Francioni, Francesco --- "Judicial Models of International Law Enforcement" [2012] ELECD 493; in Cafaggi, Fabrizio (ed), "Enforcement of Transnational Regulation" (Edward Elgar Publishing, 2012)

Book Title: Enforcement of Transnational Regulation

Editor(s): Cafaggi, Fabrizio

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781781003725

Section: Chapter 5

Section Title: Judicial Models of International Law Enforcement

Author(s): Francioni, Francesco

Number of pages: 15

Extract:

5. Judicial models of international law
enforcement1
Francesco Francioni


1. A MODERN APPROACH TO AN OLD PROBLEM
For more than a century the issue of international law enforcement by
domestic courts has been monopolised by the debate over monism and
dualism as theoretical models for conceptualising the relationship between
international law and domestic law. Triepel2 and Anzilotti,3 the champions
of legal positivism at the end of the 19th century and in the first half of the
20th century, postulated a separation of the two legal orders and the
necessity of a formal incorporation of international law in municipal law as
a condition for domestic courts to enforce the former. This construction
was the result of a normative perspective in which domestic legal orders are
original, independent and self-sufficient, and therefore `separate' from
international law. This conception was reinforced by judicial practice and
especially by some decisions of international courts.4 At the opposite end,
proponents of monism followed in the footsteps of natural law, which by
definition presupposes a universal idea of the law and a coherent and
homogeneous legal order with no place for relativism. In its modern
version, monism has found its most accomplished form in the pure theory
of law of Hans Kelsen where the universe of law responds to the formal


1
This chapter elaborates and updates ideas already expressed by the author in
his article `International Law as a Common Language for National Courts', 36
Texas Int. L. J., 2001, pp. 587ff.
2
...