II. Domestic Interaction with International Law

Books

Björgvinsson, The Intersection of International Law and Domestic Law (2016) [available online with subscription]

  • Investigates the theoretical and practical issues relating to the intersection between domestic and international law. Discusses theories of monism and dualism, the rules relating to treaty making and their ratification, the doctrine of automatic incorporation and transformation, the direct effect of international norms in the domestic system, and the principle of consistent interpretation.

Crawford, Part I Preliminary Topics, 3. The Relations of International and National Law, in Brownlie’s Principles of Public International Law (8th Ed., Oxford Public International Law, 2012) [unavailable online without purchase]

  • Succinct overview of the relationship of international and national law and the issues that arise at that nexus.

Ferdinandusse, Direct Application of International Criminal Law in National Courts (2006) [unavailable online without purchase]

  • The author examines the concept of the direct application of international criminal law in national courts. He provides a description of the relevant practice in different states ranging from Argentina to Senegal and their prosecution of crimes like genocide, crimes against humanity, and war crimes.

Killander & Adjolohoun, International law and domestic human rights litigation in Africa (2010)  [available for free online]

  • This book challenges the traditional monist-dualist dichotomy by exploring international human rights practice in African domestic courts. Examines how domestic courts in Africa have used international human rights law to interpret and fill gaps in national laws.

Nijman & Nollkaemper, New Perspectives on the Divide Between National and International Law (2007) [available online with subscription]

  • This book contributes to the understanding of one of the most pressing issues of modern international law: the relationship between the international legal order and the domestic legal orders of sovereign states. Chapters cover topics such as: domestic implementation of international law, monism/dualism, the globalization of state constitutions, and the emerging universal legal system.

Novakovic, Basics Concepts of public International Law: Monism and Dualism (2013) [unavailable online without purchase]

  • Articles written by fifty-five authors from thirty-two countries on monism and dualism in various countries and contexts.

 

Articles

Borchard, Relation Between International Law and Municipal Law, VA Law Review (1940) [available for free online]

Ginsburg, Locking in Democracy: Constitutions Commitment and IL, NYU Journal of IL (2006) [available for free online]

  • This article looks at the effects of international law on domestic governance as well as the effects of domestic institutions on international cooperation by treating international commitment as a function of domestic constitutional design. It finds that new democracies tend to be more open to customary international law and to provide for treaty-making structures that build on the logic of precommitment. 

Klein, A Theory for the Application of the Customary International Law of Human Rights by Domestic Courts, Yale Journal of IL (1998) [available for free online]

  • This Comment emphasizes the common law nature of international legal principles, and distinguishes them from positive rules articulated in treaties. It argues that these principles derive their self-executing character from the universal recognition of the rights they articulate, and not merely from domestic statutes purporting to execute them.

Nollkaemper, Internationally Wrongful Acts in Domestic Courts, A. J. Int’l L. (2007) [available for free online]

  • Principles of international responsibility provide guidance to the consequences that domestic courts should attach to a finding that the forum state has acted or is about to act in breach of its international obligations, for instance in cases such as Sanchez-Llamas and Medellin. This article explores the situations in which principles of international responsibility indeed may be relevant to domestic courts and discusses the normative foundation of their application at the domestic level. It also explains how domestic courts can contribute to the implementation of international responsibility.

Nollkaemper, The Duality of Direct Effect of International Law, Euro J. Int’l L. (2014) [available for free online]

  • This article assesses how, fifty years after the European Court of Justice delivered its judgment in Van Gend en Loos (VGL), the doctrine of direct effect of international law has fared outside the European Union.

Roht-Arriaza, Just a ‘Bubble’? Perspectives on the Enforcement of ICL by National Courts (2013) [available for free online]

  • This article examines the forward movement and the backlash of the enforcement of international criminal law by national courts, drawing in particular on the Latin American and the Spanish examples. It concludes by arguing that the hangover after the euphoria should be used to correct the sky-high expectations and to (re)determine the relationship between international and national and among different national jurisdictions.

Sloss & Van Alstine, International Law in Domestic Courts (2015) [available for free online]

  • Analyzes the role of domestic courts in the creation, interpretation, recognition, implementation, and modification of international norms in domestic courts. Recognizing that beyond “stages of governance,” a decisive factor in explaining the engagement of domestic courts with international law is the nature of the legal rule at issue.

Waters, Creeping Monism, Columbia Law Review (2007) [available for free online]

  • This Article offers a narrow lens analysis of a key debate over the role of foreign authority in U.S. courts: the use of international human rights treaties in interpreting domestic law. Drawing on a six-year study of judicial treatment of the International Covenant on Civil and Political Rights by the U.S. Supreme Court and four other common law jurisdictions, the Article develops a typology of interpretive incorporation techniques that courts are utilizing. It also provides statistical evidence regarding the use of human rights treaties across jurisdictions. Finally, it maps out a possible normative framework for evaluating courts’ use of human rights treaties in interpreting domestic law.

Wildhaber, Relationship btwn CIL and Municipal law in Western. Euro Countries, Max-Planck (1988) [available for free online]

  • This article concentrates on an examination of civil law jurisdictions, that make reference to public international law in their constitutions as being an integral part of its laws, and whether they indeed give priority to general international law requirements, even when faced with statutes-and decrees that appear clearly to violate them.

 

Cases

Deschnes Commission (Canada), Commission of Inquiry on War Criminals (1986) [available for free online]

  • Discussion of the direct application of customary international law, finding that customary international law is adopted lato sensu into Canadian law and can form the basis of criminal prosecution in Canada when there is no domestic law to the contrary.