Domestic courts and their relationship with international law

Abstract

INTRODUCTION Chapter 8 above discussed at length the position of the ICJ in the fabric of international law. For all its importance, though, the role of the ICJ should not be over-estimated; in everyday life, much of the work of applying international law is done by domestic courts and administrative agencies. This presupposes that there are some rules, or at least some ideas, on how international law and domestic law relate to each other. This chapter will first address the two leading theories on the relationship between international and domestic law (monism and dualism), and will then discuss a number of issues that may arise when international law is to be applied by domestic courts. As we will see, states are not always keen on receiving international law into their domestic legal orders, and several judicial techniques have been developed to prevent domestic courts and agencies from having to apply international law. It is useful to mention at the outset that the topic of the relationship between international and domestic law is a source of much confusion, partly because the various terms used (directly effective rules, self-executing rules, directly applicable rules) are not very precise to begin with – and are not used with great precision either – and partly because there may be a lot at stake politically. A state which allows international law to be directly applied by its courts and administrative agencies is in a different position from a state which does not allow this. Such a state is sometimes seen to be creating a disadvantage for itself.