The Relations Between International Law and Domestic Courts

Abstract

The interpretation that domestic judges from different jurisdictions have given to international treaties has produced a profuse scholarly debate on the role of domestic courts regarding international law. This debate has generated two main currents. The first and generally accepted current promotes that domestic courts should enforce international rules in domestic litigation, which this study identifies as one of the traditional perspectives of international legal scholarship, or “traditionalism”. The second and less accepted current advocates that domestic courts should refrain from enforcing international rules in domestic litigation, called the rational choice theory approach. Commentary has proposed that it would be not accurate to promote uniform enforceability of all international treaties, as well as the effect of all international treaties at the domestic legal orders. Some international treaties should be enforced by domestic courts, while some others should not. The core question that emerges is: what should be the proper role of domestic courts in relation to international trade law? By expounding the theoretical framework that supports this comparative study on Brazilian and European Union courts’ decisions, Chapter 2 presents this book’s argument that the international trade agreements should not be enforced by domestic courts due to the function and objective of such agreements, as well as the principle of popular sovereignty and democratic self-government in choosing how international trade obligations are discharged domestically.