Comparative Reasoning in International Courts and Tribunals. By Daniel Peat

Abstract

There is no dearth in academic literature of both individual and collective explorations of the theme of interpretation. After all, interpretation is not only ubiquitous but also central to the continued existence and relevance of any legal rule. The International Law Commission (‘ILC’) as well, is no stranger to such forays into the mercurial lands of interpretation. A most recent example of this is when the ILC added to its program of work the topic ‘subsequent agreements and subsequent practice in relation to interpretation of treaties’.1 With so many articles and publications on interpretation, one would wonder if there is anything truly novel to be said on interpretation. In Comparative Reasoning in International Courts and Tribunals, Peat achieves precisely that. In this book, one that the author playfully states in his preface ‘is not the book [he] intended to write’, Peat undertakes an examination of the role of domestic law in international jurisprudence within the context of interpretation. The term ‘comparative reasoning’ is employed in its ‘narrow’ sense as referring ‘solely to domestic legislation and regulations and the judgments of domestic courts’ (9). The focus is on when and under what circumstances international courts and tribunals have resorted to this method of ‘comparative reasoning’, ie when they have referred to domestic law while trying to determine the content of an international instrument. Whereas the term ‘comparative reasoning’ may give the impression of a comparison amongst multiple domestic legal systems, that is not always the case. Given the fact that international courts and tribunals, employ ‘comparative reasoning’ in so many different contexts and in such a divergent manner the term is left somewhat open-ended. It is used as an umbrella term to cover the wide spectrum of instances of recourse to domestic law, irrespective of whether such a comparative process indeed entails a comparison between multiple domestic legal systems or rather focuses on the system of one or both of the disputing parties (for the latter, see chapters 3 and 4 in particular). The choice of the international courts and tribunals analysed, as is discussed below, was guided by considerations of whether the structure, context and applicable rules of these bodies were factors that influenced the nature and application of comparative reasoning in their judgments.