Dualism, Domestic Courts, and the Rule of International Law

Abstract:     
The concern in this article is with the role that domestic courts and judges can play in enforcing the rule of international law in dualist states. The underlying purpose of the article is to consider whether there is something inherently anti-internationalist about dualist legal systems: do domestic courts and judges in dualist systems shun international law in favour of domestic law and, if so, is that a product of the dualist legal system? The paper argues that in fact there is nothing about dualism per se that precludes reference to and reliance on international legal norms and undertakes a short cross-jurisdictional survey in an attempt to sketch out an emerging spectrum of internationalism across dualist states. The purpose is not to present a conclusive picture of the position of international law in every dualist state but rather to argue that dualism alone can not explain the varying degrees of internationalism we see among superior courts in dualist jurisdictions. Rather, as I argue in the final part of the paper, degrees of internationalism should be understood as matters of legal culture. I attempt, in the final section, to unpack some elements of legal culture that are likely to impact on internationalism and, by so doing, to identify areas of possible development for the purpose of increased internationalism.

Keywords: international law, judges, dualism, comparative constitutional law

JEL Classifications: K19, K33, K42, K49

Working Paper Series