Passage Based Question on Monist and Dualist State | Legal Reasoning for CLAT PDF Download

Passage

There are two principal theories on the relationship between international law and domestic law- Monism and Dualism. The monistic theory maintains that the subjects of two systems of law, i.e., international law and municipal law are essentially one. The monistic theory asserts that international law and municipal law are fundamentally the same in nature, and arise from the same science of law, and are manifestations of a single conception of law.

The followers of this theory view international law and municipal law as part of a universal body of legal rules binding all human beings, collectively or singly. In a monist system, international law does not need to be incorporated into domestic law because international law immediately becomes incorporated in domestic legal system upon ratification of an international treaty. According to this theory, domestic law is subordinate to international law.

The Statute of the International Criminal Court, therefore, can be directly applied and adjudicated in national courts according to the monistic theory. According to dualism theory, international law and municipal law represent two entirely distinct legal systems, i.e., international has an intrinsically different character from that of municipal law. International law is not directly applicable in the domestic system under dualism.

First, international law must be translated into State legislation before the domestic courts can apply it. For example, under dualism, ratification of the Statute of the International Criminal Court is not enough-it must be implemented through State legislation into the domestic system. Most states and courts presumptively view national and international legal systems as discrete entities and routinely discuss in dualist fashion incorporation of rules from one system to the other.

Q1: Which of the following statements is incorrect? 
(a) According to monism, the nature of domestic law and international law is the same, and domestic law is subordinate to international law.
(b) According to monism, ratified international conventions automatically become a part of domestic law, and domestic law is subordinate to international law.
(c) According to dualism, ratified international conventions automatically become a part of domestic law, and domestic law is subordinate to international law.
(d) According to dualism, the nature of domestic law and international law is different, and domestic law is not subordinate to international law.
Ans: (c)

Q2: 'X' is a developing country. 'X' ratified the United Nations Framework Convention on Climate Change in 1995, and incorporated the provisions of the said convention in its domestic legislation addressing climate change in 1996. However, 'X' has been widely criticized in the international community for its failure in meeting the obligations under the said convention. 'Y' is a developed country. 'Y' ratified the United Nations Framework Convention on Climate Change in 1995 and has not incorporated the provisions of the said convention in its domestic legislation till date. 'Y' has been appreciated by the international community for its success in meeting the obligations under the said convention. In the given situation, which of the following statements is correct? 
(a) 'X' is a monist State and 'Y' is a dualist State.
(b) 'X' is a dualist State and 'Y' is a monist State.
(c) 'X' and 'Y' are both monist States.
(d) 'X' and 'Y' are both dualist States.
Ans: (b)

Q3: The country 'X' has ratified an International Convention that requires each State Party to enact laws defining and punishing bribery, i.e., the act of offering bribes to Government officials. The Convention has neither defined bribery, nor prescribed a punishment for the same, so that each State Party may define the offense of bribery differently in their respective domestic legislations. By 2022, 'X' has not enacted any law defining and punishing the offense of bribery. In November 2021, Mr. A was being prosecuted by a domestic criminal court in 'X' for allegedly offering a bribe to a Government official. In the given situation, which of the following statements is correct? 
(a) If 'X' is a monist State, Mr. A can be punished for committing an offense under the Convention.
(b) If 'X' is a dualist State, Mr. A can be punished for committing an offense under the Convention.
(c) If 'X' is a dualist State, Mr. A cannot be punished for committing an offense under the Convention.
(d) Mr. A cannot be punished for committing an offense under the Convention irrespective of whether 'X' is a monist or a dualist State.
Ans: (d)

Q4: 'D', a dualist State, has signed and ratified the Agreement on Trade-related Aspects of Intellectual Property Rights (TRIPS Agreement), an international agreement administered by the World Trade Organization (WTO). If 'D' is compelled to fulfill its international obligations under the TRIPS Agreement, which of the following statements is correct? 
(a) 'D' may adopt the provisions of the TRIPS Agreement without enacting a new domestic legislation or amending an existing legislation.
(b) 'D' may not incorporate the provisions of the TRIPS Agreement into a new domestic legislation.
(c) 'D' must incorporate the provisions of the TRIPS Agreement into an existing domestic legislation or in a new domestic legislation.
(d) 'D' may not incorporate the provisions of the TRIPS Agreement into an existing domestic legislation.
Ans: (c)

Q5: In light of the given passage, which of the following statements is correct?
(a) Monism and Dualism are similar approaches to adopt international law into domestic law.
(b) Dualism postulates the homogeneousness of domestic law and international law.
(c) Monism and Dualism are different approaches to understand how domestic law impacts international law.
(d) Monism postulates the homogeneousness of international law and domestic law.
Ans: (d)