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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.
Intended learning outcomes
A student who has successfully completed this subject will:
- Have an advanced and integrated understanding of the key functions performed by domestic courts in the international legal system, including recent developments in this field of law and practice
- Be able to critically examine, analyse, interpret and assess the effectiveness of relevant legal doctrines and principles.
- Be an engaged participant in debates regarding emerging and contemporary issues in the field,
- Have a sophisticated appreciation of the factors and processes that tend to push courts to adopt a more nationalist or transnationalist approach.
- Have an advanced understanding of the wide variety of circumstances in which domestic courts are asked to apply, interpret, or enforce international or transnational legal rules.
- Have a firm understanding of the differences between monist and dualist legal systems, and how those differences affect the way in which domestic courts in different countries handle claims rooted in international law.
- Have the cognitive and technical skills to generate critical and creative ideas relating to the application of international law by domestic courts
- Have the cognitive and technical skills to independently examine, research and analyse existing and emerging legal issues relating to the application of international and transnational law by domestic courts.
- Have the communication skills to clearly articulate and convey complex information regarding the domestic application of international law to relevant specialist and non-specialist audiences
- Be able to demonstrate autonomy, expert judgment and responsibility as a practitioner and learner in the field of the domestic application of international law.
Last updated: 24 January 2023