00 nollkaemper prelims · th e aim of a rule of law at the international level is so far beyond the...

1Introduction

Th is book systematizes the principles and practices of international law that guide national courts in the protection of the international rule of law. It advances essen-tially three arguments. First, national courts of a substantial number of states (but representing probably not more than half of the states in the world) have become a major institutional force in the protection of the international rule of law. Secondly, these courts operate in a mixed zone that is neither fully national nor fully interna-tional; while the specifi c powers and techniques of these courts depend on and dif-fer according to national law, international law provides an overarching normative framework. Th irdly, the role of national courts contributes to the fragmentation of the international legal order, by creating splits between states where national courts are a major force and those where they are not, between parts of international law that are routinely applied by national courts and those parts that are not, and by a process of judicial auto-interpretation that is inherent in entrusting the protection of the international rule of law to courts that are organs of the very states that they have to control.

1. Th e Quest for the International Rule of Law

Th e quest for the rule of law has set its most ambitious aim yet: the realization of a rule of law beyond the nation-state. Th e pursuit of an international rule of law is not new. It is the raison d’ être of international law to bring power under law.¹ Yet never before have states so expressly embraced the objective of an interna-tional rule of law as they did at the 2005 World Summit and in subsequent United Nations General Assembly Resolutions.² International legal scholarship refl ects the momentum of the topic.³

¹ M Koskeniemmi, ‘Th e Politics of International Law’ (1990) 1 EJIL 77. Th e use of the lan-guage of the rule of law in this context is not new; see eg G Schwarzenberger, ‘Th e Rule of Law and the Disintegration of the International Society’ (1939) 33 AJIL 56; L Brierly, ‘Th e Rule of Law in International Society’ (1936) 7 Nordisk Tidsskrift for International Ret 3.

² See 2005 World Summit Outcome, UNGA Res 60/1 (24 October 2005) UN Doc A/RES/60/1 [134]; UNGA Res 63/128 (15 January 2009) UN Doc A/RES/63/128; UNSC Presidential Statement (22 June 2006) S/PRST/2006/28.

³ See eg J Crawford, ‘International Law and the Rule of Law’ (2003) 24 Adel L Rev 3; P Allott, Towards the International Rule of Law: Essays in Integrated Constitutional Th eory (Cameron May, London, 2005); T Nardin, ‘Th e Rule of Law in International Relations’ (1999) 5 International Legal Th eory 2; S Chesterman, ‘An International Rule of Law?’ (2008) 56 AJCL 331; G Palombella, ‘Th e

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Introduction2

Th e aim of a rule of law at the international level is so far beyond the present situ-ation, that it may seem as overly idealistic. Many states that have embraced the rule of law at home have considered themselves to be at liberty to treat international obligations with disdain. Th e invasion of Iraq in 2003 was only one, albeit a par-ticularly discernible, manifestation of this much wider phenomenon.⁴ Moreover, in numerous states the rule of law at the domestic level remains defective.⁵ It is diffi cult to build an international rule of law if domestic legal orders, on which that rule of law would depend, lack a proper rule of law. It is also doubtful whether states that know no true rule of law will have much of an interest in building an international rule of law, if that would mean anything else than protecting their sovereignty, and whether they have a conceptual apparatus that would enable them to do so, even if they had the desire.

Th ese problems should not discourage attempts to strive for an international rule of law. Th e rule of law at the national level does not provide an adequate framework for the control of public power as it relates to such transnational issues as environmental protection, fi nancial stability, protection of fundamental rights, health, and security. Even though the policies of states in such areas have increas-ingly been made subject to international law, the performance of international obligations often remains problematic. Given the interdependence between inter-national and national law, this defect also undermines the rule of law domestically, for it may mean that acts of states in areas that are mixed international-national, in fact are not ruled by law.⁶

Th is book takes as its starting point that the core elements of the rule of law that are broadly accepted to be applicable domestically likewise should be pursued in international aff airs. Th e commonly made distinction between a rule of law at

Rule of Law Beyond the State: Failures, Promises, and Th eory’ (2009) 7 ICON 442; P Sands and BN Ghrálaigh, ‘Towards an International Rule of Law?’, in M Andena and D Fairgrieve (eds), Tom Bingham and the Transformation of the Law: a Liber Amicorum (Oxford University Press, Oxford, 2009) 461–76; F de Londras, ‘Dualism, Domestic Courts, and the Rule of International Law’ in M Sellers and T Tomaszewski, Th e Rule of Law in Comparative Perspective (Springer, Dordrecht, 2010) 217; G Ferreira and A Ferreira-Snyman, ‘Th e Constitutionalisation of Public International Law and the Creation of an International Rule of Law: Taking Stock’ (2008) 33 S Afr Yrbk Int’ l L 147–66; S Beaulac, ‘Th e Rule of Law in International Law Today’, in G Palombella and N Walker (eds), Relocating the Rule of Law (Hart, Oxford, 2009) 197; S Zifcak, Globalisation and the Rule of Law (Routledge, London, 2005).

⁴ P Allott, ‘State Responsibility and the Unmaking of International Law’ (1988) 29 Harv Int’ l LJ 3, 15 (noting that ‘[i]f international lawyers seek the long-term improvement of international society and the increasing realization of justice, their aim must be to bring together the moral sense of the human being acting in national society and the moral sense of the human being acting in the inter-national society’).

⁵ J Paulsson, ‘Enclaves of Justice’ (2007) 4 TDM, issue 5.⁶ See generally on the intertwining of international and domestic law, L Ferrari Bravo,

‘International and Municipal Law: Th e Complementarity of Legal Systems’ in R St J Macdonald and DM Johnston (eds), Th e Structure and Process of International Law: Essays in Legal Philosophy, Doctrine and Th eory (Martinus Nijhoff , Dordrecht, 1986) 715, 738; H Keller, Rezeption des Völkerrechts (Springer, Berlin, 2003) 6; D Th ürer, ‘Völkerrecht und Landesrecht. Th esen zu einer theoretischen Problemumschreibung’ (1999) 9 Schweizerische Zeitschrift für internationales und europäisches Recht 217; JHH Weiler, ‘Th e Geology of International Law: Governance, Democracy and Legitimacy’ (2004) 64 Heidelberg Journal of International Law 547; M Kumm, ‘Th e Legitimacy of International Law: A Constitutionalist Framework of Analysis’ (2004) 15 EJIL 907.


1. Th e Quest for the International Rule of Law 3

the international level and a rule of law at the national level may be fi rmly rooted in principles of sovereignty.⁷ However, the distinction is misleading, at least to the extent that international law impinges on national law.⁸ Th ough the practical and institutional manifestations of the rule of law may take diff erent shapes and forms at diff erent levels of government, we should not demand less at the interna-tional level than we do at the domestic level. Th e very diffi culty in distinguishing between what is international and what is national would make such demands also rather pointless.⁹

Consider the case of Mike Campbell, a white farmer in Zimbabwe who sought legal protection against threatened expropriation of property. After he unsuccess-fully sought legal protection in Zimbabwe, he prevailed in the Southern African Development Community (SADC) court, which found that the expropriation was discriminatory.¹⁰ His attempt to have that judgment enforced domestically, how-ever, failed. Th e High Court of Zimbabwe found that the judgment could not be enforced because it was contrary to public policy.¹¹ In such cases it is quite mean-ingless to diff erentiate between a rule of law internationally and nationally.

Th e rule of law as a concept that applies to both international and domestic law encompasses at least four elements. First, the exercise of public powers should be based upon authority conferred by law and must be controlled by law.¹² Th is aim underlies the ambition of extending the scope of international law into new areas (also referred to as legalization), an ambition that is central to the UN debate on the international rule of law.¹³ It also underlies the ambition to improve the eff ec-tive performance of international obligations, that is, power should not only on paper but also in fact be controlled by law.¹⁴ It is to be recognized though, that the requirement of full performance raises fundamental questions, for instance since it obscures the question of who makes the law, or because the law may be unjust.¹⁵

⁷ D Jielong, ‘Statement on the Rule of Law at the National and International Levels’ (2007) 6 Chinese Journal of International Law 185, 187–8 (noting that ‘[t]he development of the rule of law in a country is by nature a sovereign matter, and, as such, in principle, allows no interference from any other country or international organization unless with the consent of the country concerned’).

⁸ AA Cançado Trindade, ‘Exhaustion of Local Remedies in International Law and the Role of National Courts’ (1977–78) 17 AdV 333, 366. See also D Dyzenhaus, ‘Th e Rule of (Administrative) Law in International Law’ (2005) 1 IILJ Working Paper 1, 36.

⁹ See also R Müllerson, Ordering Anarchy. International Law in International Society (Martinus Nijhoff , Leiden, 2000) 181 (referring to areas where international law and national law interact par-ticularly intensively as ‘polysystemic legal complexes’).

¹⁰ Southern African Development Community Tribunal, Mike Campbell (Pvt) Ltd and Others v Republic of Zimbabwe (2/2007) [2008] SADCT 2 (28 November 2008).

¹¹ Zimbabwe, High Court, Gramara (Pvt) Ltd and Colin Bailie Cloete v Government of the Republic of Zimbabwe HH 169-2009, HC 33/09 (26 January 2010).

¹² M Kumm, ‘International Law in National Courts: Th e International Rule of Law and the Limits of the Internationalist Model’ (2003) 44 Va J Int’ l L 19, 22; B Tamanaha, ‘A Concise Guide to the Rule of Law’, in G Palombella and N Walker (eds), Relocating the Rule of Law (Hart, Oxford, 2009) 3, 4; Beaulac (n 3) 206; I Brownlie, Th e Rule of Law in International Aff airs. International Law at the Fiftieth Anniversary of the United Nations (Martinus Nijhoff , Th e Hague, 1998) 213.

¹³ Report of the Secretary-General, ‘Th e Rule of Law at the National and International Levels: Comments and Information Received from Governments’ (2007) UN Doc A/62/121 (2007), 19.

¹⁴ See generally on this element of the rule of law, J Raz, ‘Th e Rule of Law and its Virtue’ (1977) 93 LQR 195, 212.

¹⁵ See eg Kumm, ‘International Law in National Courts’ (n 12) 27.


Introduction4

Th is theme, that may lead to a possible collision between the international and the national rule of law, is explored later in this study.

Secondly, the rule of law requires that public powers cannot set or change the law at will.¹⁶ Th ey have to act within the powers conferred by law—a limitation that is particularly relevant for international organizations.¹⁷ Law-making also has to conform to requirements of formal legality (eg, a new law must comply with existing obligations, from which deviation is not allowed) and non-retroactivity.¹⁸

Th irdly, the rule of law requires that the exercise of powers, including the change of existing law, conforms to fundamental civil and political human rights. In cer-tain respects this is a sub-set of the previous two features. But given the central position that human rights play in explaining the powers and practices of national courts, the role of human rights merits a separate category. As will become apparent later in this book, there exists a strong correlation between the international pro-tection of human rights, the piercing of the shield of national law, and the engage-ment of national courts. Th e question of whether fundamental human rights are part of the rule of law or are to be considered as a necessary supplement to the rule of law¹⁹ is a moot one, given the widespread support in the United Nations for a rule of law defi nition that includes human rights,²⁰ as well as the customary nature of core civil and political rights.²¹ International decisions that violate such stand-ards, such as several decisions adopted by the Committee established under UN Security Council Resolution 1267,²² are in this respect incompatible with the rule

¹⁶ Palombella (n 3) 442.¹⁷ See eg S Chesterman, ‘Th e UN Security Council and the Rule of Law’ (7 May 2008). United

Nations General Assembly Security Council, Doc A/63/69-S/2008/270, 2008; NYU School of Law, Public Law Research Paper No 08-57. Available at SSRN: <http://ssrn.com/abstract=1279849> accessed on 15 July 2010.

¹⁸ J Raz, Th e Authority of Law. Essays on Law and Morality (Oxford University Press, Oxford, 1979, reprint 2002) 214; Brownlie (n 12) 213.

¹⁹ See R Peerenboom, ‘Human Rights and the Rule of Law: What’s the Relationship?’ (2005) 36 Georgetown Journal of International Law 809; Tamanaha (n 12) 13–14.

²⁰ UNSC ‘Report of the Secretary-General on the Rule of Law and Transitional Justice in Confl ict and Post-confl ict Societies’ (2004) UN Doc S/20004/616, 6; UNSC Res 616 ‘Th e Rule of Law and Transitional Justice in Confl ict and Post-confl ict Societies’ (23 August 2004) UN Doc S/2004/616. But note the diff erence between the European understanding in which formal legality, individual rights and even democracy are conjoined on one, thick extreme, BZ Tamanaha, On the Rule of Law: History, Politics, Th eory (Cambridge University Press, Cambridge, 2004) 112; B Zangl, ‘Is Th ere an Emerging International Rule of Law?’ (2005) 13 European Review 73–91, on the one hand, and much thinner versions, consisting mostly of rule by law, in Asia (Tamanaha idem 92), on the other.

²¹ T Meron, Human Rights and Humanitarian Norms as Customary Law (Oxford University Press, Oxford, 1989); Th e American Institute, Restatement of the Law. Th ird Foreign Relations Law of the United States—Vol II (American Law Institute Law Publishers, St Paul, 1987) 161; RB Lillich, ‘Th e Growing Importance of Customary International Human Rights Law’ (1995–96) 25 Ga J Int’ l & Comp L 19; and the articles published in the Special Issue on Customary International Human Rights Law (1995–96) 25 (1 and 2) Ga J Int’ l & Comp L.

²² As was noted in Canada, Federal Court, Abdelrazik v Th e Minister of Foreign Aff airs, 2009 FC 580; ILDC 1332 (CA 2009) (critiquing the procedural aspects of the regime set up by UNSC Res 1267 (15 October 1999) UN Doc S/RES/1267). See also A Ciampi, ‘Individual Remedies against Security Council Targeted Sanctions’ (2007) 17 Italian YB Int’ l L 55; H Keller and A Fischer, ‘Th e UN Anti-terror Sanctions Regime under Pressure’ (2009) 9 HRL Rev 257; E de Wet and A Nollkaemper (eds), Review of the Security Council by Member States (Intersentia, Antwerp, 2003).


1. Th e Quest for the International Rule of Law 5

of law. Th e question of which human rights are part of or necessarily relate beyond a relatively clear common core to the concept of the international rule of law is indeterminate.

Fourthly, the rule of law requires that public powers that contravene their legal obligations, whether international or national, are accountable on the basis of the law. Such accountability is an end in itself—as a feature of good governance—but also is instrumental as it can help to ensure that limitations on the exercise of public power are eff ective.²³ Accountability may not guarantee full compliance.²⁴ But the rule of law is not so much concerned with guaranteeing or causing general patterns of rule-conforming behaviour, as with providing protection in those cases where public powers choose not to comply with their obligations.

It is this element of accountability that remains the most problematic aspect of an international rule of law. In domestic legal orders, it is primarily provided by independent courts. Other accountability mechanisms exist and may support the domestic rule of law, but it is hard to conceive of a rule of law domestically without independent courts.²⁵ Th e structural diff erences between the international and the national legal orders make this element diffi cult to transplant to the international level.²⁶ Th e role of an independent judiciary remains extremely modest at the inter-national level and does not in any realistic way function as a check on the political power of states or international institutions.

In this situation two options present themselves. One is to accept the scepti-cal realist position that because the major players do not wish to subject them-selves to international courts, there is no point in pursuing an international rule of law.²⁷ Given the interdependence between international and national law, that position would eff ectively give up the ambition of a rule of law domestically, and already for that reason it is not acceptable. Th e present inquiry, therefore, takes as its starting point an alternative position. Th e international rule of law does require accountability mechanisms, but we should adopt a more fl exible understanding of the nature and form of such mechanisms. Th e function of accountability may be provided by international courts,²⁸ but may also be fulfi lled by a variety of other

²³ Tamanaha (n 20) 124: Beaulac (n 3) 212.²⁴ It may depend on other mechanisms to secure compliance, such as self-interest and reputation:

JL Goldsmith and EA Posner, Th e Limits of International Law (Oxford University Press, Oxford, 2005); AT Guzman, How International Law Works (Oxford University Press, Oxford, 2007). Of course, there is good evidence that accountability processes can help to spur compliance; see HH Koh, ‘Transnational Legal Process’ (1996) 75 Neb L Rev 181, 194–206.

²⁵ Tamahana (n 20) 124; J Raz, ‘Th e Rule of Law and its Virtue’ (1977) 83 LQR 195, 200.²⁶ Zangl (n 20); Tamanaha (n 20) 127–36; Tamanaha (n 12) 11.²⁷ Nardin (n 20) 8 (discussing the ‘skeptical realist’ position that the absence of judges to apply

laws in particular disputes means that the ‘institutions for authoritatively declaring and applying international rules are so rudimentary as to preclude the possibility of an international legal order’).

²⁸ R Higgins, ‘Th e ICJ, the United Nations System, and the Rule of Law’, Speech at the London School of Economics, 13 November 2006 <http://www2.lse.ac.uk/PublicEvents/pdf/20061113_Higgins.pdf> accessed 15 July 2010, 1 (noting that the rule of law requires ‘independent courts to resolve legal disputes’); A Watts, ‘Th e International Rule of Law’ (1993) GYIL 36; Crawford (n 3) 4; Zangl (n 20) 74 (noting that ‘the judicialization of adjudication procedures can be regarded as a fi rst necessary condition for an emergent international rule of law’, because it off ers ‘at least the chance for a comparable treatment of comparable breaches of international law’).


Introduction6

processes, such as quasi-judicial or non-judicial non-compliance mechanisms²⁹ and indeed by institutions at national level.

2. Filling the Missing Link—Th e Role of National Courts

It is here where we reach the subject-matter of this book. In some states and under some conditions, national courts can fi ll the missing link in the international rule of law by providing relief when public powers act in contravention of their interna-tional obligations.

Th e evidence against such a role of national courts has always been solid. It was well encapsulated in Friedmann’s warning against too easy an acceptance of Scelle’s notion of dédoublement fonctionelle. Friedmann observed that the role of national courts in the application of international law is limited and distorted by the predominance of national prejudice and by the fact that few national courts ‘have been able to resist the temptation of modifying doctrine when national pas-sions are aroused’.³⁰ In 2010 such doubts remain partly valid, either because the national law of many states does not allow national courts to operate independ-ently, or because such courts choose not do so. In weak states such as Afghanistan is it a non-starter to expect courts to have any role whatsoever in the performance of international obligations.³¹ But also in states with more of a rule-of-law tradition, in all too many instances national courts have sided with their government and refused to review acts by governments against the standards of international law.³² Th e aforementioned decision of the High Court of Zimbabwe in Gramara (Pvt) Ltd and Colin Bailie Cloete v Government of the Republic of Zimbabwe is a case in point.³³ Th e formulation of the US Court of Appeals, DC Circuit, in United States v Yunis is a fi tting portrayal of where the loyalties of many national courts lie:

Yunis seeks to portray international law as a self-executing code that trumps domes-tic law whenever the two confl ict. Th at eff ort misconceives the role of judges as appliers of international law and as participants in the federal system. Our duty is to enforce the Constitution, laws and treaties of the United States, not to conform the law of the land to norms of customary international law.³⁴

²⁹ G Ulfstein, T Maurahn, and A Zimmermann (eds), Making Treaties Work: Human Rights, Environment and Arms Control (Cambridge University Press, Cambridge, 2007); T Treves et al (eds), Non-Compliance Procedures and Mechanisms and the Eff ectiveness of International Environmental Agreements (Cambridge University Press, Cambridge, 2009).

³⁰ W Friedmann, Th e Changing Structure of International Law (Stevens & Sons, London, 1964) 146–7.

³¹ TJ Röder, ‘Little Steps forward: Some Remarks on the Rome Conference on the Rule of Law in Afghanistan’ (2007) 11 Max Planck Yrbk UN L 307–12; M Schoiswohl, ‘Linking the International Legal Framework to Building the Formal Foundations of a “State at Risk”: Constitution-Making and International Law in Post-Confl ict Afghanistan’ (2006) 39 Vand J Transnat’ l L 819–63, at 844–60.

³² See the examples given in E Benvenisti, ‘Judicial Misgivings regarding the Application of International Law: An Analysis of Attitudes of National Courts’ (1993) 4 EJIL 159.

³³ See n 11.³⁴ United States v Yunis 924 F2d 1086, 288 US App DC 129 (DC Cir 1991); ILDC 1476 (US

1991) (forthcoming).


2. Filling the Missing Link—Th e Role of National Courts 7

A thorough search during the start-up phase of what now is the International Law in Domestic Courts module of the Oxford Reports on International Law, has shown about 30–40 states in which courts relatively frequently give eff ect to international law, and about 40 more in which courts occasionally give eff ect to international law. Th e list is certainly not exhaustive, but it is certain that there are dozens of states in which courts, very infrequently, give eff ect to international law and doz-ens more states in which courts do not do so at all.

However, the traditional sceptical reading of judicial practice fails to grasp the systemic contribution that the courts of many states have started to make to the international rule of law. Reliance on domestic courts is not a new phenom-enon.³⁵ But in the last few decades, we have seen a quantitative and qualitative shift.³⁶ Across the world, national courts have been given or have assumed the power to review acts of the executive or legislative branches of their state against international law. Illustrative cases include Hamdan, in which the US Supreme Court reviewed the detention of suspected terrorists against the 1949 Geneva Conventions;³⁷ Beit Sourik Village Council v Israel and the Commander of the Israeli Defence Force in the West Bank, in which the Supreme Court of Israel sit-ting as the High Court of Justice nullifi ed six orders pertaining to the seizure of land in the West Bank, based on the Fourth Geneva Convention and the 1907 Hague Regulations;³⁸ and the Narmada case, in which the Indian Supreme Court reviewed the legality of the displacement of people resulting from the building of a dam in the Narmada river under the ILO Indigenous and Tribal Populations Convention 1957.³⁹ Moreover, national courts have reviewed the negative eff ects on the rule of law that may result from the performance of international obligations, as illustrated by the judgment of the UK Supreme Court in HM Treasury v Mohammed Jabar Ahmed, in which individual rights were protected

³⁵ Lillich wrote in 1962 that traditional methods for handling claims by international commis-sions ‘have proved unsatisfactory for the needs of the postwar world’ and that states have increas-ingly resorted to national commissions for the handling of international claims; see RB Lillich, International Claims—Th eir Handling by National Commissions (Syracuse University Press, Syracuse, 1962) 3.

³⁶ HG Schermers, ‘Th e Role of Domestic Courts in Eff ectuating International Law’ (1990) 3 LJIL 77, 83; E Benvenisti, ‘Reclaiming Democracy: Th e Strategic Uses of Foreign and International Law by National Courts’ (2008) 102 AJIL 241.

³⁷ Hamdan v Rumsfeld, Secretary of Defense 548 US 557, 126 S Ct 2749 (2006); ILDC 745 (US 2006) (forthcoming).

³⁸ Beit Sourik Village Council v Israel and the Commander of the Israeli Defence Force in the West Bank, HCJ 2056/04; ILDC 16 (IL 2004) (discussing the Hague Convention (IV) Respecting the Laws and Customs of War on Land and its annex: Regulations Concerning the Laws and Customs of War on Land (adopted 18 October 1907, entered into force 26 January 1910) 36 Stat 2277; 205 Consol TS 2773, and Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War (adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 287).

³⁹ Narmada Bachao Aandolan v India, AIR 2000 SC 3751; ILDC 169 (IN 2000) (discussing ILO Convention (No 107) Concerning the Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations in Independent Countries (adopted 26 June 1957, entered into force 2 June 1959) 328 UNTS 247).


Introduction8

notwithstanding the obligations of the United Kingdom under Article 25 of the UN Charter.⁴⁰

Th e volume of national case-law on such matters of international law easily out-numbers the decisions of international courts and tribunals. In any event in this respect national case-law has a more profound eff ect for the actual application of international law, and the protection of the international rule of law, than do the decisions of international courts and tribunals.⁴¹

Th e legal signifi cance of those decisions of national courts on questions of inter-national law transcends the domestic legal order.⁴² Th ey are not ‘merely facts’ of which the international legal order may or may not take notice, but fulfi l a legal function.⁴³ Th ey can determine, with fi nality, legal rights and obligations under international law.⁴⁴ In this respect, national courts may indeed compensate for the lack of international courts as a systemic force in the protection of the international rule of law, in line with Scelle’s notion of the dédoublement fonctionelle: national courts can act as agents of the international legal order, in the service of the inter-national rule of law.⁴⁵

Th e dominant role of national courts in the protection of the international rule of law is not a solution to a temporary defi ciency of the international legal order. States will continue to be reluctant to subject large parts of their public powers to international judicial review.⁴⁶ Domestic judicial powers are a relatively acceptable

⁴⁰ See eg A, K, M, Q and G v HM Treasury [2008] EWCA Civ 1187; Hay v HM Treasury [2009] EWHC 1677 (Admin); ILDC 1367 (UK 2009); HM’s Treasury v Mohammed Jabar Ahmed (FC), HM’s Treasury v Mohammed al-Ghabra (FC), and R (Hani El Sayed Sabaei Youssef) v HM’s Treasury [2010] UKSC 2 (discussing Charter of the United Nations (adopted 26 June 1945, entered into force 24 October 1945) 1 UNTS 16 (UN Charter)).

⁴¹ See also Müllerson (n 9) 171; D Th ürer, ‘Internationales “Rule of Law”—innerstaatliche Demokratie’ (1995) 5 Schweizerische Zeitschrift für internationales und europäisches Recht 454, 470–1.

⁴² RY Jennings, ‘Th e Judiciary, International and National, and the Development of International Law’ (1996) 45 ICLQ 1, 1–4; R Pissilo-Mazzeschi, ‘International Obligations to Provide for Reparation Claims?’ in A Randelzhofer and C Tomuschat (eds), State Responsibility and the Individual (Martinus Nijhoff , Leiden, 1999) 149, 157–9.

⁴³ C Santulli, Le statut international de l’ordre juridique étatique: étude du traitement du droit interne par le droit international (Pedone, Paris, 2001).

⁴⁴ For discussion, see Chapter 9 below.⁴⁵ G Scelle, ‘Règles générales du droit de la paix’ (1933) 46 RdC 331, 356. For a discussion

of Scelle’s theory, see A Cassese, ‘Remarks on Scelle’s Th eory of “Role Splitting” (dédoublement fonctionnel) in International Law’ (1990) 1 EJIL 210, 210; CH Schreuer, ‘Th e Implementation of International Judicial Decisions by Domestic Courts’ (1975) 24 ICLQ 153, 160; Y Shany, ‘Dédoublement fonctionnel and the Mixed Loyalties of National and International Judges’, in F Fontanelli, G Martinico, and P Carrozaa, Shaping Rule of Law through Dialogue. International and Supranational Experiences (Europa Law Publishing, Groningen, 2010) 27. See also H Lauterpacht, International Law: Being the Collected Papers of Hersch Lauterpacht—Vol 2 (Cambridge University Press, Cambridge, 1970) 567 (noting that where international law is part of national law, courts, instead of proclaiming the exclusive authority of the national legal system, regard themselves, in addition to their normal function, as administering a law of a unit greater than the State); E Stein and D Halberstam, ‘Th e United Nations, the European Union, and the King of Sweden: Economic Sanctions and Individual Rights in a Plural World Order’ (2009) 46 CML Rev 13, 72 (noting in respect of the ECJ that ‘the Court acts not only as a court of the Community, but also as a court of the international legal system); HF van Panhuys, ‘Relations and Interactions between International and National Scenes of Law’ (1968) 112 RdC 1, 9.

⁴⁶ See eg EA Posner, ‘Th e Decline of the International Court of Justice’, in S Voigt, M Albert, and D Schmidtchen (eds), International Confl ict Resolution (Mohr Siebeck, Tü bingen, 2006) 111–42;


3. Functions 9

way of creating a ‘world under law’, without creating inter- or supranational insti-tutions that states would fi nd to restrict their sovereignty unduly.⁴⁷ Moreover, as illustrated by the fate of the judgment of the SADC court in Mike Campbell (Pvt) Ltd & Others v Th e Republic of Zimbabwe,⁴⁸ even when states agree to empower an international court, that will not contribute to the rule of law unless it is backed up by an eff ective national court.

3. Functions

To speak of the contribution that national courts can make to the protection of the international rule of law conceals a variety of functions that such courts can fulfi l. Th ree such functions can be distinguished, each of which constitutes a central ele-ment of the protection of the rule of law at the international level.⁴⁹ Each of these functions can be performed by both international and national courts, making the distinction between them, at least from this functional perspective, much less sharp than is commonly assumed.⁵⁰

First, national courts can decide international claims: that is, claims that in whole or in part are based on a rule of international law. Th ough the term ‘inter-national claim’ is usually used in respect of claims brought at the international level,⁵¹ the penetration of international law in the national legal order makes it proper to extend the use of the term to claims before national courts. What is deci-sive is the nature of the norm on which a claimant relies. International claims may be brought in national courts in a wide variety of situations. Th ese include claims for compensation for injury that has resulted from non-performance of an inter-national obligation, claims for annulment or ‘disapplication’ of national laws that contravene international obligations, defensive claims in criminal law against acts that contravene international obligations, and so on.

By deciding international claims, national courts may settle international dis-putes. While the term ‘dispute settlement’ has also commonly been confi ned to procedures at the international level that limitation is neither necessary nor con-ceptually helpful. What makes a dispute an international one is, above all else, the

See also B Conforti, International Law and the Role of Domestic Legal Systems (Martinus Nijhoff , Leiden, 1993) 4–5.

⁴⁷ AM Slaughter and W Burke-White, ‘Th e Future of International Law is Domestic’ in J Nijman and A Nollkaemper (eds), New Perspectives on the Divide between International and National Law (Oxford University Press, Oxford, 2007) 110, 112–13.

⁴⁸ See n 9.⁴⁹ Th ese are adapted from M Shapiro, Courts: A Comparative and Political Analysis (University of

Chicago Press, Chicago, 1983); For an application to international law, see DD Caron, ‘Towards a Political Th eory of International Courts and Tribunals’ (2007) 24 Berkeley J Int’ l L 401, 407.

⁵⁰ See also Shany (n 45) 30–4.⁵¹ Compare for the classic (and narrower) defi nition of international claims in the context of dip-

lomatic protection: JP Grant and JC Barker, Encyclopedic Dictionary of International Law (2nd edn, Oceana Publishing, New York, 2004) 83.


Introduction10

substance of that dispute: a dispute is international when ‘the rivaling claims are based on international law’.⁵²

Th e second function of national courts is to review the legality of national acts in the light of international obligations and to ensure rule-conformity. Such legal-ity review may be a side eff ect of deciding international claims: when a national court decides a claim based on a human rights treaty against a state in favour of the claimant, it thereby contributes to the enforcement of that treaty. However, the function of legality review is broader. Th e wide practice of (constitutional) review that allows national courts to review the legality of legislation against international law outside the context of specifi c claims or disputes is a case in point.⁵³

Th irdly, national courts can play a role in the interpretation, determination, and development of international law. It would be simplistic to limit the role of national courts in the international legal order to that of ‘enforcers’ of the law.⁵⁴ By interpreting and applying international obligations, national courts may facili-tate the determination of the contents of such obligations and may contribute to their development. Other national courts and to a lesser extent international courts may rely on that practice for their own determination and interpretation of international law. Th is is not a new phenomenon. Judicial practice in regard to jurisdictional immunities has long been a major component of the development of international law.⁵⁵ In modern international law, national courts fulfi l this role in a multitude of other issue-areas and with much greater frequency.⁵⁶

4. Th e Complementary Nature of Legal Systems

Th e degree to which the courts of a particular state exercise one or more of the above functions depends on a wide variety of factors. Th ese include legal culture; national courts and individual judges in varying degrees are open to consider and give eff ect to international law.⁵⁷ Th ey also include political considerations that may or may not induce the judiciary to exploit the leeway allowed by national

⁵² A Peters, ‘International Dispute Settlement: A Network of Cooperational Duties’ (2003) 14 EJIL 1, 3. Th e defi nition of international disputes as disputes in which the rival claims are based on international law is preferred over the more common defi nition of international disputes as disputes with a transborder dimension (eg JG Merrills, International Dispute Settlement (3rd edn, Cambridge University Press, Cambridge, 1998) 1) or the variant in which the term international disputes is confi ned to interstate disputes (idem). Defi ning international disputes as disputes with a transborder dimension would make the term over-inclusive, as many transborder disputes between private enti-ties are governed exclusively by national law. Confi ning the term to interstate disputes would make the term under-inclusive, as international law assigns rights and duties to many other subjects than states. ⁵³ See Chapter 5 below, at 112.

⁵⁴ R Howse and R Teitel, ‘Beyond Compliance: Rethinking Why International Law Really Matters’ (2010) 1 Global Policy 127.

⁵⁵ See also the comprehensive collection of case-law on a variety of areas of international law con-tained in L Erades, Interactions between International and Municipal Law—A Comparative Case Law Study (M Fitzmaurice and C Flinterman, eds) (TMC Asser Instituut, Th e Hague, 1993).

⁵⁶ Chapter 10, Section 4 below.⁵⁷ R Higgins, Problems and Process, International Law and how we use it (Clarendon Press, Oxford,

1994) 216.


4. Th e Complementary Nature of Legal Systems 11

law.⁵⁸ However, the explanatory power of such factors is embedded in, and in part determined by, legal principles that are the subject of this study.

Th e principles that underlie the practice of national courts relevant to the pro-tection of the international rule of law belong in part to international law, and in part to national law. Indeed, the international and the national legal order play complementary roles, and may combine in providing the incentives and condi-tions under which national courts can fulfi l a role in the international legal order.

On the one hand, international law guides and in some respects determines the practice of national courts. While much of the literature on the topic routinely accepts that it is national rather than international law that governs the practice of national courts, this position underestimates the normative infl uence of inter-national law. Th e international normative framework consists in particular of the pacta sunt servanda principle, and the so-called ‘Alabama principle’: states must comply with their international obligations, should organize their national legal order in such a manner as to allow for an eff ective performance of international obligations,⁵⁹ and cannot plead national law to justify a breach of their interna-tional obligations.⁶⁰ A court that gives eff ect to domestic law and fails to ensure the performance of an international obligation will engage the international respon-sibility of the state. Th e practice of national courts that ensure full performance can be understood and conceptualized in terms of this international normative framework.

Th e scope and impact of this international normative framework has been extended signifi cantly by the increasing degree to which international law regulates the legal relationship between states and private parties. Kelsen correctly observed that as direct authorization or obligation of individuals by international law replaces the traditional model of indirect authorization and obligation, the bound-ary between international and domestic law evaporates.⁶¹ National courts, which always were the natural fi rst port of call for adjudicating rights and obligations

⁵⁸ See generally on the political nature of judicial decisions, D Kennedy, A Critique of Adjudication: (Fin de Siècle) (Harvard University Press, Cambridge, 1997) 40; B de Sousa Santos, Toward a New Common Sense: Law, Science And Politics In Th e Paradigmatic Transition (Routledge, Oxford, 1995) 114, referring to ‘the politics of defi nition of law’. See also K Günther, ‘Legal Pluralism and the Universal Code of Legality: Globalisation as a Problem of Legal Th eory’ (2003) (unpublished manuscript) <http://www3.law.nyu.edu/clppt/program2003/readings/gunther.pdf> accessed 15 July 2010, English version of K Günther, ‘Rechtspluralismus und universaler Code der Legalität: Globalisierung als rechtstheoretisches Problem’, in L Wingert and K Günther (eds), Die Öff entlichkeit der Vernunft und die Vernunft der Öff entlichkeit, Essays in Honour of Jürgen Habermas (Suhrkamp, Frankfurt am Main, 2001) 539–67.

⁵⁹ Exchange of Greek and Turkish Populations (Advisory Opinion), PCIJ Series B no 10; ICGJ 277 (PCIJ 1925) 51; see also Greco-Bulgarian ‘Communities’ (Advisory Opinion), PCIJ Series B no 17; ICGJ 284 (PCIJ 1930) [84].

⁶⁰ Alabama Claims Arbitration (1872) 1 Moore Intl Arbitrations 495; Article 27, Vienna Convention of the Law of Treaties (adopted 22 May 1969, entered into force 27 January 1980) 1155 UNTS 331 (VCLT) and Article 3 of the ILC’s ‘Articles on Responsibility of States for Internationally Wrongful Acts’ (12 December 2001) UNGA A/RES/56/83. See also PM Dupuy, ‘Relations Between the International Law of Responsibility and Responsibility in Municipal Law’, in J Crawford, A Pellet, and S Olleson (eds), Th e Law of International Responsibility (Oxford University Press, Oxford, 2010).

⁶¹ H Kelsen, Law and Peace in International Relations. Th e Oliver Wendell Holmes Lectures, 1940–41 (Harvard University Press, Cambridge, 1942) 96.


Introduction12

of private parties,⁶² also become the fi rst port of call for international claims by private parties and thus come to be subject to the international normative frame-work. Th e eff ect of the allocation of rights to individuals on the power of national courts extends to issue-areas that traditionally have been removed from the power of domestic courts, including armed confl ict.⁶³

On the other hand, the national law of many states complements international law by empowering national courts and providing the conditions for the eff ec-tiveness of international law.⁶⁴ Moreover, in several respects the national law of many states goes beyond what international law requires. It provides opportuni-ties for national courts to adjudicate international claims that international law cannot itself provide, for instance by providing for constitutional principles that make international law part of the applicable law for their courts,⁶⁵ for principles that allow courts to apply international obligations directly⁶⁶ or require consistent interpretation,⁶⁷ and for principles that recognize the (at least partial) supremacy of international over national law.⁶⁸

Th e facilitative role of national law in the fi nal analysis is subject to the law and political decisions of the state concerned and may be removed by states at will. It may be tempting, on that basis, to regard national courts as a weak and uncertain institutional force for the protection of the international rule of law. However, two considerations should be kept in mind. First, the evidence of an increasing role of national courts in the application of international law is too widespread to consider that role as a random process that is just a matter of national law. Rather, the evi-dence suggests that many states, and their courts, accept the normative guidance stemming from international law itself.

Secondly, where national law has granted courts the power to give eff ect to inter-national law, the possibility that national law withdraws such powers is largely theoretical and there are relatively few examples where this has been done. As Lauterpacht noted, whereas the domestic eff ects of international law may be ‘con-ceded by the State and [are] revocable at its instance . . . so long as it lasts . . . [they have] the eff ect of elevating to the authority of a legal rule the unity of international and municipal law’.⁶⁹

Th e picture that emerges is one in which international law, on the one hand, increasingly reaches down to national courts, and on the other hand, many states and their courts increasingly reach up to allow international law to guide their

⁶² Compare the 3rd Preambular paragraph of the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (adopted 18 March 1965, entered into force 14 October 1966) 575 UNTS 159), recognizing that disputes between contracting states and nation-als of other contracting states would usually be subject to national legal processes.

⁶³ See eg R (Al-Jedda) FC v Secretary of State for Defence [2007] UKHL 58, ILDC 832 (UK 2007).

⁶⁴ See already F Morgenstern, ‘Judicial Practice and the Supremacy of International Law’ (1950) 27 BYIL 42, 90 (noting that ‘state organs, though in theory free to exclude or obstruct the operation of international law in the municipal sphere, in fact endeavour to facilitate it’).

⁶⁵ See Chapter 4 below. ⁶⁶ See Chapter 6 below. ⁶⁷ See Chapter 7 below.⁶⁸ See Chapter 8 below. ⁶⁹ Lauterpacht (n 45) 548.


5. Th e Problem: Th e Double Bind 13

judicial practices. International and national legal orders complement each other in the protection of the rule of law.

Although in a formal sense the international and the national legal orders remain largely autonomous, and international law itself cannot create a legal eff ect in domestic law, and vice versa,⁷⁰ it is a basic premise of this study that the dual-istic perspective can no longer conceptualize, or explain, the interactive process between international law and the national law of many states.⁷¹ Two qualifi ca-tions should be mentioned up front. One, further discussed in Chapter 4, is that a large number of states have opened their domestic legal orders with a view to grant-ing full eff ect to (particular areas of) international law. Th is practice seems diffi -cult to explain without considering the perception of these states that they should do so. Th e other qualifi cation, further discussed in Chapter 10, is that the interna-tional legal order under some conditions recognizes the authority and indeed legal eff ect of decisions of national courts. Both qualifi cations signifi cantly undermine the descriptive and explanatory power of the dualistic perspective. Th e relationship between international and national law therefore is better characterized in terms of coordination between formally autonomous, but in practice highly interdepend-ent, legal orders.⁷² As noted by Jennings: ‘the strictly dualistic view of the relation-ship between international law and municipal law is becoming less serviceable and the old well defi ned boundaries between public international law . . . and municipal law are no longer boundaries but grey areas.’⁷³

Again, it has to be emphasized that the degree to which this characteriza-tion refl ects practice diff ers widely between states. Courts of some states (eg Afghanistan, but also China) play no role whatsoever in fulfi lling such functions, whereas courts of other states (eg the Netherlands, but also South Africa) frequently apply international law and can in some respects be compared to international courts. It is hardly possible to speak meaningfully about ‘the’ relationship between international law and national law—this will diff er between states and regions.

5. Th e Problem: Th e Double Bind

Notwithstanding the supportive trends in both international and national law, from the perspective of international law, a fundamental dilemma remains.

⁷⁰ G Gaja, ‘Dualism—A Review’ in J Nijman and A Nollkaemper (eds), New Perspectives on the Divide between National and International Law (Oxford University Press, Oxford, 2007) 52.

⁷¹ For a comparable early critique on this dualist premise, see H Lauterpacht, ‘Decisions of Municipal Courts as a Source of International Law’ (1929) 10 BYIL 65, 66–7. See also M Kirby, ‘Th e Growing Rapprochement between International Law and National Law’, in G Sturgess and A Anghie (eds), Visions of the Legal Order in the 21st Century. Essays in Honour of Judge CJ Weeramantry (Martinus Nijhoff , Leiden, 1998) 333.

⁷² G Sperduti, ‘Dualism and Monism: A Confrontation to Be Overcome’ (1977) 3 Italian YB Int’ l L 31, 49; VJ Jackson, Constitutional Engagement in a Transnational Era (Oxford University Press, Oxford, 2010) 273

⁷³ Jennings (n 42) 4; See also VS Vereshchetin, ‘Long-term Trends in the Evolution of International Law’ in K Tatsuzawa (ed), Th e Law of International Relations (Local Public Entity Study Organization, Chuogakuin University, Japan, 1997) 3, 8.


Introduction14

National courts often fi nd themselves in a double bind. Th e term ‘double bind’ is commonly used in psychology. To say that a person is placed in a double bind means that he or she can only comply with one command by violating another.⁷⁴ Th e term is also appropriate to describe legal pluralism⁷⁵ and, indeed, the position of national courts at the intersection of the international and national legal order.⁷⁶ National courts operate neither fully in the national, nor fully in the international legal order, but rather in a mixed zone where they are subject to competing loyal-ties, commitments, and obligations.⁷⁷

Th e dilemma then presents itself as to how the international legal order can combine, on the one hand, the need to rely on national courts to provide elements of an international rule of law and, on the other hand, the essential connection between national courts and their national political and legal order. Is it compat-ible with the rule of law to allow the very party whose compliance is in question to determine whether it is in transgression?⁷⁸ How much loss of uniformity, which results from the inevitable infl uence of national law and national legal culture,⁷⁹ can international law accept before reliance on national courts undermines the key values of the rule of law: consistency and predictability? And how can inter-national law distinguish between those decisions that are nationalistic and protect the forum state, and those that can be accepted as authoritative? Th ese questions are particularly acute when national courts review the compatibility of interna-tional obligations with fundamental rights under national or international law, as illustrated by the Kadi judgment.⁸⁰ Can international law trust national courts to provide independent and impartial reviews of the legality of international obliga-tions? Or would that be disruptive for the international legal order?

Th e dilemma is compounded by the institutional gap at the top of the judicial chain. Th e conditions and limits of reliance on national courts have been given much attention in the context of the International Criminal Court (ICC), which, like the international legal order in general, largely relies on national courts. But whereas the ICC can function as a reserve court in those cases where national courts are too tied to the national legal order, and are unable or unwilling to do

⁷⁴ See the defi nition of ‘double bind’ in G Bateson, D Jackson, J Haley, and J Weak-land, ‘Toward a Th eory of Schizophrenia’ (1956) 1 Behavioral Science 251–4.

⁷⁵ R Michaels, ‘Global Legal Pluralism’ (2009) 5 Annual Review of Law & Social Science 243, at 245, 246, and 262; N MacCormick, Questioning Sovereignty: Law, State, and Nation in the European Commonwealth (Oxford University Press, Oxford, 1999) 102.

⁷⁶ A von Bogdandy, ‘Pluralism, Direct Eff ect, and the Ultimate Say: on the Relationship between International and Domestic Constitutional Law’ (2008) ICON 397, 398; A Mills and T Stephens, ‘Challenging the Role of Judges in Slaughter’s Liberal Th eory of International Law’ (2005) 18 LJIL 1, 20 (noting that a role of the judiciary ‘as servants of transnational norms contradicts their role as servants of the domestic rule of law’).

⁷⁷ Shany (n 45) 36–7.⁷⁸ J Paulsson, Denial of Justice in International Law (Cambridge University Press, Cambridge,

2005) 4; see further Chapter 3 below.⁷⁹ K Knop, ‘Here and Th ere: International Law in Domestic Courts’ (2000) 32 NYU J Int’ l L &

Pol 501, 504.⁸⁰ Joined Cases C-402/05 P and C-415/05 P Yassin Abdullah Kadi and Al Barakaat International

Foundation v Council of European Union and Commission of European Communities [2008] ECR I-06351. See further Chapter 11 below.


6. Approach and Method 15

what international law requires,⁸¹ general international law, and many treaty regimes, lack such an institutional option to compensate for defective national courts.⁸² In that situation, the question is how international law can distinguish between decisions that it can accept and decisions that it cannot accept.

6. Approach and Method

Th is book aims to contribute to the understanding of the actual and potential role of national courts in the protection of the international rule of law. It seeks to answer in particular three questions. First, under what conditions can decisions of national courts contribute to the international, rather than (only) the national, rule of law? Secondly, through which principles and procedures does international law induce national courts to fulfi l a role in the protection of the international rule of law, and what practices of national courts can be identifi ed that support the international rule of law, beyond what is required by international law? And thirdly, what are the eff ects of decisions of national courts on (non)performance of international obligations in the international legal order?

Th e scope of the book is narrow in that it focuses on how courts exercise judicial control over public powers of the forum state. Th ough the possibility that a national court may review an act of a foreign state has traditionally grabbed the attention of international lawyers,⁸³ its practical importance is limited due to the principle of state immunity and the act of state doctrine.⁸⁴ It is with respect to a court’s ‘own’ state that national courts have been able to make the most signifi cant contributions to the resolution of competing national and international powers and obligations.

In examining the principles and practices pertaining to acts of the forum state, the book primarily explores what it is that international law requires, expects, or obliges domestic courts to do in respect of the application of international law. Th e common yardstick for reviewing domestic practice from various states, thus, is international law.⁸⁵ Th e wide variety in the practices of domestic courts may suggest the absence of any principles. But that would be misleading. Recent treaty

⁸¹ Article 17 of the Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) 2187 UNTS 90 (ICC Statute).

⁸² H Lauterpacht, International Law: Being the Collected Papers of Hersch Lauterpacht—Vol 1 (Cambridge University Press, Cambridge, 1970) 164.

⁸³ Th is is also the focus of what is still the classic monograph on the role of national courts: RA Falk, Th e Role of Domestic Courts in the International Legal Order (Syracuse University Press, Syracuse, 1964).

⁸⁴ In exceptional cases, states have allowed their courts jurisdiction to adjudicate claims against (organs of) foreign states, for instance in the United States under the Alien Tort Statute (see Sosa v Alvarez-Machain 542 US 692, 124 S Ct 2739 (2004); ILDC 117 (US 2004)), or under the excep-tions to immunity created by the Antiterrorism and Eff ective Death Penalty Act of 1996, Pub L No 104–132, 110 Stat 1214.

⁸⁵ P Pescatore, ‘Conclusion’, in FG Jacobs and S Roberts (eds), Th e Eff ects of Treaties in Domestic Law (Sweet & Maxwell, London, 1987) 273, 279. Th is is also the starting point of the work of the Institut de Droit International on ‘Th e Activities of National Judges and the International Relations of Th eir State’ (1993) Preliminary Report by Rapporteur Benedetto Conforti, Ninth Commission, 329.


Introduction16

practice, the practice of international courts, as well as convergence in domestic practices, allows us to identify principles that govern, to a large extent, domestic judicial practice in the application of international law—even though such prin-ciples may not be universally shared or applied.

Th e adoption of the perspective of the international rule of law does not imply that the relationship between international and national law should be under-stood in strictly hierarchical terms. Th ere is a compelling argument that it is better understood in terms of two (or more) non-hierarchially related centres that contest supremacy.⁸⁶ But the normative implications of constitutional pluralism for inter-national law are problematic. While it has always been obvious that international and national law make competing claims to supremacy (in that respect there is lit-tle new in the debate in terms of descriptive analysis), normative equality of consti-tutional sites would be destructive of the ambition of the international rule of law, save for the narrow proposition that other (regional or national) constitutional sites may be needed to protect the rule of international law itself.⁸⁷

As to the method, this book seeks to identify the relevant principles and prac-tices in the practice of national courts. It thus examines international legal powers and principles as these are perceived and applied by courts themselves. It is thus the practice of national courts itself that is the primary unit of analysis.⁸⁸

In identifying relevant practice, the book adopts a broad defi nition of what is a ‘court’. Th e defi ning feature for our purposes is that a court is an institution, established by law, having authority to hear and determine disputes in accordance with rules of law.⁸⁹ Th e question of whether or not an institution is suffi ciently

⁸⁶ N Krisch, ‘Th e Case for Pluralism in Postnational Law’ (2009) LSE Legal Studies Working Paper No 12/2009 <http://ssrn.com/abstract=1418707> accessed 15 July 2010; M Rosenfeld, ‘Rethinking Constitutional Ordering in an Era of Legal and Ideological Pluralism’ (2008) 6 ICON 3415; N Walker, ‘Beyond boundary disputes and basic grids: Mapping the global disorder of norma-tive orders’ (2008) 6 ICON 373; A-M Slaughter, ‘A Global Community of Courts’ (2003) 44 Harv Int’ l LJ 191, 217 (noting that ‘the community must embrace a principle of pluralism and legitimate dif-ference, whereby judges acknowledge the validity of diff erent problems to the same legal problem’).

⁸⁷ See Chapter 11 below.⁸⁸ In certain respects, the approach is comparable to G Schwarzenberger, International Law, as

Applied by International Courts and Tribunals (2nd edn, Stevens & Sons, London, 1949) and B Cheng, General Principles of Law as Applied by International Courts and Tribunals (Grotius, Cambridge, 1987).

⁸⁹ DM Walker, Th e Oxford Companion to Law (Clarendon Press, Oxford, 1980) 301. For the defi nition of ‘courts’, see also H Mosler, ‘Nationale Gerichte als Garanten völkerrecht-licher Verpfl ichtungen’, in HL Bakels, IP Asscher-Vonk, and WHACM Bouwens (eds), Recht als Instrument van Behoud en Verandering. Opstellen aangeboden aan Prof. mr J.J.M. van der Ven (Kluwer, Deventer, 1972) 381, 384. For the wide defi nition of disputes used in this study, see Peters (n 52). Th e Convention for the Protection of Human Rights and Fundamental Freedoms and its Protocols (European Convention on Human Rights, as amended) (adopted 4 November 1950, entered into force 3 September 1953) ETS 5; 213 UNTS 221 (ECHR) poses additional substantive requirements for considering an institution as a court in terms of Article 5 or Article 6: see Neumeister v Austria (App no 1936/63) ECHR 27 June 1968 [24] (noting that the term ‘court’ in Article 5(4) of the ECHR ‘implies only that the authority called upon to decide thereon must possess a judicial character, that is to say, be independent both of the executive and of the parties to the case; it in no way relates to the procedure to be followed’) and Ringeisen v Austria (App no 2614/65), ECHR 16 July 1971 [95] (noting that a particular Commission was ‘a “tribunal” within the meaning of Article 6.1 of the Convention as it is independent of the executive and also of the parties, its members are appointed for a term of fi ve years and the proceedings before it aff ord the necessary guarantees’).


6. Approach and Method 17

independent from the executive, and is otherwise enabled, to give eff ect to inter-national law, may cast doubt on its power to protect the rule of law, but does not determine whether that institution actually is a court.⁹⁰

Access to national cases has been greatly facilitated by the continuing produc-tion of national case-law in International Law Reports and the Oxford Reports on International Law. Th e wide reporter network for the latter service, which has resulted in the selection of over 1,400 cases from more than 80 jurisdictions that are relevant from the perspective of international law, makes it possible, more than ever before, to assess the developments in national case-law in a representative way.

Th e book does not intend to identify or systematize all practices of domestic courts relevant to the application of international law. It systematizes the rel-evant practice from one particular angle: the role that national courts may play in protecting the international rule of law. It recognizes that there is much con-trary practice—indeed, such contrary practice has been so pervasive and so often described that there is no need to document it in this book. Th e focus is on those principles and practices that are consistent with and that support a role for national courts in the protection of the international rule of law.

Within this limitation, the book will take a bird’s eye view and examine domes-tic patterns and practices that are of wider signifi cance for the protection of the international rule of law. Th e practice of domestic courts on matters of interna-tional law shows wide divergences, diff ering between legal systems (between com-mon law and civil law systems, between systems with diff erent modes of reception of international law, etc) and, within states, between fi elds of law (civil law, admin-istrative law, criminal law, etc). Th e study takes due account of these diff erences and will caution against overgeneralization. However, it is not a study in com-parative law and it does not make conclusive determinations as they pertain to the powers or practices of courts to apply international law in any particular state. Rather, against the backdrop of what international law requires, it seeks to map patterns of domestic practice in the resolution of confl icts between international and national law, and to identify the patterns that are conducive to the mainte-nance of the international rule of law. Apart from the introduction, this book is divided into four parts:

Part One (Chapters 2–5) discusses the conditions that allow national courts to play a critical role in the protection of the international rule of law by reviewing the exercise of public power against international law. It examines questions of jurisdiction, independence, applicable law, and standing.

Part Two (Chapters 6–8) discusses techniques that national courts can apply to fulfi l the functions of settling international claims and enforcing international obligations. It examines direct eff ect, consistent interpretation, and reparation.

⁹⁰ Under the ECHR, independence and certain other procedural aspects are constitutive elements of the defi nition of a ‘tribunal’ for the purposes of Article 6 of the Convention. See eg Cyprus v Turkey (App no 25781/94) ECHR 10 May 2001 [233]. But a court that does not qualify as a court for purposes of Article 6 can, for other purposes, still be considered as a court.


Introduction18

Part Th ree (Chapters 9–11) discusses the eff ects of decisions of national courts in the wider international legal order. It examines questions of fragmentation, the authority of decisions of national courts in the international legal order, and the possibility that national courts review international obligations and thus protect the international rule of law against international law itself.

Part Four (Chapter 12) contains the conclusions.


00 nollkaemper prelims · th e aim of a rule of law at the international level is so far beyond the...

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