Exploring the Application of International Law in Domestic Courts
Webb, Philippa, Judicature
Exploring the application of international law in domestic courts The Role of Domestic Courts in Treaty Enforcement: A Comparative Study. Edited by David Sloss. Cambridge, New York: Cambridge University Press, 2009. 656 pages. $102
The subject of this book - the role that domestic courts play in providing remedies to private parties who are harmed by a violation of their treaty-based primary rights - may seem to be a narrow, rather technical topic. Yet, it is a topic that compels the reader to explore the application of international law in domestic courts, a subject that in turn leads to reflection on the relationship between international and domestic legal systems.
David Sloss has made two important choices in shaping this book. First, he has invited experts on each jurisdiction to write the relevant chapter rather than attempting to write the entire book himself. Second, he has selected 11 jurisdictions for examination. Both of these choices have consequences, with positive and negative aspects.
The decision to have an edited volume instead of a single-author publication has concrete advantages. The authors of each chapter are all experts with respect to their jurisdiction. As a result, the country chapters are of a very high standard, with succinct explanations of the national legal system, discussion of the leading cases, and careful analysis of the judicial practice, all of which is infused with an understanding of the socio-political context of the jurisdiction. The country chapters read as if the editor provided broad guidance on the topics to be covered [status of treaties in domestic law, interpretation of treaties, judicial remedies) while also allowing authors the flexibility to analyze particular features of their jurisdiction. For example, the chapter on Israel concludes with a fascinating analysis of the international law in cases relating to the Occupied Territories.
The chapter on the United States [US] stands out, and not only because it is written by the book's editor. While the other country chapters tend to take the approach of discussing leading cases, the US chapter is based on the analysis of a database of 38 US Supreme Court cases and 216 cases from state courts and lower federal courts, over the period 1970 to 2006. This empirical approach allows Sloss to demonstrate that what may appear to be a "schizophrenic attitude toward treaty cases" [p. 553) can be explained, at least in part, by the party structure in a given case. US courts are more likely to adopt a nationalist approach when deciding cases in which private parties are adverse to government actors, and to take a transnationalist approach when deciding cases between private parties [p. 553). The US is indeed the only country surveyed where the reluctance of courts to enforce treaty-based rights is waxing rather than waning. In order better to understand the behavior of US courts with respect to international treaties, the reader may turn to another impressive publication by David Sloss.1
The edited nature of this book does, however, slightly weaken the comparative analysis. The most effective comparative work breaks the subject into natural units and makes every part comparative and analytical.2 In this book, there are virtually no cross-references among the 11 country chapters. There is some repetition of general matters, such as the provisions of the Vienna Convention on the Law of Treaties. There is also, almost inevitably, some incoherence. Chapter 1 summarizes the famous Teoh case, an Australian judgment on the legitimate expectations doctrine (p. 21). It gives the impression that the doctrine is still applied by Australian courts in the way it was interpreted in Teoh. Chapter 3 on Australia correctiy explains that the High Court has since cast significant doubt on the doctrine (p. 150).
The self-contained nature of the country chapters is ameliorated by three conceptual chapters. Chapter 1, by Sioss, contains detailed analysis of state practice in the 11 jurisdictions, which gives the reader some insights into the shared and different issues that affect the domestic enforcement of treatybased rights. …