The Intersection of International Law and Domestic Law
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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.
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Chapter 8: Remedies and reparations

Davíd T. Björgvinsson


As regards remedies and reparations, it is first necessary to make a distinction between a situation where an international court or tribunal has found a violation of treaty-based rights of an individual or legal person and a situation where a domestic court has established such a breach, for example on behalf of executive authorities or the lower courts. This chapter on remedies and reparations is limited to the latter. This is an important element in enforcing such rights on the domestic level. Different types of remedies or reparations are possible, both general and individual. If a breach is rooted in flawed domestic legislation, a general remedy would be an amendment to the legislation to prevent similar violations in the future. A more individualised remedy is a ‘dis-application’ of national law and the application of the international rule instead and annulment of an executive decision. Yet another common remedy is a compensation for those suffering from the breach of a treaty obligation. There are also other remedies, as further described below. A comparative study has shown that it is quite common that domestic courts enforce treaty-based rights on behalf of private parties. In addition, there is a trend in some countries to move in the direction of judicial enforcement of such rights. Such remedies show that whether or not domestic courts are willing or able to apply international law (incorporated or unincorporated) can have practical consequences.

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