The Law of Treaties Before Domestic Courts

(Updated version) to appear in PA Nollkaemper and E Kristjansdottir (eds) International Law in Domestic Courts Casebook, OUP 2016 (Forthcoming)

Amsterdam Law School Research Paper No. 2015-19

Amsterdam Center for International Law No. 2015-10

34 Pages Posted: 31 May 2015

See all articles by Catherine M. Brölmann

Catherine M. Brölmann

University of Amsterdam - Amsterdam Center for International Law

Christina Binder

Universität der Bundeswehr München

Date Written: May 29, 2015

Abstract

Updated version is available at: https://ssrn.com/abstract=3048826

This paper does not aim to reiterate the law of treaties as such. Rather, we focus on how the law of treaties is used and applied in domestic courts -- a continuously relevant perspective as a growing body of substantive international rules and norms is enshrined in treaties (‘treaty law’), with normative effect in domestic legal orders.

Domestic courts may be faced with the entire range of rules codified in the 1969 and 1986 Vienna Conventions on the Law of Treaties. Judging from an inventory of case based on the ILDC database, however, it seems that certain questions are especially urgent: such as those regarding consent, entry into force, termination, interpretation and self-executingness of treaties. The sections in the paper generally correspond to themes and stages in the ‘life of a treaty’ which play a role in domestic case law: conclusion and entry into force (2); self-executingness (3); binding force and observance (4); reservations and declarations (5); interpretation (6); scope (7); successive treaties (8); amendment and modification (9); and termination and suspension (10).

A central feature of the treatment of law of treaties questions in domestic case law is the interaction (and occasional confusion) between the domestic and international law level. This interaction often adds a particular dimension to the legal questions addressed by national courts -- such as when the domestic approval and the international expression of consent are combined to appraise the conclusion of a treaty, or when the normative scope of the international rule as such is linked to domestic law rules for incorporation to appraise its applicability in domestic law.

Keywords: International law, law of treaties, domestic courts, treaties, self-executing, binding force, interpretation, amendment, termination, reservations.

JEL Classification: K33

Suggested Citation

Brolmann, C. M. and Binder, Christina, The Law of Treaties Before Domestic Courts (May 29, 2015). (Updated version) to appear in PA Nollkaemper and E Kristjansdottir (eds) International Law in Domestic Courts Casebook, OUP 2016 (Forthcoming); Amsterdam Law School Research Paper No. 2015-19; Amsterdam Center for International Law No. 2015-10. Available at SSRN: https://ssrn.com/abstract=2611989

C. M. Brolmann (Contact Author)

University of Amsterdam - Amsterdam Center for International Law ( email )

PO Box 1000
Amsterdam, 1030 BA
Netherlands

HOME PAGE: http://https://home.medewerker.uva.nl/c.m.brolmann/

Christina Binder

Universität der Bundeswehr München ( email )

Germany

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