Domestic Application of International Law

Focusing on Direct Applicability

Series: 

Author:
Yuji Iwasawa
This book analyses the domestic application of international law, with a particular focus on the concept of direct applicability. It critically examines the relevant doctrine and practice and proposes a new analytical framework. It argues that international law is presumed to be directly applicable, that the criteria for direct applicability are grounds to exclude rather than establish direct applicability, and that the positive intent of the parties should not be a criterion. It contends that direct applicability is a question of domestic law and that domestic legal force is a prerequisite for direct applicability. It also advocates a relative approach.
Copyright Year:
2022
E-Book (PDF)
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Published
ISBN:
978-90-04-52340-1
Publication:
24 Oct 2022
Hardback
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Published
ISBN:
978-90-04-50986-3
Publication:
03 Nov 2022
Cover Domestic Application of International Law

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Yuji IWASAWA, Judge, International Court of Justice. Formerly Chairperson, Human Rights Committee (ICCPR) and Professor of International Law, University of Tokyo. S.J.D (Virginia), LL.M. (Harvard), LL.B. (Tokyo). His publications include International Law, Human Rights, and Japanese Law (Oxford, 1998).
Preface

Abbreviations

Table of Cases

1 Introduction
 A Increasing Importance of the Domestic Application of International Law

 B Incorporation of International Law

 C Different Sources of the Concept of Direct Applicability


2 Concept of Direct Applicability: The International Approach
 A Advisory Opinion of the Permanent Court of International Justice on Jurisdiction of the Courts of Danzig

 B The International Approach
 1 The International Covenant on Civil and Political Rights

 2 The International Covenant on Economic, Social and Cultural Rights

 3 The European Convention on Human Rights

 4 The American Convention on Human Rights

 5 The Genocide Convention

 6 The European Social Charter

 7 The ilo Conventions

 8 The Paris Convention for the Protection of Industrial Property


 C Problems of the International Approach


3 The Doctrine of Self-Executing Treaties in the United States
 A Concept
 1 Directly Applicable and Executed without Legislation

 2 Direct Applicability and Domestic Legal Force of International Law
 (a) Distinguishing Direct Applicability and Domestic Legal Force

 (b) Relationship between Direct Applicability and Domestic Legal Force


 3 Creation of Individual Rights


 B Question of Domestic Law

 C Criteria
 1 Subjective Criteria
 (a) Intent of the Parties

 (b) Executive Intent

 (c) Legislative Intent

 (d) Declarations


 2 Objective Criteria
 (a) Precision

 (b) Subject Matter

 (c) Legal Obligations

 (d) Political Treaties

 (e) International Procedures for Enforcement

 (f) Formal Addressee

 (g) Language of Contract


 D Relative Approach


4 Direct Effect of European Union Law
 A Concept
 1 Origin of the Concept

 2 Direct Effect and Direct Applicability

 3 Creation of Individual Rights


 B Question of EU Law

 C Criteria
 1 Spirit, General Scheme, and Wording

 2 Precision

 3 Absence of Discretion

 4 Unconditionality

 5 Other Criteria
 (a) Provisions Calling for Implementation

 (b) Formal Addressee

 (c) International Procedures for Enforcement

 (d) Legal Obligations


 D Regulations, Decisions, Directives, and International Agreements
 1 Regulations, Decisions, and Directives

 2 International Agreements


 E Relative Approach
 1 Contextual Determination of Direct Applicability

 2 The Review of Legality of Member States’ Administrative or Legislative Actions

 3 Exclusion Effect and Substitution Effect

 4 Exclusion Effect and Direct Effect

 5 Primacy and Direct Effect

 6 Other Effects


 F Direct Applicability in EU Law and International Law


5 Domestic Application of International Law: A Framework of Analysis
 A Concept of Direct Applicability of International Law
 1 Confusion of Concept

 2 Direct Applicability and Domestic Legal Force of International Law
 (a) Distinguishing Direct Applicability from Domestic Legal Force

 (b) Relationship between Direct Applicability and Domestic Legal Force


 3 Creation of Individual Rights

 4 Distinguishing Directly Applicable International Law from Law-Making Treaties


 B Question of Domestic Law

 C Criteria of the Direct Applicability of International Law
 1 Subjective Criteria
 (a) Intent of the Parties

 (b) Intent of the Executive and the Legislature


 2 Objective Criteria
 (a) Precision

 (b) Subject Matter

 (c) Legal Obligations

 (d) Political Treaties

 (e) International Procedures for Enforcement

 (f) Reciprocity

 (g) Formal Addressee


 D Relative Approach
 1 Contextual Determination of Direct Applicability

 2 Positive Application and Negative Application of International Law

 3 Exclusion Effect

 4 Standstill Effect

 5 Review of the Legality of National Measures

 6 Other Effects

 7 Advantages of the Relative Approach


6 Customary International Law and Acts of International Organizations
 A Direct Applicability of Customary International Law

 B Direct Applicability of Acts of International Organizations
 1 Domestic Legal Force

 2 Direct Applicability

 3 Other Effects


7 Judgments of International Courts
 1 Domestic Enforcement of International Decisions
 (a) International Arbitral Awards

 (b) European Court of Justice

 (c) European Court of Human Rights

 (d) International Court of Justice

 (e) World Trade Organization


 2 Direct Enforceability

 3 Acts of International Supervisory Bodies
 (a) International Labour Organization

 (b) United Nations Human Rights Treaty Bodies


 4 Effects Other than Direct Enforceability

 5 Authentic Interpretation and Authoritative Interpretation


Conclusion

Bibliography

Index

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