Les critères de l’applicabilité directe des traités internationaux aux États-Unis et en France

Abstract

The direct applicability of the treaties rests, in France as in the United States, on two principal criteria which are analyzed by the judges. The treaty must be self-executing and create a individual enforceable right. Therefore, direct applicability runs up sometimes against the (contestable) requirement of a private right of action, that one has great difficulty to identify in the treaty itself. If the criteria are similar, the methods of interpretation of the French and American judges diverge. Direct applicability is thus better aknowleged in France than in the United States, where the judges show an unquestionable legal nationalism by setting up each criterion as an obstacle impossible to circumvent to their invocability.