After discussing the conceptual framework in order to delimit the topic with respect in particular to the issue of monism/dualism (para. 1), the article argues that the doctrine of direct effect rests on two constitutive elements: the intention of the international provision to govern relations with individuals and its substantive completeness (selfexecuting character) (para. 2). Based upon practice, the article also argues that the process of ascertaining whether a provision has direct effect is grounded on a diachronic three-stage mechanism of approximation in which an essential complementary role is played by domestic law (paras. 2.1, 2.2 and 2.3). It then contends that, once assessed, the direct effect requires national courts to apply the international provision, according to the maxim iura novit curia. As a result, the domestic body is bound to have recourse to that mechanism in such a way as to ensure the most effective application of the international provision (para. 3). Furthermore, under these circumstances, direct effect is an inherent character of the international provision — a tool to enforce it before national courts. From a different perspective, the article underscores that the primacy of an international provision enjoying direct effect over incompatible domestic law is not a specific feature of the doctrine of direct effect (para. 4). The conclusions provide a tentative contribution to the doctrine of direct effect of self-executing provisions, conceived as a category of the international rule of law (para. 5).

Baratta, R. (2020). L’EFFETTO DIRETTO DELLE DISPOSIZIONI INTERNAZIONALI SELF-EXECUTING. RIVISTA DI DIRITTO INTERNAZIONALE, 2020(1), 4-48.

L’EFFETTO DIRETTO DELLE DISPOSIZIONI INTERNAZIONALI SELF-EXECUTING

Baratta Roberto
2020

Abstract

After discussing the conceptual framework in order to delimit the topic with respect in particular to the issue of monism/dualism (para. 1), the article argues that the doctrine of direct effect rests on two constitutive elements: the intention of the international provision to govern relations with individuals and its substantive completeness (selfexecuting character) (para. 2). Based upon practice, the article also argues that the process of ascertaining whether a provision has direct effect is grounded on a diachronic three-stage mechanism of approximation in which an essential complementary role is played by domestic law (paras. 2.1, 2.2 and 2.3). It then contends that, once assessed, the direct effect requires national courts to apply the international provision, according to the maxim iura novit curia. As a result, the domestic body is bound to have recourse to that mechanism in such a way as to ensure the most effective application of the international provision (para. 3). Furthermore, under these circumstances, direct effect is an inherent character of the international provision — a tool to enforce it before national courts. From a different perspective, the article underscores that the primacy of an international provision enjoying direct effect over incompatible domestic law is not a specific feature of the doctrine of direct effect (para. 4). The conclusions provide a tentative contribution to the doctrine of direct effect of self-executing provisions, conceived as a category of the international rule of law (para. 5).
Baratta, R. (2020). L’EFFETTO DIRETTO DELLE DISPOSIZIONI INTERNAZIONALI SELF-EXECUTING. RIVISTA DI DIRITTO INTERNAZIONALE, 2020(1), 4-48.
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Utilizza questo identificativo per citare o creare un link a questo documento: http://hdl.handle.net/11590/385494
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