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The Practice of International and National Courts and the (De-)Fragmentation of International Law

The Practice of International and National Courts and the (De-)Fragmentation of International Law
Author: Ole Kristian Fauchald
Publisher: Bloomsbury Publishing
Total Pages: 382
Release: 2014-10-01
Genre: Law
ISBN: 1847319157

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In recent decades there has been a considerable growth in the activities of international tribunals and the establishment of new tribunals. Furthermore, supervisory bodies established to control compliance with treaty obligations have adopted decisions in an increasing number of cases. National courts further add to the practice of adjudication of claims based on international law. While this increasing practice of courts and supervisory bodies strengthens the adjudicatory process in international law, it also poses challenges to the unity of international law. Most of these courts operate within their own special regime (functional, regional, or national) and will primarily interpret and apply international law within the framework of that particular regime. The role of domestic courts poses special challenges, as the powers of such courts to give effect to international law, as well as their actual practice in applying such law, largely will be determined by national law. At the same time, both international and national courts have recognised that they do not operate in isolation from the larger international legal system, and have found various ways to counteract the process of fragmentation that may result from their jurisdictional limitations. This book explores how international and national courts can, and do, mitigate fragmentation of international law. It contains case studies from international regimes (including the WTO, the IMF, investment arbitration and the ECtHR) and from various national jurisdictions (including Japan, Norway, Switzerland and the UK), providing a basis for conclusions to be drawn in the final chapter.


The Constitutionalization of International Law

The Constitutionalization of International Law
Author: Jan Klabbers
Publisher: OUP Oxford
Total Pages: 414
Release: 2011-04-07
Genre: Law
ISBN: 0191615919

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The book examines one of the most debated issues in current international law: to what extent the international legal system has constitutional features comparable to what we find in national law. This question has become increasingly relevant in a time of globalization, where new international institutions and courts are established to address international issues. Constitutionalization beyond the nation state has for many years been discussed in relation to the European Union. This book asks whether we now see constitutionalization taking place also at the global level. The book investigates what should be characterized as constitutional features of the current international order, in what way the challenges differ from those at the national level and what could be a proper interaction between different international arrangements as well as between the international and national constitutional level. Finally, it sketches the outlines of what a constitutionalized world order could and should imply. The book is a critical appraisal of constitutionalist ideas and of their critique. It argues that the reconstruction of the current evolution of international law as a process of constitutionalization -against a background of, and partly in competition with, the verticalization of substantive law and the deformalization and fragmentation of international law- has some explanatory power, permits new insights and allows for new arguments. The book thus identifies constitutional trends and challenges in establishing international organisational structures, and designs procedures for standard-setting, implementation and judicial functions. This paperback edition features the authors' discussion of this book on the EJIL Talks blog.


Fragmentation of International Law

Fragmentation of International Law
Author: United Nations. International Law Commission
Publisher:
Total Pages: 306
Release: 2007
Genre: Conflict of laws
ISBN: 9789521023378

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Separating Powers: International Law before National Courts

Separating Powers: International Law before National Courts
Author: David Haljan
Publisher: Springer Science & Business Media
Total Pages: 335
Release: 2012-10-30
Genre: Law
ISBN: 9067048585

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The more international law, taken as a global answer to global problems, intrudes into domestic legal systems, the more it takes on the role and function of domestic law. This raises a separation of powers question regarding law–making powers. This book considers that specific issue. In contrast to other studies on domestic courts applying international law, its constitutional orientation focuses on the presumptions concerning the distribution of state power. It collects and examines relevant decisions regarding treaties and customary international law from four leading legal systems, the US, the UK, France, and the Netherlands. Those decisions reveal that institutional and conceptual allegiances to constitutional structures render it difficult for courts to see their mandates and powers in terms other than exclusively national. Constitutionalism generates an inevitable dualism between international law and national law, one which cannot necessarily be overcome by express constitutional provisions accommodating international law. Valuable for academics and practitioners in the fields of international and constitutional law.


The Interpretation of International Law by Domestic Courts

The Interpretation of International Law by Domestic Courts
Author: Helmut Philipp Aust
Publisher: Oxford University Press
Total Pages: 430
Release: 2016-01-21
Genre: Law
ISBN: 0191059420

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The Interpretation of International Law by Domestic Courts assesses the growing role of domestic courts in the interpretation of international law. It asks whether and if so to what extent domestic courts make use of the international rules of interpretation set forth in the Vienna Convention on the Law of Treaties. Given the expectation that rules of international law are to have a uniform interpretation and application throughout the world, the practice of domestic courts is considerably more diverse. The contributions to this book analyse three key questions: first, whether international law requires a coherent interpretive approach by domestic courts. Second, whether a common or convergent methodological outlook can be found in domestic court practice. Third, whether a common interpretive approach is desirable from a normative perspective. The book identfies a considerable tension between international law's ambition for universal and uniform application and a plurality of different approaches. This tension between unity and diversity is analysed by a group of leading international lawyers from a wide range of geographical, disciplinary and methodological approaches. Drawing on domestic practice of number of jurisdictions including, among others, Colombia, France, Japan, India, Israel, Mexico, South Africa, the United Kingdom and the United States, the book puts the interpretative practice of domestic courts in a wider context. Its chapters offer doctrinal, practical as well as theoretical perspectives on a central question for international law.


A Farewell to Fragmentation

A Farewell to Fragmentation
Author: Mads Tønnesson Andenæs
Publisher: Cambridge University Press
Total Pages: 605
Release: 2015-10-09
Genre: Law
ISBN: 1107082099

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Exploring the role of the International Court of Justice in the re-convergence of international law, this book contends that the court's jurisprudence is transforming traditional concepts such as sovereignty, rights and jurisdiction and in so doing is leading a trend towards the reunification of international law.


National Courts and the International Rule of Law

National Courts and the International Rule of Law
Author: André Nollkaemper
Publisher: Oxford University Press
Total Pages: 384
Release: 2012
Genre: Law
ISBN: 0191652822

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This book explores the way domestic courts contribute to the maintenance of theinternational of law by providing judicial control over the exercises of public powers that may conflict with international law. The main focus of the book will be on judicial control of exercise of public powers by states. Key cases that will be reviewed in this book, and that will provide empirical material for the main propositions, include Hamdan, in which the US Supreme Court reviewed detention by the United States of suspected terrorists against the 1949 Geneva Conventions; Adalah, in which the Supreme Court of Israel held that the use of local residents by Israeli soldiers in arresting a wanted terrorist is unlawful under international law, and the Narmada case, in which the Indian Supreme Court reviewed the legality of displacement of people in connection with the building of a dam in the river Narmada under the ILO Indigenous and Tribal Populations Convention 1957 (nr 107). This book explores what it is that international law requires, expects, or aspires that domestic courts do. Against this backdrop it maps patterns of domestic practice in the actual or possible application of international law and determines what such patterns mean for the protection of the international rule of law.


Essays on International Law and Practice

Essays on International Law and Practice
Author: Shabtai Rosenne
Publisher: Martinus Nijhoff Publishers
Total Pages: 701
Release: 2007
Genre: Law
ISBN: 9004155368

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This volume collects papers written by Shabtai Rosenne in the course of his distinguished career on various topics, primarily in the areas in which he is best known for his expertise: international litigation and courts, the law of treaties, the law of the sea and state responsibility. His writing on fact-finding before the International Court of Justice, treaty succession, codification and the framework agreement as the basis for the jurisdiction of the ICJ in particular remain as interesting, timely and essential today as when they were first written. The collection is accompanied by a table of cases, a table of treaties and an index for easy reference.


The Right to Food and the World Trade Organization's Rules on Agriculture

The Right to Food and the World Trade Organization's Rules on Agriculture
Author: Rhonda Ferguson
Publisher: BRILL
Total Pages: 305
Release: 2018-01-11
Genre: Law
ISBN: 9004345302

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In The Right to Food and the World Trade Organization’s Rules on Agriculture, Rhonda Ferguson explores the relationship between the right to food and agricultural trade. The analysis is situated within the context of debates surrounding the fragmentation of international law.