Domestic Application of Treaties (Second Edition)

The Oxford Guide to Treaties (Hollis, ed.) (2nd ed. 2020)

Santa Clara Univ. Legal Studies Research Paper

35 Pages Posted: 13 Aug 2020

See all articles by David L. Sloss

David L. Sloss

Santa Clara University - School of Law

Date Written: July 13, 2020

Abstract

Domestic courts today play a prominent role in treaty application. Traditional scholarship on the domestic application of treaties has focused on the distinction between monist and dualist legal systems. Part I of this chapter explains that distinction. Although the monist-dualist framework helps illuminate important formal differences among States, Part I suggests that scholarly preoccupation with the formal distinction between monism and dualism tends to obscure key functional differences among States.

Hence, the remainder of the chapter adopts a functional approach, focusing primarily on the role of domestic courts in promoting compliance with treaty obligations and protecting treaty-based private rights. Part II explains the distinction between horizontal, vertical, and transnational treaty provisions. Part III addresses the functional distinction between nationalist and transnationalist approaches to judicial application of treaties. Part IV discusses the crucial role of domestic courts in promoting compliance with treaty obligations, especially transnational and vertical treaty obligations.

The functional analysis in Parts II to IV shows that domestic courts play a key role in protecting private rights under transnational treaty provisions and promoting compliance with those provisions, but they play virtually no role in promoting compliance with horizontal treaty provisions. This is generally true for both monist and dualist States. The story with respect to vertical treaty provisions is more complicated. When domestic courts adopt a transnationalist approach, they play a key role in protecting private rights under vertical treaty provisions and promoting compliance with those provisions. When domestic courts adopt a nationalist approach, vertical treaty provisions may be under-enforced. There does not appear to be any significant correlation between a State’s formal classification as monist or dualist and the tendency of domestic courts in that State to function in a nationalist or transnationalist mode.

Keywords: treaties, domestic application, treaty compliance, private rights, domestic courts, monism and dualism

JEL Classification: K33

Suggested Citation

Sloss, David L., Domestic Application of Treaties (Second Edition) (July 13, 2020). The Oxford Guide to Treaties (Hollis, ed.) (2nd ed. 2020), Santa Clara Univ. Legal Studies Research Paper , Available at SSRN: https://ssrn.com/abstract=3650400

David L. Sloss (Contact Author)

Santa Clara University - School of Law ( email )

500 El Camino Real
Santa Clara, CA 95053
United States

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