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Implementing International Law - The Role of Domestic Courts: Some Reflections on the United States Experience

Published online by Cambridge University Press:  21 July 2009

Richard Falk
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Extract

There are, of course, a variety of arenas available for the implementation and expansion of international law. The UN Decade on International Law provides a natural occasion for assessing their relative utility at this stage of international relations. Often the emphasis is placed on procedural steps that encourage states to use judicial arenas for third-party application of international law. In this regard great attention is given to the encouragement of steps towards the formal acceptance by governments of the compulsory jurisdiction of the International Court of Justice, and to the insertion in treaties of compromissory clauses and dispute settlement procedures that entail a legal duty to resolve conflict through the impartial application of international law, and the related obligation to respect the outcome of such an agreed process. For major disputes between states such an app roach to the application of international law remains highly desirable, and needs to be encouraged in every possible way. Extending the domain of compulsory jurisdiction to address both disputes of regionaland inter-regional scope also tends to extend the protection of international law to weaker and more vulnerable states, especially if a stronger tradition of compliance can be established.

Type
Articles
Information
Leiden Journal of International Law , Volume 3 , Issue 3: SPECIAL ISSUE 1990: THE UNITED NATIONS DECADE OF INTERNATIONAL LAW: Reflections on International Dispute Settlement , December 1990 , pp. 67 - 76
Copyright
Copyright © Foundation of the Leiden Journal of International Law 1990

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References

1 See, e.g., E. Jouve, Le Droit des Peuples (1986); J. Crawford (ed.), The Rights of Peoples (1988); R.Falk, Human Rights and State Sovereignty 33–62, 185–194 (1981).

2 For one effort to do this see R. Falk, The Role of Domestic Courts in the International Legal Order (1964).

3 For a comprehensive and persuasive analysis along these lines see H.H. Koh, The National Security Constitution (1990).

4 United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936).

5 Cf. George, L.N., Tocqueville's Caveat: Centralized Executive Foreign Policy & American Democracy,22 Polity 419–439 (1990).CrossRefGoogle Scholar

6 For a general argument along these lines see Henkin, L., Constitutionalism, Democracy, and Foreign Affairs 69–106 (1990).Google Scholar

7 Id. at 72.

8 Id. at 73.

9 Id. at 78.

10 For perceptive discussions of these issues See a pair of articles by Ely, J.H. entitled The American War in Indochina, Part I: The (Troubled) Constitutionality of the War They Told Us About and The American Warinlndochina, Part II: The Unconstitutionality of the War They Didňt Tell Us About, 42 Stanford Law Review 876–926,1092–1148 (1989)CrossRefGoogle Scholar. See also H.H. Koh, supra note 3, on parallel issues raised by the Irancontra disclosures.

11 A comprehensive contribution is F.A. Boyle, Defending Civil Resistance Against the Reagan Administration Under International Law (1987).