WHY SO DUALIST? : CRITICAL VIEW ON THE STATUS AND EFFECT OF TREATIES IN THE LEGAL SYSTEM OF THE UNITED STATES

Abstract

This article aims at discussing an issue of proper “categorization” of the United States in regard to the status and effect of international treaties in the national legal realm. It is a question that does not have only theoretical value and purpose, but rather a possible significant practical impact especially in light of recent developments such as Roper v. Simmons, named by some authors as creeping monism. However, here it is argued that the reasoning in this case is just a continuation and acceptance by the Supreme Court of what is stipulated in the Constitution and proper understanding of specific provisions and the international treaty law. It is the analysis of the theoretical framework of the relationship between national and international law that is at the core and through which the author tries to show that the United States is more of a monistic country than dualist. The argumentation is presented in three parts. Part I presents the monistic and dualist theories through a comparative analysis. Part II focuses on the textualist aspect by going into the relevant constitutional provisions. Part III discuses the judicial interpretation of these provisions and the new phenomenon of “creeping monism”.