By providing a systematic analysis of how international law is incorporated and implemented in over two dozen states, this book analyzes how the international order and national legal systems interact with each other. It highlights the mutual influence of international and domestic legal systems and how changes in each are modifying the other.
This book is an updated version of the General Course on public international law given by the author in French at the Hague Academy of International Law in 1988. It provides an outline of the Law of Nations in a perspective that focuses on its application and development through domestic courts and other legal actors'. It is based on the idea that international law is no longer the exclusive province of diplomats but must evolve under the guidance of all State organs charged with applying the law.
The Fluid State was cited by the High Court in Momcilovic v The Queen [2011] HCA 34 (8 September 2011)Traditional accounts of the relationship between international and national law present the interaction between the two as relatively ordered, if conflicting. This limited view of the relationship has become outmoded, as the scope of international legal regulation and the internationalised context of domestic law continue to expand. This book analyses some of the national contexts in which international law and domestic law interact and identifies the way in which attitudes to international law shift between them. Some of the questions considered are:How do perceptions of international law differ according to particular institutional vantage-points, whether that of the executive, the legislature or the judiciary? What is the impact of the perceived 'democratic deficit' in international treaty-making? What are some of the ways in which the judiciary acts as a gatekeeper between the national and international legal orders? How does national politics influence engagement with the international sphere? The contributors bring a range of different perspectives: politics, law and international relations. They include influential scholars such as Mayo Moran, Ann Capling, John Uhr, Andrew Byrnes and Janet MacLean and they discuss contemporary issues, such as the Australia-US Free Trade Agreement and the 2003 Iraq War.
What are the theoretical and practical issues relating to the intersection between domestic and international law? This important new book discusses how general theories, including monism and dualism, transpire in practice. The author examines several key areas: the rules relating to treaty making and the ratification of treatises, the doctrine of automatic incorporation and transformation, the direct effect of international norms in the domestic system, and a discussion of the principle of consistent interpretation. With a focus on the European Convention on Human Rights, the author concludes that, although traditional theories are still relevant, they fall short in grasping the complexity of the different ways in which the legislator and the courts have given effect to international law on the domestic level. Students and scholars of international and domestic law will find this book to be useful in their studies. It will also be of interest to academics, judges, and practicing lawyers.
The Engagement of Domestic Courts with International Law advances and develops a new paradigm for describing, assessing, and understanding the role of domestic courts in the international legal order.
The Interpretation of International Law by Domestic Courts assesses the growing role of domestic courts in the interpretation of international law. It asks whether and if so to what extent domestic courts make use of the international rules of interpretation set forth in the Vienna Convention on the Law of Treaties. Given the expectation that rules of international law are to have a uniform interpretation and application throughout the world, the practice of domestic courts is considerably more diverse. The contributions to this book analyse three key questions: first, whether international law requires a coherent interpretive approach by domestic courts. Second, whether a common or convergent methodological outlook can be found in domestic court practice. Third, whether a common interpretive approach is desirable from a normative perspective. The book identfies a considerable tension between international law's ambition for universal and uniform application and a plurality of different approaches. This tension between unity and diversity is analysed by a group of leading international lawyers from a wide range of geographical, disciplinary and methodological approaches. Drawing on domestic practice of number of jurisdictions including, among others, Colombia, France, Japan, India, Israel, Mexico, South Africa, the United Kingdom and the United States, the book puts the interpretative practice of domestic courts in a wider context. Its chapters offer doctrinal, practical as well as theoretical perspectives on a central question for international law.
The Oxford ILDC online database, an online collection of domestic court decisions which apply international law, has been providing scholars with insights for many years. This ILDC Casebook is the perfect companion, introducing key court decisions with brief introductory and connecting texts. An ideal text for practitioners, judged, government officials, as well as for students on international law courses, the ILDC Casebook explains the theories and doctrines underlying the use by domestic courts of international law, and illustrates the key importance of domestic courts in the development of international law.
This Research Handbook examines the complex relationship between international law and domestic legal systems. An interdisciplinary range of experts analyse the topic from historical, conceptual, critical and doctrinal perspectives, setting the tone for future reflections on the development of the international legal order. Chapter authors critically discuss the evolution of core understandings of the relationship between international and domestic law, and how this has been affected by specific actors and contexts in a changing global order, particularly imperialism, decolonisation, the post-Cold War era, and more recent trends, such as geopolitical shifts and the rise of populism. They examine concepts such as monism, dualism and pluralism, as well as the legal techniques and doctrines employed to govern the relationship, including approaches to treaty making, constitutional protection and conventionality control. The Handbook ultimately champions fresh perspectives on interlinkages between the international and the domestic in a multipolar world. The Research Handbook on International Law and Domestic Legal Systems is a vital resource for students, scholars and practitioners of public international law, constitutional law, comparative law, and legal theory as well as readers with a background in international relations.
Beyond Human Rights, previously published in German and now available in English, is a historical and doctrinal study about the legal status of individuals in international law.
The more international law, taken as a global answer to global problems, intrudes into domestic legal systems, the more it takes on the role and function of domestic law. This raises a separation of powers question regarding law–making powers. This book considers that specific issue. In contrast to other studies on domestic courts applying international law, its constitutional orientation focuses on the presumptions concerning the distribution of state power. It collects and examines relevant decisions regarding treaties and customary international law from four leading legal systems, the US, the UK, France, and the Netherlands. Those decisions reveal that institutional and conceptual allegiances to constitutional structures render it difficult for courts to see their mandates and powers in terms other than exclusively national. Constitutionalism generates an inevitable dualism between international law and national law, one which cannot necessarily be overcome by express constitutional provisions accommodating international law. Valuable for academics and practitioners in the fields of international and constitutional law.
