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 9: Application of incorporated treaties

Davíd T. Björgvinsson

Subjects: law - academic, public international law


This chapter examines some features of the application of incorporated international treaties, in particular the ECHR. While, formally speaking, fully or partially incorporated treaties by adaptation have the status of statutory law (or administrative regulation, as the case may be), incorporated rules originating in international legal obligations have a distinctive status for different reasons, and special considerations come into play when they are being interpreted and applied on the domestic level. In their interpretation and application it is necessary to look into their background and objectives and ensure that they are achieved. Some treaties, for example the ECHR, provide for international organisations which have the power to interpret and apply them and to supervise their enforcement on the national level. Such rulings and decisions must be seen as precedents that shed light on the interpretation of the individual provisions. Consequently, the impact of such international agreements may go far beyond the text of the treaties. Thus, it is not only the text of the treaties or their individual provisions which are relevant on the national level but also recognised canon and methods of interpretation and application developed by such organisations. This inevitably has an impact on traditional views on the status of legal sources and methods of their application and interpretation, including the status of provisions of international agreements vis-à-vis subsequent legislation which is not compatible with earlier legislation incorporating such conventions.

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