Among the most important powers sovereign states have is the authority to establish treaties with other states. A treaty is essentially a contract between sovereign states, and as such states are obliged to confirm to the treaties they have agreed upon, or in Latin pacta sunt servanda. Though states are bound by their treaties, the legal effect of treaties on the citizens of a state is much less clear.
There are basically two systems of how treaties interact with national law: monism and dualism. In countries which use a monist system, treaties become part of domestic law immediately after a treaty has been ratified by that state, this is called direct effect. On the other hand in dualist countries, a treaty has to be translated into domestic law before it can be invoked by or used against citizens.
States have the freedom to choose which system they will use, and usually this is determined by the national constitution. The question which now arises, is whether Space Settlements should choose either monism or dualism. In this post we will argue in favour of dualism.
In many nominally democratic countries which use the monist system, governments repeatedly use treaties to circumvent domestic democratic procedures. This because international treaties prevail above domestic laws, and because negotiating treaties is usually a prerogative of the executive and hence the legislature can only vote for or against the ratification of the resultant treaty. It’s quite clear that this leaves room for abuse.
Too often governments include clauses in treaties, of which they later claim were “forced” to accept such clauses. Given the secrecy in which such negotiations take place, it’s often impossible for legislatures and citizens impossible to check such claims. This creates opportunity for governments to push unpopular measures.
Though dualist countries could use the same strategy, but it would less effective since treaties in these countries cannot be enforced in courts unless translated into domestic law. Further the translation process has to follow ordinary legislative procedures, gives a greater role for legislatures, courts and citizens. Consequently governments are less able to use treaties as scapegoats.
A second benefit of dualism is that enhances the negotiating position of the nation’s government. When other governments propose an unfavorable clause, the government can simply state that such clause would not make it into domestic law. The other governments would not be likely to face such a failure, and are most likely to either drop the clause altogether or to soften it.
In line with our preference for a generally non-interventionist foreign policy, we recommend that Space Settlements should be reserved to make treaties in the first place, and to strengthen their independence they should implement a dualist system.