| Project/Area Number |
14520035
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| Research Category |
Grant-in-Aid for Scientific Research (C)
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| Allocation Type | Single-year Grants |
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| Section | 一般 |
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| Research Field |
International law
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| Research Institution | The University of Tokyo |
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Principal Investigator |
IWASAWA Yuji The University of Tokyo, Graduate School of Law and Politics, 教授 (20114390)
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| Project Period (FY) |
2002 – 2005
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| Project Status |
Completed (Fiscal Year 2005)
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| Budget Amount *help |
¥2,800,000 (Direct Cost: ¥2,800,000)
Fiscal Year 2005: ¥500,000 (Direct Cost: ¥500,000)
Fiscal Year 2004: ¥700,000 (Direct Cost: ¥700,000)
Fiscal Year 2003: ¥700,000 (Direct Cost: ¥700,000)
Fiscal Year 2002: ¥900,000 (Direct Cost: ¥900,000)
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| Keywords | International Law and National Law |
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| Research Abstract |
The concept of domestic applicability originated in the United States. It is now used commonly in States where treaties have the domestic force of law. European Community law has adopted the concept and has made significant contribution to its development. The investigator analyzed the definition and usage in US law and EC law and put forward a general theory. In the report on the research results, the general theory is outlined.
Many authors believe that creation of individual rights and obligations is a necessary element of the concept of domestic applicability. However, creation of individual rights and obligations and direct applicability are distinct questions. Domestic applicability should be defined as capable of being directly applied without the need of further measures. Domestic applicability and domestic legal force are often confused but they must be distinguished. In order to be applied directly in domestic law, international law must have the domestic legal force. Thus, domestic legal force is a necessary condition but not a sufficient condition of domestic applicability. Many authors believe that the intention of the parties determines whether international law is directly applicable and that it is a question of international law. However, efforts to find such an intent prove futile, because parties to a treaty seldom indicate such an intent in a treaty. In States where international law acquires the domestic legal force, international law should be presumed to be directly applicable. It is a question of domestic law to determine whether international law is directly applicable. Precision of an international norm is often considered as decisive in determining its domestic applicability. The question of domestic applicability arises also with respect to acts of international organizations and international courts.
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