting standards and monitoring compliance. International treaties, such as the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR), create frameworks that countries agree to follow.

However, the challenge lies in the enforcement. International bodies can monitor and report on human rights violations, but their ability to enforce compliance is often limited. For instance, the UN Human Rights Council reviews countries’ human rights records through mechanisms like the Universal Periodic Review. While these reviews can pressure countries to improve, actual enforcement often depends on the willingness of individual states to act.

One key aspect of international implementation is the role of international courts, like the International Criminal Court (ICC), which can prosecute individuals for human rights violations. Yet, the effectiveness of these courts is often constrained by political considerations and the need for state cooperation.

Cooperation is Key

Implementing international human rights laws clearly requires cooperation and engagement from various levels and actors. I believe states are the primary actors in human rights due to their significant obligations to promote and respect these rights. But other actors are also crucial. After World War II, the Universal Declaration of Human Rights marked a shift where individuals began to have rights and duties under international law.

Today, non-state actors and individuals play huge roles too. NGOs, for example, actively enhance the implementation of human rights standards and push for better protection worldwide. Human rights defenders, often working alongside NGOs, are vital in promoting and protecting rights despite tough circumstances.

The Challenge and the Hope

After all, applying international human rights law is no easy task. It involves a complex web of legislation aimed at promoting rights both internationally and domestically. When high moral goals meet limited resources, and international agreements meet local policies, challenges arise.

In conclusion, while the implementation of international human rights laws is complex, cooperation among states, NGOs, and individuals can significantly enhance their effectiveness. By working together, we can overcome challenges and promote human rights worldwide.

Bibliography

Secondary Sources

Articles

Alberto Q, ‘Priorities and Human Rights’ (2018) 23(4) THE INTERNATIONAL JOURNAL OF HUMAN RIGHTS.

Oona A, ‘Do Human Rights Treaties Make a Difference?’ (2002) 111(8) THE YALE LAW JOURNAL COMPANY INC.

Vibhav G, ‘THE ROLE OF NGOs IN THE ENFORCEMENT OF HUMAN RIGHTS: An Overview’ (2010) 71(3) INDIAN POLITICAL SCIENCE ASSOCIATION.

Wilfred M, ‘Monism or Dualism: The Dilemma in The Application of International Agreements Under the South African Constitution’ (2019) 3(1) JOURNAL OF CMSD.

Other Sources

United Nations, ‘Protect Human Rights’ < https://www.un.org/en/our-work/protect-human-rights>

United Nations Human Rights Office on the High Commissioner, ‘International Human Rights’ < https://www.ohchr.org/en/instruments-and-mechanisms/international-human-rights-law>