Law In Domestic Courts Research Articles

International law in domestic courts in an era of populism

Abstract This article examines the manner in which the rise of populism affects the use of international law by domestic courts. It argues that populism may have a negative effect on the willingness of domestic courts to refer to international law. It further argues that although such response is understandable, it is regrettable, since incorporation of international law into domestic court rulings can serve as a counter-populism measure. Maintaining international law as part of the domestic legal discourse is particularly important in a populist setting, for two reasons. First, where constitutionalism is overtaken by populists, international law can serve as an important source on which courts can draw to protect human rights. In addition, referral, analysis, and application of international law are means of maintaining pluralism in legal and public debate and, accordingly, enhancing democracy.

Enforcing International Climate Change Law in Domestic Courts: A New Trend of Cases for Boosting Principle 10 of the Rio Declaration?

Author(s): Colombo, Esmeralda | Abstract: This paper takes international climate change law norms as a given, and instead turns to their implementation in domestic courts as one of the possible enforcement strategies for advancing the protection of the climate. The enforcement of climate change law is overviewed at the international law level and portrayed in the context of domestic courts. In order to flesh out such a proposal as the latter, the viability of procedural rights, as embodied in Principle 10 of the Rio Declaration, is assessed and compared with substantive rights as a possible leverage of enforcement in the sphere of climate change law. Such leverage is pictured out within the first two judicial decisions applying international law for the protection of the climate in domestic courts, namely the Urgenda decision from the Netherlands, and the Leghari decision from Pakistan. The legacy of each of those is evaluated under the prong of judicial globalization and international climate policy.The paper argues that the interpretive techniques deployed in this strand of cases are poised to further advance international climate change law, not only on a substantive plane, but also on a procedural plane, especially with regard to the standing of individuals and NGOs. Indeed, the paper holds such a judicial turn to be a viable enforcement mechanism in the field of climate change law and policy, especially in the aftermath of the 2015 Paris Agreement.

Intimations of Unconstitutionality: The Supremacy of International Law and Judgment 238/2014 of the Italian Constitutional Court

Judgment 238/2014 of the Italian Constitutional Court reopens the debate on the extent of the immunity enjoyed by states for violations of jus cogens. The decision, which questions the authority of the ICJ's 2012 judgment in Germany v Italy, could certainly have effects on the formation of customary international law. In addition, it revives the discussion on the relationship between national and international law and on the supremacy of the latter over the former, especially if read in light of the previous Medellin and Kadi I decisions. Judgment 238/2014 is an opportunity to reappraise the role played by international law in domestic courts, particularly in cases where international law conflicts with core domestic constitutional values.

The Use of International Law by Domestic Tribunals in the Caribbean in Death Penalty Cases

International law has become increasingly relevant to decision-making in national courts. It provides judges with access to a vast body of legal material on almost every topic. However national tribunals face several challenges with respect to the use of international law. They often lack familiarity with international legal sources, both in terms of how to access relevant rules and how to assess their value or weight. This chapter suggests that the traditional common law rules regarding use of international law within the domestic judicial forum are precise, comprehensive and comprehensible. It explores the possible misapplication of these rules by some of the highest judges in the Commonwealth Caribbean in one of the most controversial areas of jurisprudence - cases dealing with the death penalty. It is argued that many, if not all, of the kinds of progressive developments sought by regional courts, including the Judicial Committee of the Privy Council and the Caribbean Court of Justice could have been achieved without infringing the rules regarding use of international law in domestic courts. The final sections of the chapter suggest a number of ways in which international law can properly be used in domestic courts, including the Caribbean Court of Justice, in compliance with the existing common law rules.

Port State Jurisdiction in New Zealand: The Problem with Sellers

This article discusses the decision of the New Zealand Court of Appeal in Sellers v Maritime Safety Inspector [1999] 2 NZLR 44. It is not critical of the Court's approach to the use of international law in domestic courts, but instead argues that the decision represents an incorrect view of international law regarding a port state's jurisdiction over visiting foreign vessels. It argues that the Court was wrong to characterise New Zealand's maritime safety agency's use of s 21 of the Maritime Transport Act 1994 as an attempt to regulate such vessels on an extraterritorial basis, and that port states do possess the jurisdiction to introduce unilateral measures of the kind promoted by the agency in that case. The article argues that the decision in Sellers is exercising a negative impact over New Zealand's maritime regulatory efforts and that Parliament should address the issue by way of amending legislation.

Andre Nollkaemper. National Courts and the International Rule of Law. Oxford: Oxford University Press, 2011. Pp. 337. 75.00 (pbk 24.99). ISBN:9780199236671.

The book under review concludes research on the practice of domestic courts begun by the author over 10 years ago as part of a project entitled International Law in Domestic Courts. As pointed out in the preface, international doctrine lacked a systematic analysis of the domestic judicial application of international law, one based not on a theorization of relations between domestic law and international law but on an accurate analysis of data emanating from the decisions of domestic courts.

International Law in Domestic Courts: Rule of Law Reform in Post-Conflict States

States that are in transition after a violent conflict or an authoritarian past face daunting challenges in (re)establishing the rule of law. This paper contains the introduction and the conclusion of a volume that empirically examines several recent attempts which states have made to buttress the rule of law by importing international law into the gaps created in domestic law in a transition period. More in particular, the volume considers the practice of empowering national courts to give effect to international law in order to protect the rule of law. The case-studies cover such diverse situations as Iraq, Afghanistan, the Balkans, Nepal, and Rwanda. The paper addresses the two dynamics of law reform. On the one hand, much of the literature on rule of law promotion by states and international institutions takes an ‘exporting’ approach, focussing on activities of international institutions to bolster the role of international law at national level. On the other hand, the effect of such strategies, both in legal and practical terms, depends on the ‘receiving’ state.

National Legislation for Prosecution of International Crimes in Kenya

The rapid development of international criminal law and the demand to put an end to the culture of impunity has led to an increase in the prosecution of international crimes. In recent times, while prosecutions have often been carried out by ad hoc tribunals, special courts and the International Criminal Court, some countries have carried out prosecutions through their national courts. In the latter case, the successful prosecution of international crimes will depend on the country's legal framework and judicial capacity to handle such prosecutions. Kenya is a country that is currently grappling with accusations of international crimes, following the alleged offences committed during the violence that followed the 2007 election. This article discusses the Kenyan criminal justice system against the background of implementation of international criminal law in domestic courts, and assesses Kenya's ability to deal with these allegations.

International Law in Domestic Courts: A Conflict of Laws Approach

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On the Application of European Law in (Not Only) the Courts of the New Member States: ‘Don’t Do as I Say’?

In the classical narratives of the story called European integration, national judges are said to have a ‘mandate’ under European law: they are ‘empowered’ by EC law or, in the less thrilling versions of the story, they simply become ‘Community judges’. Not only are national judges obliged to apply substantive EC law, they are also requested to apply it in the way required by the Court of Justice. How, precisely, national judges are asked to apply EC law in domestic courts has traditionally been portrayed through the case law of the Court of Justice; not much attention has been paid to the reality in national courts. Over the years, the case law of the Court of Justice has created an image of a veritable European judicial Hercules: a judge who reads in many of the official languages of the European Union; who knows not only all the relevant national and European law, which he or she appliesex officio, but also engages in comparative interpretation of the law; who identifies him- or herself with the Europeanteloswhich he or she is applying on the national level; and so on.

Enforcement of Occupation Law in Domestic Courts: Issues and Opportunities

A review of the different occupation situations evidences that these situations are characterized by a poor record of compliance with the law of occupation. The international humanitarian law (IHL) conventional enforcement mechanisms have not been activated and compliance with the law has almost exclusively relied upon judicial processes. However, since enforcement of IHL through adjudication operates mainly under the principles of criminal individual responsibility, this course of action has been of little relevance for occupation law insofar as the latter contains only few provisions the violations of which amount to graves breaches of IHL or other serious violations thereof. Disrespect for occupation law barely gives rise to criminal proceedings and therefore excessive focus on the latter procedures constitutes an impediment to the effective enforcement of this corpus juris. In addition, actual IHL mechanisms designed to induce compliance with occupation law do not allow for the appropriate control of the administrative and legislative acts of the occupant. In light of the contemporay forms of occupation and the tendency to broadly interpret the powers conferred on the occupant by IHL, administrative and legislative acts of the occupant should not be left without legal review. The present Article investigates the role and legal entitlement of different domestic courts in this respect after having previously examined the obstacles to exercise of jurisdiction by domestic courts with regard to the measures undertaken by the occupant within the framework of Article 43 of The Hague Regulations of 1907. The author argues that, despite their usefulness, domestic courts do not actually provide an appropriate course of action for legal review of the administrative and legislative measures promulgated by the occupying power.

International Law in Domestic Courts

International Law in Domestic Courts

ENFORCEMENT OF INTERNATIONAL HUMAN RIGHTS LAW BY DOMESTIC COURTS: A THEORETICAL AND PRACTICAL STUDY

There is a substantial body of norms of international human rights law, both in international conventions and customs. However, the international mechanism to enforce human rights world wide is rather weak. On the other hand, domestic courts have remained largely unutilized as concerns enforcing international human rights law. This is primarily owing to different state perceptions concerning the interrelation between international law and municipal law, and the resultant diverging views they take to implement norms of international law in the state territories. This tends to weaken the international human rights enforcement regime. There is a need to emphasize the legal and binding nature of international obligations and to involve domestic courts to ensure compliance. The importance of and contemporary movement for the protection and promotion of human rights has further underlined this need. The increasing recognition of individuals as subjects of international law, especially international human rights law, has added new dimension. Invoking international human rights law in domestic courts, therefore, merits special consideration. Factors of state sovereignty, the dualist view on the relation between international law and municipal law and implementing legislation, appear to be impediments for direct application of international human rights law, for it is argued that as long as treaty-making is primarily executive prerogative, the legislature ought not to be by-passed in implementing treaties. However, to overcome these impediments, it is suggested that legislative approval precede ratification of treaties, or legislature effectively participate in the process of ratification. This will benefit the so-called ‘democratic deficit’ of the process of treaty-making, and facilitate direct application of international human rights law by domestic courts. Many countries of the world, especially in Continental Europe and Latin America, which hold a monistic view, are increasingly opting for this model of human rights compliance. This would greatly enhance the protection and promotion of human rights.

Using International Law in Domestic Courts – Part II: Undomesticated Treaties

Using International Law in Domestic Courts – Part II: Undomesticated Treaties

Using International Law in Domestic Courts – Part I: Domesticated Treaties

(2003). Using International Law in Domestic Courts – Part II: Undomesticated Treaties. Judicial Review: Vol. 8, No. 3, pp. 138-143.

International Law in Domestic Courts: Some Lessons from the Prize Court in the Great War

International Law in Domestic Courts: Some Lessons from the Prize Court in the Great War

Implementing International Law in Domestic Courts: The Kosovo Case

Implementing International Law in Domestic Courts: The Kosovo Case

The UNIDROIT Principles and Transnational Law

Summing up the results of an in-depth analysis of the so-called lex mercatoria, Felix DASSER observed that the real question is not “lex mercatoria: yes or no?” but “lex mercatoria: when and how?” 1 In other words, fascinating as it may be to discuss whether the modern lex mercatoria represents a veritable legal order different from and independent of the various domestic laws on the one side and public international law on the other, what ultimately matters is the extent to which States nowadays permit parties to an international commercial contract, by referring to the lex mercatoria, to escape the application of any domestic law. What has been said of the lex mercatoria may well be applied to “transnational law” in general, i.e. to all kinds of principles and rules of non-national or a-national character used in international business practice as an alternative to domestic law. And indeed the International Law Association, on the occasion of an in-depth study of the role of transnational rules in international commercial arbitration carried out in the early 1990s, quite rightly devoted little if any attention to the theoretical question of the precise nature of such rules and whether they represent an independent legal order, and focused on the eminently practical issue of the validity and enforceability of awards based on transnational law in domestic courts.2 Whether the UNIDROIT Principles of International Commercial Contracts are part of transnational law depends of course on the meaning one intends to give to this latter notion. If one adopts a narrow definition whereby transnational law basically consists of generally recognised principles of law and trade usages, it may be difficult to consider the UNIDROIT Principles as a whole as falling in one category or the other.