Domestic Courts and International Law (LAWS90019)

With the rise of globalisation, the boundary separating domestic law from international law has become increasingly permeable. Consequently, states are making greater use of international law to regulate activity that was previously regulated exclusively at the domestic level. Additionally, modern international law has developed a growing emphasis on protecting the rights of private parties in areas as diverse as international human rights, transnational child custody disputes, and cross-border commercial transactions. As a consequence, domestic courts are playing an increasingly prominent role in the application and enforcement of international law.

This subject provides an overview of the crucial role domestic courts play in the implementation and enforcement of various international legal regimes. Principal topics include:

• A conceptual framework about the role of domestic courts in applying international law. This framework emphasizes the distinction between monist and dualist legal systems, also the distinction among horizontal, vertical, and transnational legal obligations.
• The judicial decisions by domestic courts from various countries in cases where defendants raised a foreign sovereign immunity defense
• The judicial decisions by domestic courts from various countries in cases involving the extraterritorial application of domestic statutes
• The role of domestic courts in implementing three different treaty regimes that regulate transnational relationships among private parties
• The Convention on the International Sale of Goods
• The Montreal Convention for International Carriage by Air
• The Hague Convention on International Child Abduction
• The role of domestic courts in implementing three different treaty regimes that regulate vertical relationships between states and private parties (vertical treaty regimes)
• The Convention on the Status of Refugees (and associated Protocol)
• The Geneva Conventions on the laws of war
• The Convention Against Torture.

At the end of the subject, we will revisit the conceptual framework, and consider the variation in behaviour by domestic judges confronted with claims based on different types of international legal regimes.