Determining the Domestic Effect of International Law Through the Prism of Legitimacy

Heidelberg Journal of International Law, Vol. 72, No. 2, 2012

MPI Collective Goods Preprint, No. 2009/39

26 Pages Posted: 7 Jan 2010 Last revised: 3 Jun 2013

See all articles by Niels Petersen

Niels Petersen

University of Muenster – Faculty of Law; Max Planck Institute for Research on Collective Goods

Date Written: November 1, 2009

Abstract

This contribution seeks to shed new light onto the classification of legal orders with respect to the domestic effect of international law. Traditional theory distinguishes between monist and dualist systems, those that accept the primacy of international law over domestic law, and those that do not attribute direct effect to international law in the domestic legal order. This contribution will second-guess this distinction by analyzing judgments on the effect of decisions of international authorities in the domestic order of three different jurisdictions – the United States, Germany and the European Union. It is maintained that all courts dealing with the domestic effect of international secondary law ultimately face questions of legitimacy of the external decisionmaking procedure. I will identify three strategies to cope with this challenge and argue that it is more appropriate to consider the relationship of a national legal order to international law through the prism of how its constitutional court approaches the governance issue than to refer to the traditional monism-dualism-dichotomy.

Keywords: international law, constitutional courts, legitimacy, US Supreme Court, European Court of Justice, ECJ, Germany, Kadi, Medellin, Görgülü

Suggested Citation

Petersen, Niels, Determining the Domestic Effect of International Law Through the Prism of Legitimacy (November 1, 2009). Heidelberg Journal of International Law, Vol. 72, No. 2, 2012; MPI Collective Goods Preprint, No. 2009/39. Available at SSRN: https://ssrn.com/abstract=1532110 or http://dx.doi.org/10.2139/ssrn.1532110

Niels Petersen (Contact Author)

University of Muenster – Faculty of Law ( email )

Germany

HOME PAGE: http://www.nielspetersen.net

Max Planck Institute for Research on Collective Goods ( email )

Germany

HOME PAGE: http://www.coll.mpg.de/team/page/niels_petersen

Register to save articles to
your library

Register

Paper statistics

Downloads
178
rank
160,306
Abstract Views
735
PlumX Metrics