International Judicial Monitor
Published by the International Judicial Academy, Washington, D.C., with assistance from the
American Society of International Law

Spring 2012 Issue

In Review:
New Publications on International and Comparative Law


International Law and Domestic Legal Systems: Incorporation, Transformation, and Persuasion
By Dinah Shelton
Oxford University Press. 2012

International Law and Domestic Legal Systems: Incorporation, Transformation, and PersuasionReviewed By: David P. Stewart, Visiting Professor of Law, Georgetown University Law Center; Counselor to the International Judicial Academy; Member, Inter-American Juridical Committee

The emergence of new international courts and tribunals constitutes one of the most significant changes in the international system over the past several decades.  For most international lawyers, however, two other developments have had an even greater impact in the years since World War II – namely, the proliferation of international and regional organizations and the exponential growth in the number of multilateral treaties and agreements.  Taken all together, these evolutionary steps have profoundly altered the scope and nature of the international legal system.   To put it succinctly, the substance and detail of international legal rules and principles today are vastly richer and more complicated than even a quarter century ago. 

Assessing the ability of states and other actors to comply with these rules and principles at the international level occupies much of the legal academy.   By comparison, little attention is typically given to the increasingly important question of how domestic legal systems go about incorporating (or “domesticating”) international law.   But for judges and practitioners alike, that question may have the greatest practical relevance.  In such areas as human rights, criminal law, environmental and private international law, to name just a few, the articulation of international norms will have only limited effect unless and until those norms permeate into and are given effect by the domestic law of individual states.  

For that reason, Prof. Dinah Shelton’s new work is of special significance and utility. It contains a systematic analysis of how international law is “received” and given effect in the domestic legal regimes of 27 countries.  The volume had its origins in the 2010 quadrennial meeting of the International Academy of Comparative Law, for which rapporteurs generated a series of country reports (according to a standardized template) detailing how their respective domestic systems give effect to treaties and customary international law (and jus cogens).  The drafts were then revised and supplemented, and they now appear in this volume.  Because the method of incorporation is a matter of domestic law (in the sense that international law does not dictate or specify how a given State must give effect to its international legal obligations), the country-by-county comparative approach is not only appropriate but also practical.  

The survey describes a variety of different approaches taken by an assortment of common and civil law systems, including those of the United States, the United Kingdom, France, Germany, China, Japan, and Russia.  Inevitably, however, the sampling has its limitations: most of the others are either European or in the Commonwealth tradition.  Only Venezuela represents Central and South America; from South Asia, only Bangladesh; and with the exception of Israel, none from the Middle East.  South Africa, Uganda and Nigeria represent Africa.  The authors of the various reports are largely from the various national academic communities, specializing in comparative and public international law, although some have significant practical experience.

The reports generally describe the constitutional structures of their respective legal systems, including the “treaty making” power, the process for adherence to treaties, and the legal status accorded to treaties as well as customary international law (i.e., the question of the hierarchy of legal norms).   They also discuss the weight (if any) accorded to other sources of international law such as the declarations, resolutions and recommendations of international institutions, and the effect given to decisions of international courts and tribunals.  Some attention is given to the indirect application of international law (for example, in the context of interpreting statutory or even constitutional provisions).

Most reports address the domestic rules governing the invocation and enforcement of treaty provisions in litigation (e.g., questions of “standing” and whether a “private right of action” exists) as well as relevant jurisdictional rules (for example, those governing “universal jurisdiction” in civil or criminal matters involving international law).  American lawyers may find especially interesting the attention given to the place of international law in various federal systems (such as Austria, Canada, Germany, Netherlands, Nigeria and Russia).

Unsurprisingly, the surveys reveal some common ground as well as some marked differences in domestic approaches to international law.  With respect to treaties, for example, some states require legislative approval for all treaties prior to ratification; these states are more likely to accord full domestic legal effect to those treaties once they have been ratified.  In Serbia, for example, all treaties are deemed self-executing once “ratified” by the Parliament.  By distinction, others (mostly those following the British tradition) do not require pre-ratification legislative approval but then typically do not give automatic effect to ratified treaties, insisting instead on post-ratification incorporation by legislation.      

Many countries (especially those in the civil law tradition) tend to place international treaties at the constitutional level.  Some accord treaties supremacy over ordinary legislation, while others equate treaties and statutes, as the United States does.  A few appear to give special status to certain kinds of treaties (for example, human rights treaties in Argentina); in Serbia, it seems, all human rights treaties are self-executing or directly applicable.

A similar diversity of approach exists with respect to customary international law (which is more commonly referred to in continental systems as “general principles and norms of international law,” a term with arguably broader reach).  Thus, in some, it said to form part of the domestic legal order.  The Constitution of the Russian Federation, for example, provides that universally-recognized principles and norms of international law shall be a component of its legal system and shall prevail over any inconsistent provision of law.  In Italy, the Constitution states clearly that “the Italian legal system conforms to the generally recognized rules of international law;” evidently, such rules have the force of constitutional law and any domestic law in conflict violates the Constitution.   To the same effect, Article 25 of the German Constitution provides that the “general rules” of public international law “take precedence over statutes and directly create rights and duties for the inhabitants of the federal territory.”  In other systems, however (in particular those derived from the British model), customary international law is treated as common law, as least to the extent that it does not conflict with enacted legislation.

So-called jus cogens norms are explicitly recognized in some countries (e.g. Hungary, Argentina) as having priority over domestic law.  A number of national legal systems (especially those in continental Europe) permit judicial acceptance and application of non-binding texts such as the recommendations and declarations of international organizations and the decisions of international courts, inter alia for the purpose of interpreting domestic law.

These similarities and divergences are discussed in Prof. Shelton’s wonderful introductory chapter, which usefully endeavors to provide a cohesive overview and offers a number of interesting and valuable insights.  With respect to the traditional “monist-dualist” dichotomy, she writes, it is in fact “rare to find a system that is entirely one or the other.”  (p.3-4). In general, she notes, older constitutions -- especially those which antedate the creation of international organizations and multilateral (or law-making) treaties – seem to make few references to international law.  Countries that have relatively recently been liberated from dictatorships or foreign occupation are decidedly more likely to give effect to internationally articulated rules on human rights and democratic governance.  Countries spared such experiences in the recent past (like France and the United States) “appear less likely to adhere to international agreements or to incorporate and apply international law in judicial decisions.”  (p. 2) 

In the United States, of course, the status of international law in the domestic legal order continues to be a matter of considerable debate and doctrinal confusion.  The implications of that debate are summarized in a superb chapter by Prof. Paul Dubinsky.  Noting that “ambivalence about international law and international institutions can be found in all corners of American society,” (p. 631), he describes in some detail the uncertain place of  international law within the U.S. legal system, especially in the eyes of the Supreme Court, from the effect of ICJ decisions (Sanchez-Llamas v. Oregon, 548 U.S. 331 (2006) to the status of treaties (Medellin v. Texas, 552 U.S. 491 (2008), to the interpretation of treaties (Abbott v. Abbott, 130 S.Ct. 1983 (2010), and of course to reception of customary international law through the Alien Tort Statute (Sosa v. Alvarez-Machain, 542 U.S. 692 (2004).  Even the venerable Charming Betsy principle, under which U.S. statutes are construed to be consistent with international law, has recently come under criticism in the courts as well as the academy.  Altogether, Prof. Dubinsky notes, there is ample evidence of a recent “shift toward greater dualism” (p. 654) in U.S. law, suggesting that “future U.S. practice … will be noticeably different from the past.”  (p. 655).  For various reasons, not least the impending Supreme Court decision in the Kiobel litigation, there is reason for the legal community to pay careful attention to what Dubinsky describes as the “current state of flux with regard to” customary international law. (p. 655).

This volume can be an invaluable reference for international practitioners and deserves a place in the professional library.  It is a welcome addition to the growing literature on the subject of “international law in domestic courts.”   

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© 2012 – The International Judicial Academy
with assistance from the American Society of International Law.

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