Domestic Application of Treaties
David L. Sloss
Santa Clara University - School of Law
April 29, 2011
THE OXFORD GUIDE TO TREATIES, Duncan Hollis, ed., Oxford University Press, 2011
Santa Clara Univ. Legal Studies Research Paper No. 08-11
This paper is a chapter for a forthcoming book, the Oxford Guide to Treaties. The chapter addresses the application of treaties within domestic legal systems. Traditional scholarship on the domestic application of treaties has focused on the distinction between monist and dualist legal systems. Although the monist-dualist framework helps illuminate important formal differences among states, the chapter suggests that scholarly preoccupation with the formal distinction between monism and dualism tends to obscure key functional differences among states.
After discussing the monist-dualist dichotomy in Part One, the remainder of the chapter adopts a functional approach, focusing primarily on the role of domestic courts in promoting compliance with treaty obligations and protecting treaty-based private rights. Part Two explains the distinction between horizontal, vertical and transnational treaty provisions. Part Three addresses the functional distinction between nationalist and transnationalist approaches to judicial application of treaties. Part Four discusses the crucial role of domestic courts in promoting compliance with treaty obligations, especially transnational and vertical treaty obligations.
The analysis shows that domestic courts play a key role in protecting private rights under transnational treaty provisions and promoting compliance with those provisions, but they play virtually no role in promoting compliance with horizontal treaty provisions. This is generally true for both monist and dualist states. The story with respect to vertical treaty provisions is more complicated. When domestic courts adopt a transnationalist approach, they play a key role in protecting private rights under vertical treaty provisions and promoting compliance with those provisions. When domestic courts adopt a nationalist approach, vertical treaty provisions may be under-enforced. There does not appear to be any significant correlation between a state’s formal classification as monist or dualist and the tendency of domestic courts in that state to function in a nationalist or transnationalist mode.
Number of Pages in PDF File: 28Accepted Paper Series
Date posted: May 2, 2011 ; Last revised: December 9, 2011
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