Treaty Enforcement in Domestic Courts: A Comparative Analysis
David L. Sloss
Santa Clara University - School of Law
January 12, 2009
David Sloss, THE ROLE OF DOMESTIC COURTS IN TREATY ENFORCEMENT: A COMPARATIVE STUDY, Cambridge University Press, 2009
This is the introductory chapter for a book that presents a comparative analysis of the role of domestic courts in treaty enforcement. The book examines the application of treaties by domestic courts in twelve countries: Australia, Canada, China, Germany, India, Israel, the Netherlands, Poland, Russia, South Africa, the United Kingdom and the United States. The central question addressed in each of the twelve country chapters is this: do domestic courts provide remedies to private parties who are harmed by a violation of their treaty-based primary rights? In brief, the most significant conclusions that emerge from this study are as follows:
1. Domestic courts in eight of the twelve countries examined in this volume -- Australia, Canada, Germany, India, the Netherlands, Poland, South Africa and the United Kingdom -- generally do enforce treaty-based rights on behalf of private parties. On the other hand, the evidence is somewhat mixed for the other four countries: China, Israel, Russia and the United States.
2. In China, Israel and Russia, the trends are moving in the direction of greater judicial enforcement of treaties on behalf of private parties. The United States is the only country studied in this volume where the trends are moving in the opposite direction.
3. The conventional wisdom is wrong, insofar as the conventional wisdom holds that direct judicial application of treaties is a more effective means of treaty enforcement than indirect application. In countries such as Canada and India, where domestic law precludes direct application of treaties, domestic courts play an active role in treaty enforcement by applying treaties indirectly. In contrast, in the United States and China, for example, although domestic courts have the authority to apply treaties directly in some cases, they rarely utilize their judicial power to remedy treaty violations committed by government actors.
Number of Pages in PDF File: 49Accepted Paper Series
Date posted: January 20, 2009
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