In recent years, with the growth of international treaty law and the increasing role of international tribunals, questions involving the application of conventional international law and the decisions of international tribunals by national courts have assumed great practical importance. This is not only because such questions are arising with increasing frequency, but also because the way in which they are handled by domestic courts has a lot do with the efficacy of international law. As a practical matter, the rules of conventional international law and the decisions of international tribunals, if applied or effectuated by domestic courts, may very well be determinative of the outcome of a dispute. More significantly domestic courts may be the only bodies that are realistically positioned to apply or effectuate international law or the decisions of international tribunals in specific cases. As a legal matter, international law mandates that a state that has assumed an international legal obligation must act in conformity with that obligation. As far as treaties are concerned, they must be performed in good faith, and a state "may not invoke the provisions of its internal law as justification for its failure to perform a treaty.'"' This means that a state must give effect to a legal obligation it has assumed by agreement with other states no matter what substantive domestic law might provide to the contrary or whether or not domestic institutional or procedural modalities exist to give effect to that obligation. If a state is unwilling or unable to fulfill an international obligation it has assumed, it incurs "international responsibility" for that "wrongful act.'' International law, however, does not prescribe how a state must give effect to an international legal obligation. How a state fulfills its international legal obligations is a matter for the state itself to determine. Traditional international law was concerned primarily with the external behavior of states considered as unitary actors. As the rules of substantive international law and the decisions of international tribunals concern themselves more and more with matters that are internal to states, the quotidian operations of internal institutions are increasingly implicated. This results at times in the clash of core substantive and procedural values of domestic legal systems with contrary requirements of international law or the decisions of international tribunals. The questions faced by both French and American courts revolve around the degree to which conventional international law and the decisions of international tribunals may intrude into the normal operation of their domestic legal systems, systems that have been developed and refined to a large degree by the highest political and legal authorities in each nation, which have deep historical roots, and ones in which each nation takes enormous pride. In many ways, despite their differences and disagreements, contemporary France and the United States are very much alike in ways that are relevant to their attitudes toward international law. France and the United States each see themselves as exceptional nations, having a national calling to better the condition of mankind. The question of the relationship between the international and domestic legal orders has long been one of great theoretical interest. The traditional theoretical framework for describing and analyzing the relationship between international law and domestic law posits two types of relationships: monism, where international law and domestic law comprise one unitary system of law, and dualism, where international law and domestic law comprise two distinct legal orders. Monism, especially the version that regards international law as having priority over domestic law, expresses an internationalist, cooperative, world-community orientation, while dualism expresses a state-centered, state sovereignty perspective. It has been suggested that the monism- dualism approach to the question of the relationship of international law to domestic law is no longer useful, since the reality of the matter, which is how national constitutions and the decisions of domestic courts deal in actual practice with the application of international law in domestic courts, can no longer be profitably described or analyzed within the monism-dualism conceptual framework. Nevertheless, as advocated by Patrick Daillier and Serge Sur, two prominent French international legal scholars and co-authors of principal treatises on public international law, conceptual clarity and coherence are important in order to articulate accurately the contemporary relationship between international and domestic legal orders, and to allow for the clarification of the political and legal values underlying different relational choices. In adopting a monist or dualist perspective, a legal system in effect selects the basic orientation of its courts to international norms and decisions. That orientation then serves as a guide to courts in establishing presumptions and default rules and providing a principled basis for directly applying or not applying international law or giving effect to the decisions of international tribunals. The monism-dualism dichotomy is best viewed not as descriptive of what courts do, but rather as prescriptive, what courts should do, or at least what their fundamental policy orientation ought to be. In this sense it is valuable, if not indispensable, to bringing coherence and direction to this area of the law and to providing principled guidance to judges as they grapple with specific cases.
Martin A. Rogoff,
Application of Treaties and Decisions of International Tribunals in the United States and France: Reflections on Recent Practice,
Me. L. Rev.
Available at: https://digitalcommons.mainelaw.maine.edu/mlr/vol58/iss2/8