Domestic Application of International Law : Focusing on Direct Applicability / Yuji Iwasawa.

Format:

Book

Author/Creator:

Iwasawa, Yūji, 1954- author.

Series:

International law in Japanese perspective ; v. 15.

International Law in Japanese Perspective Series ; Volume 15

Language:

English

Subjects (All):

International and municipal law.

Effectiveness and validity of law.

International law.

Physical Description:

1 online resource (344 pages)

Edition:

First edition.

Place of Publication:

Leiden, The Netherlands : Koninklijke Brill nv, [2023]

Summary:

This book is a comprehensive study on the application of international law in domestic law, with a particular focus on the concept of direct applicability. It critically examines the domestic application of international law and puts forward a new framework.

Domestic Application of International Law analyses the domestic application of international law, with a particular focus on the concept of direct applicability. It critically examines the relevant doctrine and practice and proposes a new analytical framework. It argues, inter alia, the following: direct applicability is a question of domestic law; international law is presumed to be directly applicable; the criteria for direct applicability are grounds to exclude rather than establish direct applicability; the positive intent of the parties should not be considered a criterion; domestic legal force is a prerequisite for direct applicability; a relative approach to direct applicability should be adopted.

Contents:

Half Title

Series Information

Title Page

Copyright Page

Contents

Preface

Abbreviations

Table of Cases

Chapter 1 Introduction

A Increasing Importance of the Domestic Application of International Law

B Incorporation of International Law

C Different Sources of the Concept of Direct Applicability

Chapter 2 Concept of Direct Applicability: The International Approach

A Advisory Opinion of the Permanent Court of International Justice on Jurisdiction of the Courts of Danzig

B The International Approach

1 The International Covenant on Civil and Political Rights

2 The International Covenant on Economic, Social and Cultural Rights

3 The European Convention on Human Rights

4 The American Convention on Human Rights

5 The Genocide Convention

6 The European Social Charter

7 The ilo Conventions

8 The Paris Convention for the Protection of Industrial Property

C Problems of the International Approach

Chapter 3 The Doctrine of Self-Executing Treaties in the United States

A Concept

1 Directly Applicable and Executed without Legislation

2 Direct Applicability and Domestic Legal Force of International Law

(a) Distinguishing Direct Applicability and Domestic Legal Force

(b) Relationship between Direct Applicability and Domestic Legal Force

3 Creation of Individual Rights

B Question of Domestic Law

C Criteria

1 Subjective Criteria

(a) Intent of the Parties

1) Positive Intent of the Parties

2) Presumption

3) Negative Intent of the Parties

4) Provisions Calling for Domestic Implementation

5) Provisions Calling for International Implementation

6) Intent of the United States

7) Travaux Préparatoires

8) Intent of other States

(b) Executive Intent

(c) Legislative Intent

(d) Declarations

2 Objective Criteria

(a) Precision.

(b) Subject Matter

(c) Legal Obligations

(d) Political Treaties

(e) International Procedures for Enforcement

(f) Formal Addressee

(g) Language of Contract

D Relative Approach

Chapter 4 Direct Effect of European Union Law

1 Origin of the Concept

2 Direct Effect and Direct Applicability

B Question of EU Law

1 Spirit, General Scheme, and Wording

2 Precision

3 Absence of Discretion

4 Unconditionality

5 Other Criteria

(a) Provisions Calling for Implementation

(b) Formal Addressee

(c) International Procedures for Enforcement

(d) Legal Obligations

D Regulations, Decisions, Directives, and International Agreements

1 Regulations, Decisions, and Directives

2 International Agreements

E Relative Approach

1 Contextual Determination of Direct Applicability

2 The Review of Legality of Member States' Administrative or Legislative Actions

3 Exclusion Effect and Substitution Effect

4 Exclusion Effect and Direct Effect

5 Primacy and Direct Effect

6 Other Effects

F Direct Applicability in EU Law and International Law

Chapter 5 Domestic Application of International Law: A Framework of Analysis

A Concept of Direct Applicability of International Law

1 Confusion of Concept

(a) Distinguishing Direct Applicability from Domestic Legal Force

4 Distinguishing Directly Applicable International Law from Law-Making Treaties

C Criteria of the Direct Applicability of International Law

2) Presumption.

3) Negative Intent of the Parties

6) Intent of One's Own State

8) Intent of Other States

(b) Intent of the Executive and the Legislature

1) The Executive Intent

2) The Legislative Intent

3) Declarations

(a) Precision

(b) Subject Matter

(f) Reciprocity

(g) Formal Addressee

2 Positive Application and Negative Application of International Law

3 Exclusion Effect

4 Standstill Effect

5 Review of the Legality of National Measures

7 Advantages of the Relative Approach

Chapter 6 Customary International Law and Acts of International Organizations

A Direct Applicability of Customary International Law

B Direct Applicability of Acts of International Organizations

1 Domestic Legal Force

2 Direct Applicability

3 Other Effects

Chapter 7 Judgments of International Courts

A Domestic Enforcement of International Decisions

1 International Arbitral Awards

2 European Court of Justice

3 European Court of Human Rights

4 International Court of Justice

5 World Trade Organization

B Direct Enforceability

C Acts of International Supervisory Bodies

1 International Labour Organization

2 United Nations Human Rights Treaty Bodies

D Effects Other Than Direct Enforceability

E Authentic Interpretation and Authoritative Interpretation

Conclusion

Bibliography

Books

Articles

Index.

Notes:

Includes bibliographical references and index.

Description based on print version record.

Other Format:

Print version: Iwasawa, Yuji Domestic Application of International Law

ISBN:

9789004523401

Publisher Number:

10.1163/9789004523401 DOI