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The problematic relationship between customary international law and the domestic courts

Cassidy, Julie 2009, The problematic relationship between customary international law and the domestic courts, Journal of applied law and policy, vol. consolidated, pp. 119-146.

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Title The problematic relationship between customary international law and the domestic courts
Author(s) Cassidy, Julie
Journal name Journal of applied law and policy
Volume number consolidated
Start page 119
End page 146
Publisher Curtin Business School
Place of publication Perth, W.A.
Publication date 2009
ISSN 1836-6953
Summary The relationship between international law and domestic law has long been problematic. This article considers in particular the enforcement of customary international law through an analysis of judicial practice in England and Australia. The examination of the jurisprudence suggests that domestic judges often feel uncomfortable when asked to apply international law in the domestic courts and struggle to somehow justify its use. This has led to an inconsistency in judicial practice in the application of international law in jurisdictions such as Australia. However, ultimately the monist theory that recognizes that customary international law automatically flows into the domestic law appears to be reflected in an emerging trend in judicial practice in the common law judicial systems under consideration. However, the article suggests that the English courts now see international crimes as an exception to that theory and require domestic legislative transformation. Ultimately the article concludes that the municipal courts provide an important forum for the enforceability of customary international law, including human rights norms.
Language eng
Field of Research 180116 International Law (excl International Trade Law)
Socio Economic Objective 970118 Expanding Knowledge in Law and Legal Studies
HERDC Research category C1 Refereed article in a scholarly journal
Copyright notice ©2009, JALAP
Persistent URL http://hdl.handle.net/10536/DRO/DU:30023876

Document type: Journal Article
Collections: Faculty of Business and Law
Law
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