The Intersection of International Law and Domestic Law

The Intersection of International Law and Domestic Law

A Theoretical and Practical Analysis

Davíd T. Björgvinsson

What are the theoretical and practical issues relating to the intersection between domestic and international law? This important new book discusses how general theories, including monism and dualism, transpire in practice. The author examines several key areas: the rules relating to treaty making and the ratification of treatises, the doctrine of automatic incorporation and transformation, the direct effect of international norms in the domestic system, and a discussion of the principle of consistent interpretation. With a focus on the European Convention on Human Rights, the author concludes that, although traditional theories are still relevant, they fall short in grasping the complexity of the different ways in which the legislator and the courts have given effect to international law on the domestic level.

Chapter 5: Direct effect

Davíd T. Björgvinsson

Subjects: law - academic, public international law


In the context of the relationship between international law and national law, the concept of direct effect has different meanings. In the broadest sense it means that a certain norm becomes binding on the national level so potentially individuals and legal persons can invoke it and the courts can apply it. In the context of EU law, one speaks of direct applicability. Used this way, it means, for example, that under the doctrine of automatic incorporation duly ratified treaties will have direct effect (direct applicability) in the meaning of valid law on the national level. Being a valid law, individuals can invoke it if it pertains to their rights and the court will apply it by referring to it. Thus, it has direct effect regardless of whether any individual or legal person has ever in reality invoked it or whether the courts have actually referred to it or not. It is a part of the national order and is thus directly applicable by the courts if it pertains to rights of individuals or economic operators. There is also a narrower meaning of the concept where it is limited to situations where a court gives effect to an international norm that has not been made a part of the domestic law either by automatic incorporation or by incorporation on behalf of the legislature. In this situation the courts give direct effect to a norm.

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