International Law in National Legal Systems: An Empirical Investigation

Comparative International Law, Anthea Roberts, Paul B. Stephan, Pierre-Hugues Verdier & Mila Versteeg, eds., Oxford University Press, 2018, pp. 209-230

American Journal of International Law, Vol. 109, p. 467, July 2015

Virginia Public Law and Legal Theory Research Paper No. 24

27 Pages Posted: 12 Feb 2016 Last revised: 17 Mar 2018

See all articles by Pierre-Hugues Verdier

Pierre-Hugues Verdier

University of Virginia School of Law

Mila Versteeg

University of Virginia School of Law

Date Written: 2015

Abstract

International legal scholars have long recognized the importance of the rules and processes by which states adhere to international legal obligations and "translate" them into their domestic legal systems. Yet, the lack of systematic data makes it difficult to assemble an overall picture of the relationship between international law and national legal systems. In this paper, we draw upon a new data set, which currently covers 101 countries for the period 1815-2013 and reflects numerous specific features of national approaches to international law, including treaty-making procedures, the status of treaties in domestic law, and the reception of customary international law. We find that national legal systems have become more likely to give treaties direct effect and hierarchical superiority over domestic law, but at the same time have steadily expanded the categories of treaties whose ratification requires prior legislative approval. With respect to CIL, we find that the vast majority of national legal systems now recognize custom as directly applicable, at least in principle, but generally consider it to be hierarchically inferior to domestic law. These findings have implications for the comparative international law project and for several other strands of scholarship, including research on the role of courts and other domestic institutions in implementing international law obligations.

Keywords: international law, domestic law, incorporation, treaties, customary international law, empirical legal studies

JEL Classification: K33, N40

Suggested Citation

Verdier, Pierre-Hugues and Versteeg, Mila, International Law in National Legal Systems: An Empirical Investigation (2015). Comparative International Law, Anthea Roberts, Paul B. Stephan, Pierre-Hugues Verdier & Mila Versteeg, eds., Oxford University Press, 2018, pp. 209-230; American Journal of International Law, Vol. 109, p. 467, July 2015; Virginia Public Law and Legal Theory Research Paper No. 24. Available at SSRN: https://ssrn.com/abstract=2731663

Pierre-Hugues Verdier (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

Mila Versteeg

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

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