Closing the Governance Gap
Chapter 7: Customary international law as a cause of action outside the US
Under the ATS, the violation of certain jus cogens norms of international criminal law to which private persons are subject, has been held to create a civil cause of action. This chapter will consider whether this cause of action is a peculiarly US phenomenon which looks doomed to extinction after Kiobel or whether such a cause of action would subsist in other jurisdictions. The critical question is whether violations of customary international law (CIL) generate a distinct cause of action under UK law. The answer to this question depends upon how the UK courts have dealt with the relationship between international law and domestic law. There are two doctrines on this issue. The first is the doctrine of incorporation under which the rules of international law are incorporated into UK law automatically and are considered to be part of UK law unless they are in conflict with an Act of Parliament. The second is the doctrine of transformation under which the rules of international law are not to be considered as part of UK law except insofar as they have been already adopted and made part of our law by the decisions of the judges, or by Act of Parliament, or long-established custom. In criminal proceedings the theory of transformation has been applied.
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