The domestic application of customary international law : a practical and comparative analysis

Abstract

Chapter 1: The creation of customary international law is linked with domestic law and domestic practice. Customary international law is a source of international obligations, and is part of the law capable of rendering a State internationally responsible. This has an impact on domestic law and also allows, or provides a reason, for the domestic application of customary international law. Thus a State's conformity to customary international law from within municipal law may increase the possibilities for a respect of those international obligations. The method chosen for such domestic application, if there is to be any domestic application at all, is entirely up to the State's discretion. Chapter 2: Customary international law has the potential to be applied in a municipal legal order even where States appear to reject a law which does not emanate from the domestic legislative body. Constitutions are one of the principal sources for CIL to be applied domestically, though they are not indispensable for this task. The Constitution may provide a purely symbolical provision or else even go as far as providing direct rights, based on customary international law, to individuals, which could have the power to over-ride conflicting domestic law. Jus cogens is often in the same position as customary international law when considering its application in the internal legal order, though different due to its particular characteristics. Chapters 3, 4 and 5 focus on three States, being respectively, Sweden, the United States of America, and Malta. Besides dealing with the position of customary international law in the municipal legal order of each State, the focal chapters help to discuss particular issues relating to the topic at hand. Chapter 3 illustrates the stance of international customary human rights and depicts the near impossible situation of transforming all the rules of customary international law into domestic law. It also provides an example of a State which makes no reference to customary international law in its Constitutional provisions and has no official position regarding such source of international law. Chapter 4 distinguishes between customary international law being recognised as 'law of the land' and customary international law providing a cause of action for plaintiffs. There also is a study of the peculiar problem caused by the federal position, as well as reference to domestic statutes intersecting with international law. Chapter 5 discusses the difference between permissive and mandatory customs, and between the domestic application and domestic validity of customary international law, as well as providing an example of a statute transforming customary international criminal law. Chapter 6 is the concluding chapter, providing final thoughts and a proposal for a possible legislative provision in the area concerning the domestic application of customary international law.