International jurists have long recognized the importance of the relationship between international law and national legal systems. This chapter is based on a new dataset covering 101 countries for the period 1815-2013 and capturing the specific characteristics of national approaches to international law, including treaty procedures, the status of treaties in national law and the reception of customary international law. The chapter notes that national legal systems tend to give treaties direct effect and hierarchical superiority over national law, while progressively expanding the categories of treaties whose ratification requires the prior consent of the legislator. With regard to the ILC, the chapter notes that the vast majority of national legal systems now recognize customary law as directly applicable, at least in principle, but generally consider it hierarchically inferior to national law. The chapter examines the implications of these findings for comparative international law. 55 Roberts, Anthea, Traditional and Modern Approaches to Customary International Law: A Reconciliation, 95 AJIL 757, 784–85 (2001)CrossRefGoogle Scholar; Verdier, Pierre-Hugues & Voeten, Erik, Precedent, Compliance, and Change in Customary International Law: An Explanatory Theory, 108 AJIL 389 (2014)Google Scholar. 46 See Viljoen, Frans, International Human Rights Law in Africa 533–37 (2nd ed. 2012)CrossRefGoogle Scholar. 1 See, for example, Knop, Karen, Here and There: International Law in Domestic Courts, 32 N.Y.U. J. Int`l L.
& Pol. 501 (2000)Google Scholar; Koh, Harold Hongju, Why Do Nations Obey International Law?, 106 Yale L.J. 2599 (1997)CrossRefGoogle Scholar. In the following sections, we describe the main characteristics of the data, identify the main trends in national approaches to international law, and discuss their implications for comparative international law. We note that, overall, national approaches to contract making and enforcement have changed considerably, and we suggest that the direction of change reflect the simultaneous concern to ensure the effective application of a growing body of contract law and to address increased concerns about accountability and legitimacy as more governance functions are transferred to the international level. In particular, we note that national legal systems tend to give treaties direct effect and hierarchical superiority over national law, which is consistent with the desire to ensure effective implementation. At the same time, national legal systems have steadily expanded the categories of treaties whose ratification requires the prior consent of the legislator, thus expanding the role of national legislators in the development of international law. International Institutions: Laws, Rulemaking/Interpretation & Compliance eJournal 5 Lori Fisler Damrosch & Sean D. Murphy, International Law: Cases and Materials 621 (6th edition 2014). 43 See Patrick Daillier, Mathias Forteau & Alain Pellet, Droit International Public 254–55 (8th edition 2009).
58 Verdier, Pierre-Hugues & Voeten, Erik, How Does Customary International Law Change? The case of State immunity, 59 int`l stud. Q. 209 (2015)CrossRefGoogle Scholar. Of course, this is only a problem if the state generally appreciates the rule, but wants to justify its apostasy in a particular case. If the state does not like the rule and wants to actively undermine it, then it should make the violation as “strong” as possible. 10 International law and domestic legal systems, loc. cit. note 3; National Treaty Law and Practice, op. cit. note 3; Treaty Making – Expression of Consent to be Binding by a Treaty (2001). 4 See, for example, Ginsburg, Tom, et al., Commitment and Diffusion: How and Why National Constitutions Include International Law, 2008 U.
Ill. L. Rev. 201 Google Scholar; Hathaway, Oona A., Treaties` End: The Past, Present, and Future of International Law making in the United States, 117 Yale L.J. 1236 (2008)CrossRefGoogle Scholar. 36 It is important to note that these are not the only means by which international law can become part of national law. For example, in some well-known cases, national courts have taken into account a State`s obligations under international law, although not formally incorporated, when limiting authorized administrative acts. See, for example, Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 (Austl.). The degree of influence that international law can exert in a national legal order is ultimately a matter of degree.
See Kingsbury, Benedict, The Concept of “Law” in Global Administrative Law, 20 Eur. J. Int`l L. 23 (2009)CrossRefGoogle Scholar. In this paper, we focus on those aspects of the relationship – including the formal applicability of treaties ratified by national courts and the explicit articulation of an interpretative presumption of conformity – that are well documented in many countries and therefore lend themselves to consistent coding. 8 James Crawford, Brownlie`s Principles of Public International Law 50 (8th edition 2012). The differences between countries in the relationship between international law and national legal systems are often explained in international law textbooks with reference to the monistic dualistic distinction. According to this distinction, monistic systems consider international law and national law as “two parts of a single system” in which “international law automatically passes into the legal order of the State”, so that “when the State ratifies a treaty, that treaty is automatically and fully incorporated into internal law”. (5) Indeed, in a “pure” monist system, “national law, as the ultimate authority, derives from international law, which is higher in the hierarchy of legal norms”. (6) On the other hand, dualistic systems regard international law and national law as “separate legal systems” in which “[a] rule of international law binding the State does not automatically form part of internal law; it does so only if it has been transposed into national law or transposed into national law by an act at national level, such as a law implementing a contract. (7) 35 See Posner, Eric A. & Sykes, Alan O., Economic Foundations of International Law 141 (2013)Google Scholar. Increased internal barriers to the conclusion of a contract may also strengthen a State`s ex ante bargaining power, as its counterparts will assume that an insufficiently favourable contract may not receive national approval.
See Putnam, Robert D., Diplomacy and Domestic Politics: The Logic of Two-Level Games, 42 Int`l Org. 427, 452–53 (1988)CrossRefGoogle Scholar. However, it is not clear whether the requirements for ex ante approval or ex-post implementation should be systematically more effective in this respect, except, of course, for contracts whose effectiveness does not require national transposition. 37 See, for example, Buergenthal, Thomas, Self-Execution and Non-Execution Treaties in National and International Law, 235 Lecture Series 303, 317 (1992)Google Scholar. As our study makes clear, the monist-dualist distinction has fundamental limits to the classification of national approaches to international law. First, because they stem from a theoretical debate on the nature of international law rather than an attempt to classify actual legal systems, “neither theory provides an adequate account of the practice of international and national courts, whose role in articulating the positions of different legal systems is crucial”. (8) Second, national systems do not adopt a monolithic approach to international law; Most of them combine aspects of the monistic and dualistic approach. In the United Kingdom, for example, treaties do not become part of national law if they are not implemented by Parliament, while the courts can directly apply international practices. Finally, since the distinction is articulated at a high level of generality, scholars sometimes differ on whether a particular country should be correctly classified as “monistic” or “dualistic.” For example, while many observers consider the France to be a monist country, some prominent French scholars argue that the country is truly “dualistic” because the direct effect and superiority of treaties in France are not based on their international validity, but on the French constitution.
(9) 9 See, for example, B. Pellet, Alain, Did you say “monism”? Quelques banalités de bon sens sur l`imposement du prétendu monisme constitutionnel à L•lrançaise, in L`Architecturedudroit: Melangesenl`Honneur de Michel Troper 827 (de Béchillon, Denys et al. eds., 2006)Google Scholar. Although we generally avoid the terms “monistic” and “dualistic” in this article, it is sometimes necessary to do so to avoid repetition or to describe how legal systems are conventionally classified. In such cases, we use the term “monistic” to refer to countries where, after ratification, treaties have direct effect without further legislative intervention (even if the consent of the legislator is required prior to ratification or if formal measures must be taken by other branches for the treaty to enter into force) and “dualistic”, designate countries where legislative action is needed to transpose a ratified treaty into their national law.