The Relations Between International Law and Domestic Courts

de Santa Cruz Oliveira, Maria Angela Jardim

doi:10.1007/978-3-319-13902-9_2

Maria Angela Jardim de Santa Cruz Oliveira²

475 Accesses

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.

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Notes

1.
Roberts (2011).
2.
Ibid.
3.
Mamlyuk and Mattei (2011), p. 389.
4.
Mednicoff (2007), p. 338.
5.
Roberts (2011), p. 57.
6.
Sacco (1997), pp. 25–26.
7.
Mamlyuk and Mattei (2011), p. 388.
8.
Koskenniemi (2009), p. 4.
9.
Mamlyuk and Mattei (2011), p. 388, asserting that William Butler, a Russian scholar, is the founder of the comparative international law as he taught a course on “comparative approaches to international law” in England in the 1970s, and citing his scholarly production, among them, a study on Russian, Chinese and American approaches to international law conducted at Harvard Law School in the late 1960s.
10.
Ibid. (2011), pp. 388–389.
11.
See Koh (1999) describing the British and the US judicial internationalization of the norm against torture in international human rights law; Warner la Forest (2004), p. 158, discussing the use of international and comparative human rights law in Canadian courts, and listing numerous academic writings on the parameters of the use of international law and comparative law by domestic courts; Waters (2006), with several individual writings considering the use of international law by British and Canadian national courts.
12.
Australia, Canada, Germany, India, Israel, the Netherlands, Poland, Russia, South Africa, the United Kingdom, and the United States. Sloss clarifies that at the outset of this comparative study, chapters on Argentina, Brazil, China, Mexico, Nigeria and South Korea were also included, but, for different reasons, such chapters never materialized.
13.
Sloss (2010), p. 1.
14.
Ibid., p. 2.
15.
Ibid., p. 3.
16.
See Cataldi and Iovane (2009) and Fatima (2005), explaining how United Kingdom courts handles international law in domestic law; Klein and Hughes (2009), Eskridge Jr (2004), Rosenkrantz (2003), and Reinisch (2007).
17.
Panel on The Rising Use of International Law by African Judiciaries (2010).
18.
Nollkaemper (2007). Nollkaemper acknowledges that is not clear whether domestic courts have a role in the implementation of the international responsibility of states because, when domestic courts find that international law has been breached, “they tend to apply domestic rules of attribution, defenses, and reparation, without considering what international law might have to say on the question of responsibility.” Nollkaemper argues that domestic courts should apply principles of international responsibility as a practical way to develop international law, which otherwise would be exclusively confined to political processes.
19.
Crawford (2012), p. 50.
20.
Conforti (1993), p. 26.
21.
Galindo (2012), p. 141.
22.
Ibid.
23.
Triepel (1920).
24.
Ibid., pp. 252–253.
25.
Kaczorowska (2010), p. 143.
26.
Ibid. These main theorists are Triepel, Jellinek and Anzilotti.
27.
Ibid.
28.
The most prominent legal scholars who supported this approach were Hans Kelsen, who based his theory on formalist logical grounds, and Lauterpacht, who sustained this theory based on moral purpose and justice. For more detailed information, see Shaw (2003), p. 122.
29.
Kaczorowska (2010), p. 148.
30.
Crawford (2012), p. 34.
31.
Eeckhout (2011), p. 1501.
32.
Petersen (2009).
33.
Eeckhout (2011), p. 1501.
34.
Bianchi (2004), p. 753.
35.
Cassese (1985), p. 343.
36.
Ibid.
37.
Petersmann (2007), p. 3.
38.
Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1805).
39.
Dorsen et al. (2003), p. 100.
40.
Hughes (1908), p. 139.
41.
Cassese (1985), p. 394.
42.
Ibid., p. 395.
43.
Ibid., pp. 395–396.
44.
Canor (2009), pp. 877–878.
45.
Ibid.
46.
Conforti (1993), Slaughter (1994, 2003, 2004), Benvenisti (1994), Conforti and Francioni (1997), Frowein (1997), Knop (2000), Betlem and Nollkaemper (2003), Posner (2009), Nollkaemper (2011), and Roberts (2011).
47.
Cottier and Schefer (1998), p. 91, explaining that there are some authors that make subtle distinctions between “direct effect” and “self-executing” doctrines.
48.
Brand (1997), p. 559; Cottier (2009), p. 308.
49.
Bianchi (2004), p. 759.
50.
Brand (1997), pp. 559–560.
51.
Cottier and Schefer (1998), p. 91.
52.
Jackson (1992), p. 317.
53.
Ibid., p. 318.
54.
Van den Bossche ( 2008), p. 66, fn 259.
55.
Vázquez (1995), p. 695.
56.
Ibid. (1995), Bradley (2008), Vázquez (2008), Moore (2009), Young (2009), and Golove and Huselbosch (2010).
57.
Brand (1997), p. 562.
58.
Vázquez (1995), p. 695.
59.
Ibid., pp. 695–696.
60.
Dupuy (2007), p. 3. See also Conforti (1993), p. 26; Canor (2009), p. 877.
61.
Conforti (1993), p. 25.
62.
Cottier (2002), p. 110.
63.
Betlem and Nollkaemper (2003), p. 571.
64.
Ibid., p. 572.
65.
Cottier and Schefer (1998), p. 88.
66.
Cottier (2007), p. 316.
67.
Murray v. The Schooner Charming Betsy, 6 U.S. (2 Cranch) 64 (1804).
68.
Ibid.
69.
Frigero v. EVED, BGE 94 I 669, 678 (1968).
70.
For more examples of Swiss cases, see Cottier and Schefer (1998), p. 268, fn 23.
71.
Case C-61/94, Commission of the European Communities v. Federal Republic of Germany, 1996 E.C.R. I-03989, Summary of Judgment, paragraph 3.
72.
Conforti (1993).
73.
Waters (2005) and Roberts (2011).
74.
Knop (2000), p. 520.
75.
Ibid., p. 520.
76.
The United States’ position on the WTO agreements will be appraised in Sect. 2.3.2 below, because of its paramount influence in the world trade system.
77.
See Falk (1964), Conforti (1993), Benvenisti (1994), Conforti and Francioni (1997), Francioni (2001), and Nollkaemper (2011).
78.
Dupuy (2007), p. 3.
79.
Cassese (1990), p. 213, fn 5.
80.
Conforti and Francioni (1997), p. 3.
81.
Conforti (1993), p. 7.
82.
Ibid., p. 9.
83.
Jiménez de Aréchaga and Tanzi (2001), pp. 364–365.
84.
Dupuy (2007), p. 3.
85.
Conforti (1993), p. 10.
86.
Ibid., pp. 13–47.
87.
Ibid., pp. 15–16.
88.
See Lord Lester of Herne Hill (2007), p. 73.
89.
Conforti (1993), pp. 42–44.
90.
Ibid., p. 42.
91.
Conforti (1993), pp. 43–44.
92.
There are two “judicial avoidance techniques” per Conforti’s classification that will not be addressed in this research. The first one is the “trend to deny that binding resolutions of international organizations are self-executing.” Conforti himself recognizes (and heavily criticizes) that the dominant doctrine states that United Nations binding resolutions (like Security Council decisions or WHO regulations) cannot be enforced by domestic legal actors. The second one is the act of state doctrine. Even though the act of state doctrine may prevent courts from analyzing allegations of breach of international law, it refers to adjudication over official acts of another country issued within its own territory. Although very interesting t issues, these two categories are not pertinent to this study, and therefore are not further elaborated in this research.
93.
Conforti (1993), p. 10.
94.
Ibid.
95.
Institut de Droit International, L’activité du juge interne et les relations internationales de l’Etat, Session de Milan (1993).
96.
Bianchi (1999), p. 250.
97.
Ibid.
98.
Lord and Stein (2009), Waters (2007), and McGoldrick (2007).
99.
Knop (2000).
100.
Ibid., p. 503.
101.
Ibid.
102.
Ibid., p. 505.
103.
Ibid.
104.
Ibid., p. 517.
105.
Ibid., p. 503.
106.
Ibid., p. 504.
107.
Ibid., p. 506.
108.
Ibid., p. 506.
109.
Ibid., p. 504.
110.
Ibid., p. 517.
111.
Ibid.
112.
Ibid.
113.
Ibid.
114.
Ibid., p. 535.
115.
Knop (2000) and Roberts (2011).
116.
Statute of the International Court of Justice, 1947 I.C.J. Article 38.
117.
Roberts (2011), p. 91.
118.
Waters (2005), p. 490.
119.
Ibid.
120.
Roberts (2011), p. 61.
121.
Ibid., p. 91.
122.
Ibid., p. 74.
123.
Ibid.
124.
Ibid., p. 70.
125.
Ibid., p. 88.
126.
Knop (2000), p. 520.
127.
Slaughter (1994, 2003, 2004).
128.
Slaughter (2004).
129.
Slaughter (2003), p. 194.
130.
Knop (2000), p. 520.
131.
Ibid.
132.
Ibid., p. 524.
133.
Mills and Stephens (2005), p. 2.
134.
Slaughter (1994), p. 101.
135.
Ibid.
136.
Baudenbacher (2004), p. 358.
137.
Article 267 of the Treaty on the Functioning of the EU prescribes:
- The Court of Justice of the European Union shall have jurisdiction to give preliminary rulings concerning:
  
  (a)
  the interpretation of the Treaties;
  
  (b)
  the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union;
- Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court to give a ruling thereon.
- Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court.
- If such a question is raised in a case pending before a court or tribunal of a Member State with regard to a person in custody, the Court of Justice of the European Union shall act with the minimum of delay.
138.
L’Heureux-Dubé (1998), p. 16.
139.
Knop (2000), pp. 522–524.
140.
Knop (2000), pp. 522–524.
141.
Posner (2009), p. 48.
142.
Ibid.
143.
Abi-Saab (2010), pp. 13–14. Abi-Saab remarks that the WTO’s atmosphere is encapsulated in the mantra that “this is a member-driven Organization,” and the general feeling that it is the members themselves that take all the final decisions. It [the Appellate Body] had for mandate to interpret and apply very detailed treaty provisions, shoddily drafted, with the injunction that its rulings “cannot add to or diminish the rights and obligations provided in” these treaties; and with the political organs and the member states closely watching (not to say looking over its shoulder) how it interprets and applies them.
144.
Raustiala (2006), pp. 423–424.
145.
Ibid., p. 424.
146.
Posner (2009).
147.
Ibid., p. XV.
148.
Ibid., pp. 110–111.
149.
Ibid., p. 110.
150.
Ibid.
151.
Ibid., p. 111.
152.
Ibid., p. 111.
153.
Ibid., p. 112.
154.
Ibid., p. 112.
155.
Ibid., pp. 112–113.
156.
Yoo (1999a), p. 1961. See also Yoo (1999b), p. 2240.
157.
Posner (2009), p. 109. Posner exemplifies the way that countries may discharge their international obligations in domestic practice as follows:
- Suppose the United States and Canada agree to limit cross-border pollution. The United States might discharge this obligation by strengthening tort laws, while Canada issues an administrative order requiring factories to relocate farther from the border. As long as the United States and Canada are concerned only about the pollution, they should be indifferent to how pollution is reduced, in which case there is no reason for the treaty to provide rules governing how pollution is to be controlled.
- In a regime in which international law is incorporated into domestic law, we can imagine domestic courts responding to the cross-border pollution treaty in a number of ways. Suppose that a citizen of Canada (or the United States) sues the United States for failing to adequately implement the treaty through the strengthening of the tort system. A court would no longer have the option of holding, as it would probably today, that the treaty is non-self-executing, and therefore, the claim fails. Instead, it might order the government to revise the tort system or undertake the revision itself. If, for example, the defect in the tort system is that the damages remedy is too low, the court could order the government to change the remedy or else, through ordinary litigation, change the remedy by holding that the treaty obligation supersedes the tort system.
158.
Ibid., p. 103. See also Yoo (1999a), p. 2220.
159.
Bradley (1998b).
160.
Bradley (1998b), p. 443.
161.
Posner (2009), p. 112.
162.
Dunoff and Trachtman (1999), p. 1.
163.
Trachtman (2009), p. 224.
164.
Posner (2007), p. 513.
165.
Trachtman and Moremen (2003), p. 222.
166.
Posner (2007), p. 513.
167.
Article 89 of the Rome Statute provides that the International Criminal Court may request states parties for the arrest and surrender of a person, and Article 90 regulates priority when there are competing surrender requests from the ICC and extraditions requests from other states parties of the same persons.
168.
Posner (2007), p. 513.
169.
Ibid.
170.
Neuman (2003), p. 1869.
171.
Ibid.
172.
Abul-Ethem (2002), p. 762.
173.
Gardbaum (2009), p. 235. The author points out that the major exceptions (of international human rights treaties that are not part of modern constitutions bill of rights) are parts of the International Covenant on Economic, Social and Cultural Rights and the Convention on the Elimination of All Forms of Discrimination against Women.
174.
Ibid., pp. 233–234.
175.
Ibid., p. 236. The international human rights treaties commonly referred to as the “international bill of rights” are the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights.
176.
Ibid.
177.
Petersmann (2001).
178.
Cass (2005), p. 21.
179.
Hilf (1997), p. 331.
180.
International legal scholarship has provided diverse meanings of subsidiarity in different contexts. For detailed information on the different concepts and usage of subsidiarity, see Carozza (2003).
181.
Bradley (2001), p. 459.
182.
Michaels (2011), p. 171. See also Bradley (2001).
183.
Tomkins (2001) and Fuentes Torrijo (2008).
184.
Tomkins (2001), p. 2.
185.
WTO, Members and Observers (2014).
186.
Von Bogdandy (2008), p. 405.
187.
Reed (2007).
188.
Van den Bossche (2008), p. 68.
189.
See Qin (2007), stating that there is a consensus that WTO agreements do not have direct effect in Chinese law and require enabling legislation.
190.
Cottier and Schefer (1998), p. 93.
191.
See Jackson (1997) and Matsushita et al. (2006).
192.
Jackson (2006), p. 125.
193.
Suramerica de Aleaciones Laminadas, C.A. v. United States, 966 F.2d 660 (Fed. Cir. 1992). This statement was also quoted in a more recent decision Cummins Inc. v. United States 454 F.3d 1361, 1366 (Fed. Cir. 2006).
194.
Suramerica de Aleaciones Laminadas, C.A. v. United States, 966 F.2d 660, 667–668 (Fed. Cir. 1992).
195.
Restani and Bloom (2000), p. 1542.
196.
Bradley (1998a), p. 536. For a critique of this position, see Harvard Law Review (2008).
197.
Brennan (2003), p. 320. See also Reed (2007).
198.
Federal Mogul Corp. v. United States, 63 F.3d 1572, 1581 (Fed. Cir. 1995).
199.
Cottier and Schefer (1998), pp. 90–91.
200.
Irwin et al. (2008):

Imperial preferences continued to be the most contentious issue and the United States handled it very clumsily. Clayton repeatedly tied American financial assistance to the elimination of imperial preferences, implicitly threatening that U.S. aid would not be forthcoming if Britain insisted on keeping preferences. Congress, he insisted, would not approve a loan unless Britain promised the complete abolition of discriminatory preferences. However, State Department civil servants took a softer line than Clayton, assuring their counterparts that there was no quid pro quo between preferences and financial assistance. Indeed, the U.S. Embassy in London warned the State Department that a heavy-handed American demand for an immediate and complete abolition of preferences as a condition for a loan would create a severe backlash in the United Kingdom. Whereas the United States thought the linkage was simply a form of conditionality, the United Kingdom viewed it as blackmail, as exploiting the country’s weak economic position for America’s advantage. However, Clayton and his staff were sending different signals to the British, and hence the U.S. message was somewhat contradictory: on the one hand, they wanted the two issues discussed in the same forum, but they did not insist that one depended upon the other.
201.
Irwin et al. (2008).
202.
Ibid., p. 96, pointing out that the first time a small group of countries—or “nuclear countries”—were invited to participate in the discussion of the international trade system was in the UN Preparatory Committee for the International Conference on Trade and Employment in London, 1946 (the London Preparatory Meeting).
203.
WTO, United States—Sections 301–310 of the Trade Act of 1974, WT/DS152/R, adopted 27 January 2000.
204.
For a detailed account of the creation of the GATT, see Irwin et al. (2008).
205.
Jackson (2006), p. 125.
206.
Uruguay Round Agreements Act (URAA), Section 102(a)(1), 19 U.S.C. § 3512(a)(1) reads:

Relationship of agreements to United States law

(1) United States law to prevail in conflict.

No provision of any of the Uruguay Round Agreements, nor the application of any such provision to any person or circumstance, that is inconsistent with any law of the United States shall have effect.
207.
Grimmet (2011).
208.
Vagts et al. (2003), p. 130.
209.
Van den Bossche (2008), p. 68.
210.
See Hilf (1997), p. 337.
211.
Kuijper and Bronckers (2005), p. 1315.
212.
Ibid.
213.
Guzman and Pauwelyn (2009).
214.
Sykes (2005), p. 631.
215.
Ibid., p. 633.
216.
Ibid., p. 646.
217.
Ibid., p. 651.
218.
Ibid.
219.
Cottier and Schefer (1998), pp. 83–84.
220.
Ibid.
221.
Kuijper and Bronckers (2005), p. 1315.
222.
For a survey of arguments for and against direct effect of WTO agreements, see Table 2.1 at Sect. 2.3.1 above.
223.
Hilf (1997), p. 337.
224.
DSU, Article 22 reads:
Article 22 – Compensation and the Suspension of Concessions
1. 1.
  Compensation and the suspension of concessions or other obligations are temporary measures available in the event that the recommendations and rulings are not implemented within a reasonable period of time. However, neither compensation nor the suspension of concessions or other obligations is preferred to full implementation of a recommendation to bring a measure into conformity with the covered agreements. Compensation is voluntary and, if granted, shall be consistent with the covered agreements.
2. 2.
  If the Member concerned fails to bring the measure found to be inconsistent with a covered agreement into compliance therewith or otherwise comply with the recommendations and rulings within the reasonable period of time determined pursuant to paragraph 3 of Article 21, such Member shall, if so requested, and no later than the expiry of the reasonable period of time, enter into negotiations with any party having invoked the dispute settlement procedures, with a view to developing mutually acceptable compensation. If no satisfactory compensation has been agreed within 20 days after the date of expiry of the reasonable period of time, any party having invoked the dispute settlement procedures may request authorization from the DSB to suspend the application to the Member concerned of concessions or other obligations under the covered agreements.
225.
European Communities—Measures Concerning Meat and Meat Products (Hormones), WT/DS26/AB/R, adopted 13 February 1998.
226.
United States—Measures Affecting the Cross-Border Supply of Gambling and Betting Services, WT/DS285.
227.
For an overall account of these negotiations, see Evans and Tarso Pereira (2005).
228.
Bradley (1998a).
229.
ILO Convention concerning Termination of Employment at the Initiative of the Employer, Art. 1:
- Article 1. The provisions of this Convention shall, in so far as they are not otherwise made effective by means of collective agreements, arbitration awards or court decisions or in such other manner as may be consistent with national practice, be given effect by laws or regulations.
230.
According to Brazilian legislation, an employer is required to monthly pay 8 % of the employee’s salary to a severance bank account in the name of the employee. In case of termination without good cause by the employer, the employee has the right to claim the balance of such payments with an additional compensation of 40 % of the accumulated balance since the beginning of the employment.
231.
JT/MG, Processo n. 428/96, Patos de Minas, Juíza Alice Lopes Amaral, 29.4.1996; JT/MG, Processo n. 490/96, Patos de Minas, Juíza Alice Lopes Amaral, 15.5.1996; JT/MG, Processo n. 399/96, João Montalverde, Juíza Vânia Maria Arruda, 6.5.1996; JT/MG, Processo n. 373/96, João Montalverde, Juíza Vânia Maria Arruda, 9.5.1996; JT/RS, Processo n. 410/96, Alegrete, Juiz José Renato Stangler, 22.5.1996; JT/RS, Processo n. 697/96, Canoas, Juíza Maria Joaquina Carbunk Schissi, 4.6.1996.
232.
ILO Convention concerning Termination of Employment at the Initiative of the Employer, Article 4 and 10:
- Article 4. The employment of a worker shall not be terminated unless there is a valid reason for such termination connected with the capacity or conduct of the worker or based on the operational requirements of the undertaking, establishment or service.
- Article 10. If the bodies referred to in Article 8 of this Convention [an impartial body, such as a court, labor tribunal, arbitration committee or arbitrator] find that termination is unjustified and if they are not empowered or do not find it practicable, in accordance with national law and practice, to declare the termination invalid and/or order or propose reinstatement of the worker, they shall be empowered to order payment of adequate compensation or such other relief as may be deemed appropriate.
233.
TRT/SP, Acórdão SDC n. 257/96-A, Relator: Juiz Floriano Corrêa Vaz da Silva, 13.6.1996.
234.
STF, Ação Direta de Inconstitucionalidade n. 1480-DF, Relator: Ministro Celso de Mello, 4.9.1997, D.J.U. de 18.5.2001. To be sure, the dispute over the application of the ILO Convention n. 158 was not only circumscribed to whether its text was self-executing; the controversy was also aggravated by the fact that the Brazilian Constitution Article 7, I, prescribes that the protection against arbitrary dismissal or against dismissal without just cause is to be regulated by supplementary law, which necessitates a qualified vote of absolute majority of Congress to be passed.
235.
Justice Celso de Mello, the Rapporteur of the case, cites Articles 4, 5, 6 and 8 of the ILO Convention n. 158 as examples of provisions that were similar to already existing provisions of Brazilian domestic law.
236.
The denunciation of Convention n. 158 was registered at ILO headquarters on 20 November 1996. At the domestic level, the denunciation was made public through Decreto n. 2100, de 20 de dezembro de 1996, D.O.U. de 23.12.1996.
237.
Markovic and Others v. Italy [GC], n. 1398/03, Eur. Ct. H.R. (2006).
238.
Excerpt of the Italian Court of Cassation ruling quoted in Markovic and Others v. Italy [GC], n. 1398/03, Eur. Ct. H.R. (2006), pp. 6–7.
239.
Markovic and Others v. Italy [GC], n. 1398/03, Eur. Ct. H.R. (2006), p. 26.
240.
Ibid., p. 32.
241.
Ibid., p. 38.
242.
Bradley (1998a), p. 536.

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Maria Angela Jardim de Santa Cruz Oliveira

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de Santa Cruz Oliveira, M.A.J. (2015). The Relations Between International Law and Domestic Courts. In: International Trade Agreements Before Domestic Courts. Springer, Cham. https://doi.org/10.1007/978-3-319-13902-9_2

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DOI: https://doi.org/10.1007/978-3-319-13902-9_2
Published: 01 December 2014
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