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Journal articles on the topic 'Domestic relations courts'
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1
Kunz, Raffaela. "Judging International Judgments Anew? The Human Rights Courts before Domestic Courts." European Journal of International Law 30, no. 4 (November 2019): 1129–63. http://dx.doi.org/10.1093/ejil/chz063.
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Abstract In recent times, instances of contestation against the European Court of Human Rights and the Inter-American Court of Human Rights have made headlines, and, in many of these cases, domestic courts have played a role by refusing to follow the human rights courts or even declaring their judgments to be unconstitutional. This article undertakes an in-depth analysis of these instances of judicial resistance and puts them into context. This shows that domestic courts, even though originally not having been allocated this role, have become important ‘compliance partners’ of the human rights courts and now play an important and autonomous role in the implementation of their judgments. At the same time, they act as ‘gatekeepers’ and limit their effects in the domestic order. Recent cases even suggest a turn to a less open and more national self-perception of domestic courts. While this reflects to some extent the multiple – and sometimes conflicting – roles domestic courts perform at the intersection of legal orders, the article argues that the open and flexible stance many domestic courts take when faced with international judgments is better suited to cope with the complex and plural legal reality than systematically judging anew on matters already decided by the human rights courts.
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VAN ALEBEEK, ROSANNE. "Domestic Courts as Agents of Development of International Immunity Rules." Leiden Journal of International Law 26, no. 3 (July 31, 2013): 559–78. http://dx.doi.org/10.1017/s0922156513000241.
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AbstractThis paper explores the role of domestic courts in the development of international immunity rules. It assesses how domestic immunity decisions take meaning in the process of law formation and law determination, and examines whether the distinct influence of domestic-court decisions (as compared to international-court decisions) in that process results in a different role, and concomitant different rules, in the process of interpretation of rules of international law. The paper argues that while domestic courts are as a matter of international law bound by the same rules of interpretation as international courts, they are particularly well placed to address access to court concerns raised by immunity rules and may play a prominent role in the development of international law in this field in the years to come.
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Muharremi, Robert. "The Concept of Hybrid Courts Revisited: The Case of the Kosovo Specialist Chambers." International Criminal Law Review 18, no. 4 (November 10, 2018): 623–54. http://dx.doi.org/10.1163/15718123-01804008.
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The article analyses and criticizes the concept of hybrid courts. The main proposition is that the concept of hybrid courts is unclear and that there are no clear criteria which would provide guidance for establishing if a judicial body is a hybrid court or not. The idea of hybrid courts is conceptually misleading because it creates the perception that hybrid courts are a separate institutional category different from international and domestic criminal courts. The author argues that the concept of hybrid courts should therefore be abandoned in favour of clearer criteria which distinguish between international and domestic courts. Analysing the Kosovo Specialist Chambers from this perspective, the author argues that the Kosovo Specialist Chambers are an international criminal court and not a domestic court which has legal implications, such as concerning immunity of heads of state.
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Voeten, Erik. "Populism and Backlashes against International Courts." Perspectives on Politics 18, no. 2 (June 20, 2019): 407–22. http://dx.doi.org/10.1017/s1537592719000975.
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International courts, like domestic courts, protect liberal limits on majoritarianism. This sometimes puts these courts in a position to protect the property rights of the “corrupt elites” that are targeted by populists or the civil liberties of those who are targeted in domestic populist identity politics. Moreover, populism offers an ideology to attack the authority of a court rather than just its individual rulings. An empirical examination illustrates the plausibility of this argument. A large number of backlashes against international courts arise from judgments that reinforce local populist mobilization narratives. Populist backlashes against international courts are not just about sovereignty but often follow efforts to curb domestic courts, usually for similar reasons. Yet populist backlashes do not always succeed, either because populist leaders do not follow up on their exit threats or because populism is too thin an ideology for creating successful multilateral reform coalitions.
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Kosař, David, and Lucas Lixinski. "Domestic Judicial Design by International Human Rights Courts." American Journal of International Law 109, no. 4 (October 2015): 713–60. http://dx.doi.org/10.5305/amerjintelaw.109.4.0713.
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Regional human rights courts in Europe and the Americas came into being in the wake of World War II. The European Court of Human Rights (ECHR) and Inter-American Court of Human Rights (IACHR) were established in order to adjudicate on alleged violations of the rights of individuals. Yet, since their inception these courts have also influenced other areas of international law. A part from their impact on general international law, their case law has had significant spill over effects on international criminal law, international refugee law, international environmental law, the law of armed conflicts, and the law of the sea.
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Longobardo, Marco. "State Immunity and Judicial Countermeasures." European Journal of International Law 32, no. 2 (April 23, 2021): 457–84. http://dx.doi.org/10.1093/ejil/chab013.
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Abstract This article explores whether domestic courts can deny jurisdictional immunity of a state as a countermeasure. The article offers a survey of state practice that, according to some scholars, would support this argument, demonstrating that the corresponding practice is scarce, and that relevant domestic legislation denying jurisdictional immunity is not adopted as a countermeasure. Typically, countermeasures are adopted by political organs, which are responsible for the state’s international relations and which can assess what is a lawful response to a violation of international law. Domestic courts are not entitled to adopt countermeasures without the involvement of the executive organs that are competent for the international relations of the state. This article demonstrates that a domestic court’s denial of sovereign immunity as a countermeasure is unlawful without a prior determination of the government, and it is highly impractical when that determination is provided.
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Schermers, Henry G. "The Role of Domestic Courts in Effectuating International Law." Leiden Journal of International Law 3, no. 3 (December 1990): 77–85. http://dx.doi.org/10.1017/s0922156500002193.
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In his article on the implementation of international law by the domestic courts in the United States, Richard Falk focuses on the possible role of domestic courts with respect to the acts of foreign policy which may be contrary to international law. In general that role is limited. This is the same in Europe. Falk mentions efforts of individuals, to change national foreign policy by means such as the Russell Tribunal, boycotts of products, blocking of tracks and the occupation of buildings. Such activities also happen in Europe but rather with the intention to attract public attention than with the purpose to litigate in court. In Europe it is generally accepted that courts should not take policy decisions of that kind.
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Kratochvíl, Jan. "Subsidiarity of Human Rights in Practice: The relationship between the Constitutional Court and Lower Courts in Czechia." Netherlands Quarterly of Human Rights 37, no. 1 (March 2019): 69–84. http://dx.doi.org/10.1177/0924051918820987.
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The principle of subsidiarity is viewed as the cornerstone of the protection of human rights. Internationally, it is primarily the responsibility of states to ensure that human rights are respected and protected on a domestic level and any international protection mechanism is only supplementary. At the domestic level, apex courts in a country also provide only subsidiary protection of human rights, which must first and foremost be protected by lower level courts. Subsidiarity has two facets: the obligation of lower courts to directly apply human rights and the corresponding deference of higher courts to that application. Little attention has been given so far to how domestic subsidiarity of human rights works in practice and how human rights are in fact applied by the primary level of court systems. This article uses Czechia as a case study to test the hypothesis that if lower courts apply human rights, then there is a lower chance that the Constitutional Court, as an apex court, will find a human rights violation in that particular case. By statistical analysis of hundreds of decisions of Czech courts this hypothesis is confirmed. The findings are indicative that subsidiarity actually works in practice.
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Keith, KJ. "THE INTERNATIONAL COURT OF JUSTICE AND CRIMINAL JUSTICE." International and Comparative Law Quarterly 59, no. 4 (October 2010): 895–910. http://dx.doi.org/10.1017/s0020589310000588.
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AbstractDespite appearances to the contrary, the International Court of Justice can and does have much to say on matters of criminal justice. This article considers four areas in which such matters arise before the Court: jurisdiction over criminal offences allegedly committed abroad and immunity from that jurisdiction; principles of individual criminal liability and the potential for concurrent State responsibility; issues of evidence and proof; and the Court's review of the exercise of those domestic criminal powers which are subject to international regulation. In the process of addressing these issues, the ICJ has contributed to the development of fundamental principles of criminal law, while drawing on the experience of domestic courts.
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Kahraman, Filiz, Nikhil Kalyanpur, and Abraham L. Newman. "Domestic courts, transnational law, and international order." European Journal of International Relations 26, no. 1_suppl (September 2020): 184–208. http://dx.doi.org/10.1177/1354066120938843.
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This article revisits the relationship between law and international order. Building on legal research concerned with transnational law, we argue that domestic courts are endogenous sites of international political change. National courts are constitutive of international order by generating new rules, adjudicating transnational disputes, and bounding state sovereignty. We illustrate the ways in which national courts create new political opportunities by updating three core international relations theory debates. Recognizing the role of domestic courts as global adjudicators enhances our understanding of regime complexity and international forum shopping. By re-interpreting aspects of conventional international law, and engaging in cross-border dialogue, domestic courts challenge our understanding of international diffusion and judicialization. By redefining the boundaries of state authority and sovereignty, national courts create potential for conflict and cooperation. A transnational law perspective illustrates the porous nature between domestic and international spheres, highlighting how domestic courts have become adjudicators for state and non-state actors that operate across mainstream levels of analysis. Our approach calls on scholars to move beyond analyzing national legal systems as mechanisms of compliance to instead consider domestic courts as co-creators of international order.
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Nollkaemper, André. "Internationally Wrongful Acts in Domestic Courts." American Journal of International Law 101, no. 4 (October 2007): 760–99. http://dx.doi.org/10.1017/s0002930000037714.
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This article explores the relevance of the law of international responsibility to the practice of domestic courts. In addition to proposing analytical distinctions that allow us to systematize and differentiate domestic case law pertaining to international responsibility, the article essentially advances three arguments. First, in certain circumstances domestic courts may find that a breach of an international obligation by the forum state constitutes an internationally wrongful act. Principles of international responsibility may be applicable to such a wrong. Second, domestic courts may contribute to the implementation of the international responsibility of states by ensuring that principles of cessation and reparation are given effect. Third, international law leaves much leeway to states and their courts in applying principles of international responsibility in a specific domestic legal and factual context. The application of such principles will be colored by their interaction with domestic law and will vary among states.
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TZANAKOPOULOS, ANTONIOS, and CHRISTIAN J. TAMS. "Introduction: Domestic Courts as Agents of Development of International Law." Leiden Journal of International Law 26, no. 3 (July 31, 2013): 531–40. http://dx.doi.org/10.1017/s0922156513000228.
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AbstractThis introductory paper to the symposium hosted by the Leiden Journal of International Law, and edited by the authors, deals with the function of domestic courts as agents for the development of international law. The paper ‘sets the scene’ for the contributions to the symposium, which seek to trace the impact of domestic courts in the development of canonical areas of international law, such as jurisdiction, immunity, state responsibility, the law of international organizations/human rights, and the law of armed conflict/conduct of hostilities. It discusses the formal quality and actual influence of domestic-court decisions on the development of international-law, and introduces the concept of ‘agents’ of international-law development. This is the analytical perspective that the contributions to the symposium adopt.
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Albi, Anneli. "From the Banana Saga to a Sugar Saga and beyond: Could the Post-communist Constitutional Courts Teach the EU a Lesson in the Rule of Law?" Common Market Law Review 47, Issue 3 (June 1, 2010): 791–829. http://dx.doi.org/10.54648/cola2010034.
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During the Banana Saga in the 1990s, several German courts questioned the level of review of EU measures by the EU Courts. This article explores recent direct actions and domestic cases regarding the sugar market in the new Member States, which seem to corroborate the concerns raised during the Banana Saga. The point of departure is a recent judgment of the General Court, upholding the validity of a European Commission Regulation that retroactively imposed a fine on a country for surplus sugar held by private individuals, despite the fact that the Court acknowledged the absence of a textual basis for the Commission’s requirement to eliminate private household sugar, and despite the Court’s agreement that in practice it had been impossible to eliminate such sugar. The Court upheld the fine on the basis of teleological reasoning. The judgment is contrasted with the case law of post-communist constitutional courts, where in reaction to experiences during the Communist regime, a strong protection has been granted to legal certainty, non-retroactivity and property rights, and it is prohibited to impose obligations or sanctions retroactively or without a statute. It will be suggested that a more rigorous approach to the protection of these rights and principles, which the post-communist constitutional courts regard as the central elements of the rule of law, ought to become part of the EU’s “common constitutional traditions”.
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Abashidze, A. Kh, M. V. Ilyashevich, and A. M. Solntsev. "Anchugov & Gladkov v. Russia." American Journal of International Law 111, no. 2 (April 2017): 461–68. http://dx.doi.org/10.1017/ajil.2017.31.
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On April 19, 2016, in The Case Concerning the Resolution of the Question of the Possibility to Execute in Accordance with the Constitution of the Russian Federation the Judgment of the European Court of Human Rights of 4 July 2013 in the Case of Anchugov and Gladkov v. Russia in Connection with the Request of the Ministry of Justice of the Russian Federation (Anchugov & Gladkov (Russ.)), the Constitutional Court of the Russian Federation (Constitutional Court) held that decisions of the European Court of Human Rights (ECtHR) are binding on Russian courts, in accordance with Article 15(4) of the 1993 Constitution of the Russian Federation. At the same time, the Constitutional Court stressed the necessity of ensuring a reasonable balance between the obligation to implement ECtHR judgments and respect for the fundamental principles of the Russian Federation's constitutional system. The Constitutional Court found that because the ECtHR judgment in question implicitly conflicted with provisions of the Russian Constitution, Russian courts are not obliged to comply with the judgment regarding issues that remain in conflict; however, other means are available to the Russian legislature to give effect to the judgment. While the decision marks an important development in Russia's relationship with the European system of human rights, it is not inconsistent with the approach taken by a substantial number of European domestic courts in holding that treaty obligations to enforce decisions of international courts cannot justify violating domestic constitutional norms.
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Stewart, David P., and Ingrid B. Wuerth. "Sovereign Immunity as Liminal Space." European Journal of International Law 32, no. 4 (November 1, 2021): 1501–8. http://dx.doi.org/10.1093/ejil/chab101.
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Abstract Questions of foreign state immunity frequently involve the ‘liminal space’ between substance and procedure, between domestic and international law and between the domestic law of the forum states and domestic laws of other states. US courts typically (and rightly) rest their analysis not only upon relevant foreign law and international practice but also upon procedural norms that are not formally part of the Foreign Sovereign Immunities Act. Immunity frequently implicates both the reach and power of domestic courts and the authority, organization and expectations of foreign states. It is unsurprising, therefore, that the domestic procedures of the forum court and the internal laws of both the forum state and the foreign state play significant roles in immunity determinations, although the relative paucity of concrete evidence of state practice can make it very difficult to discern the content of customary international law. ‘Restatements of domestic law’ can play an important role in developing principles of immunity, perhaps especially in the liminal spaces between domestic and foreign, substance and procedure. Hopefully, institutes in other countries will produce works like the Restatement of the Law (Fourth): The Foreign Relations Law of the United States.
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F. Tatham, Allan. "Interpreting the EU-UK Trade and Cooperation Agreement before British courts." UNIO – EU Law Journal 7, no. 2 (December 31, 2021): 18–28. http://dx.doi.org/10.21814/unio.7.2.4027.
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The Trade and Cooperation Agreement between the European Union and the United Kingdom entered into force in early 2021. It represents another pillar in the new, post-Brexit relations between the two parties. Despite the express terms of the TCA, domestic courts will still have to deal with the effect of the Agreement in cases before them. The England and Wales Court of Appeal, in two recent judgments, has already given guidance to courts within their jurisdiction in how to approach the use of the TCA in their own decision-making. These judgments represent the first judicial pronouncements on the effect and interpretation of the TCA’s provisions in national courts.
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Petersen, Clement Salung. "Treaties in Domestic Civil Litigation: Jura Novit Curia?" Nordic Journal of International Law 80, no. 3 (2011): 369–402. http://dx.doi.org/10.1163/157181011x581236.
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AbstractMany international treaties regulate relations between states and private individuals (vertical treaty rules) and transnational relations between private individuals (transnational treaty rules), and domestic civil litigation often plays an important role in the enforcement of such rules. The actual impact of treaty rules in domestic civil litigation depends inter alia on the procedural principles governing the judicial application of law. In the European legal tradition of civil law, these principles are often expressed by the Latin adages “jura novit curia” (the court knows the law) and “da mihi factum, dabo tibi jus” (give me the facts, I give you the law). This article analyses how such procedural principles affect the obligations of domestic courts to apply vertical and transnational treaty rules in civil litigation and how, at the same time, international law can influence these domestic procedural principles in ways which create a complex relationship between international law and domestic civil procedure law.
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Treichl, Clemens, and August Reinisch. "Domestic Jurisdiction over International Financial Institutions for Injuries to Project-Affected Individuals." International Organizations Law Review 16, no. 1 (January 7, 2019): 105–36. http://dx.doi.org/10.1163/15723747-01601005.
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Project-affected individuals are increasingly bringing tort claims against international financial institutions in domestic courts. In the US, such plaintiffs such plaintiffs have regularly failed to overcome the obstacle of the defendant institutions’ jurisdictional immunity under the International Organizations Immunities Act. In pending litigation, the US Supreme Court has resolved a long-standing debate as to its scope. This paper examines the issue of jurisdictional immunity in the context of international project finance. It focuses on the specific frameworks established in treaties, analyses the interplay between international and domestic US norms and looks at possible implications of the exercise of domestic jurisdiction. A key finding is that US courts, at least previously, used to grant more extensive immunities than international law required. While doubts persist as to whether domestic courts are a suitable venue for claims brought by project-affected people, existing means of international dispute settlement should be strengthened.
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Gordeev, V. V. "Precedent law dialogue between Constitutional Court of Ukraine and the European Court of Human Rights." Uzhhorod National University Herald. Series: Law 2, no. 73 (December 15, 2022): 224–27. http://dx.doi.org/10.24144/2307-3322.2022.73.65.
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«Constitutional instrument of the European public order»: it is these now-known terms that the European Court of Human Rights (hereinafter - the Court) qualified in 1995 the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter - the Convention), in a decision issued by the Grand Chamber. Should we conclude from this that the Convention will be equated with the Constitution, and the Court with the constitutional court? Judges as guarantors of rights and freedoms, constitutional courts and the European Court of Human Rights influence each other, may pronounce on identical or similar issues – especially after the entry into force of the priority question of constitutionality – and sometimes seem to use equivalent standards of reference. However, constitutional courts constantly use the Court’s case law, but never mention it. In addition, the European Court no longer hesitates within its control to appropriate the decisions of the constitutionalcourts. Thus, a significant convergence of case law is emerging, which can lead to a double reading: should we be delighted by such complementarity of controls? Or consider, on the contrary, that these relations are based primarily on competition law? The dialogue of case law corresponds to all cases when, in the absence of an institutionalized procedure, the court decides to more or less freely use provisions from such and such a decision made by others. Among legal dialogues, the dialogue between domestic constitutional judges and the European Court of Human Rights is certainly the densest and most fruitful.
Dialogue between courts involves the implementation of institutional cooperation procedures. Although the treaty system did not provide for any institutional procedure for cooperation, the extension of the Court’s jurisdiction to issue advisory opinions is aimed at strengthening the interaction between the Court and national courts in order to consolidate the implementation of the convention in accordance with the principle of subsidiarity. Constitutional courts occupy a very limited place in ECtHR case law and vice versa. The so-called «dialogue of judges» has its advantages and, in particular, allows to avoid misunderstandings.
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Chigara, Benedict Abrahamson. "The Administration of International Law in National Courts and the Legitimacy of International Law." International Criminal Law Review 17, no. 5 (October 15, 2017): 909–34. http://dx.doi.org/10.1163/15718123-01705004.
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Increasingly, national courts find themselves called upon to determine matters where un lex specialis; regional supranational law; customary international law and domestic law all appear relevant. Lower court judges may be challenged significantly because such matters often lie beyond their day-to-day practice of interpreting and applying national law to local legal issues. This article recommends that to ensure both justice and legitimacy of international law, national courts − especially lower courts, should a priori consider whether the matters before them would be best served by appointing an expert academician ‘friend of the court’ to illuminate the contested applicable international law.
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Powell, Emilia Justyna. "Two Courts Two Roads: Domestic Rule of Law and Legitimacy of International Courts." Foreign Policy Analysis 9, no. 4 (July 10, 2012): 349–68. http://dx.doi.org/10.1111/j.1743-8594.2012.00198.x.
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von Bogdandy, Armin, and Stephan W. Schill. "Overcoming absolute primacy: Respect for national identity under the Lisbon Treaty." Common Market Law Review 48, Issue 5 (October 1, 2011): 1417–53. http://dx.doi.org/10.54648/cola2011057.
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The present article examines the function of the revised identity clause in Article 4(2) TEU. By focusing on the fundamental political and constitutional structures of Member States, Article 4(2) TEU provides a perspective to overcome the idea of absolute primacy of EU law and the underlying assumption of a hierarchical model to understand the relationship between EU law and domestic constitutional law. The revised identity clause in Article 4(2) TEU not only demands respect for national constitutional identity, a notion determined through a close interplay of domestic constitutional law and EU law, but can be understood as permitting domestic constitutional courts to invoke, under certain limited circumstances, constitutional limits to the primacy of EU law. At the same time, Article 4(2) TEU, in tandem with the principle of sincere cooperation contained in Article 4(3) TEU, embeds these constitutional limits into an institutional and procedural framework in which domestic constitutional courts and the Court of Justice interact closely as part of a composite system of constitutional adjudication.
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Eichensehr, Kristen E. "Animal Science Products, Inc. v. Hebei Welcome Pharmaceutical Co. Ltd." American Journal of International Law 113, no. 1 (January 2019): 116–22. http://dx.doi.org/10.1017/ajil.2018.102.
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When a foreign country's law is relevant to a case in U.S. federal court and the foreign country files an official statement about the meaning of its law, how should U.S. courts treat the foreign government's representations? In Animal Science Products, Inc. v. Hebei Welcome Pharmaceuticals Co., the Supreme Court of the United States held that “[a] federal court should accord respectful consideration to a foreign government's submission, but is not bound to accord conclusive effect to the foreign government's statements.” In so doing, the Supreme Court settled a disagreement between the courts of appeals and reversed an opinion of the Second Circuit that had given conclusive effect to the Chinese government's representations about its domestic law. Animal Science Products provides important guidance to federal courts faced with increasingly frequent filings by foreign governments, but it leaves unresolved significant questions about deference to foreign sovereign amici and preserves existing debates about the nature of “respectful consideration.”
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Gáspár-Szilágyi, Szilárd. "Let Us Not Forget about the Role of Domestic Courts in Settling Investor-State Disputes." Law & Practice of International Courts and Tribunals 18, no. 3 (February 7, 2020): 389–415. http://dx.doi.org/10.1163/15718034-12341410.
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Abstract This overview illustrates that there is a gap in our knowledge of how domestic courts handle investor-State disputes. As it turns out, some foreign investors use the domestic courts of the host State prior to initiating investment treaty arbitration. Subject matter-wise, these cases are very diverse and not all of them are initiated by investors against the host State. Moreover, in the four countries analysed, investors often appealed to the highest courts of the land, but they lost more cases than they won. These findings should help UNCITRAL Working Group III conceptualize the meaning of “investor-State dispute” and the relationship between domestic and international methods of ISDS. This overview concludes by inviting further empirical research to understand how domestic courts handle investor-State disputes. This in turn can help us develop normative arguments as to why domestic courts should be included in the reform process.
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Sehnálek, David. "The European Perspective on the Notion of Precedent – are EU and Czech Court Decisions Source of Law?" European Studies 7, no. 1 (December 1, 2020): 125–53. http://dx.doi.org/10.2478/eustu-2022-0050.
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Summary The article focuses on the substance and effects of judicial decisions. Judgements of domestic courts and those of the Court of Justice of the EU are examined separately in terms of their nature. Specifically, the article deals with the question of their binding effect and also whether they can be considered a source of Czech and EU law. The author discusses and questions the opinion, which is currently prevailing among Czech authors, that decisions of supreme courts should be considered binding and simultaneously a source of law comparable to precedents, as they are known in Anglo-American law. The article further points out that the alleged similarity between judgements rendered by the Czech courts and the Court of Justice of the EU is merely ostensible, as each of them has a different nature and effects in the Czech legal environment. The conclusion is, in simple terms, that judgements of domestic courts generally cannot be considered a source of law, that they do not contain any new legal norms and, finally, that they comprise merely a simple and changeable interpretation of legal norms created by the law-making body.
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Farnelli, Gian Maria. "Back to Lotus? A Recent Decision by the Supreme Court of India on an Incident of Navigation in the Contiguous Zone." International Community Law Review 16, no. 1 (February 3, 2014): 106–22. http://dx.doi.org/10.1163/18719732-12341272.
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Abstract This article stems from a recent decision of the Indian Supreme Court concerning whether the criminal courts of the Indian State of Kerala have jurisdiction over two Italian marines accused of killing two Indian fishermen. The analysis is critical of the Court’s reasoning and findings over the two main defences raised by the accused: namely, the lack of jurisdiction of the coastal state on the basis of the law of the sea and in relation to the customary rule on the jurisdictional immunity of military personnel for acts carried out in their line of duty. Finally, this study also critically examines the operational decision of the Indian Supreme Court in providing for the establishment of a specific domestic court deemed competent to entertain its jurisdiction over the cause in view of its international nature.
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Aaron, David. "Reconsidering Dualism: The Caribbean Court of Justice and the Growing Influence of Unincorporated Treaties in Domestic Law." Law & Practice of International Courts and Tribunals 6, no. 2 (2007): 233–68. http://dx.doi.org/10.1163/156918507x217594.
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AbstractIn dualist states, international and domestic legal commitments have traditionally existed on entirely separate planes. Despite the evolution of international legal norms since the end of the Second World War, courts in dualist states have continually opposed using international law to interpret domestic legislation. The author suggests that the traditional dualist view, in which international treaty commitments have no domestic effect until incorporated through the dualist state's domestic legislative process, is weakening.This paper begins with an overview of the monist-dualist distinction in international law and explains dualism's approach to the relationship between domestic and international law. The next section of the paper explores traditional dualist jurisprudence on the role of unincorporated treaties in domestic law and explains why judges have clung to a rigid application of dualism. The weakening of this inflexible approach is then examined, culminating in an analysis of the pivotal recent judgment of the Caribbean Court of Justice in Boyce. This paper concludes that dualism is waning, particularly in cases where domestic law falls short of international human rights standards, as courts demonstrate an increased willingness to use unincorporated treaties as interpretive aids when construing and applying domestic law.
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Cai, Congyan. "International Law in Chinese Courts During the Rise of China." American Journal of International Law 110, no. 2 (April 2016): 269–88. http://dx.doi.org/10.5305/amerjintelaw.110.2.0269.
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The number of countries in which domestic courts are actively engaged with major public affairs has increased markedly since the early 1990s. In many transitional states, in particular, domestic courts have ruled on great constitutional controversies, which influence the national political process. They have also taken an active role in the application of international law— especially human rights treaties—and at times treat such treaties as a “New Standard of Civilization.” In particular, domestic courts have at times invoked international law in becoming more aggressive toward the executive branch. This trend has been one normative element inspiring some theorists to propose a new field known as comparative international law. This article highlights a different set of elements that become manifest in assessing the rapid overall rise in references to, and application of, international law by courts in China in recent years.
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Sugarman, Norman, and Kenneth Byalin. "Meeting the Family court's Need for mental health and human services: A comparison of direct service and community organization approaches." Journal of Psychiatry & Law 21, no. 3 (September 1993): 319–36. http://dx.doi.org/10.1177/009318539302100303.
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The family, juvenile, and domestic-relations courts face America's most pressing social problems without the requisite mental health and social services. Two alternative approaches to this dilemma—the direct service approach, which encourages the expansion of court-related mental health services, and the community organization approach, which urges the stimulation of community agencies to better serve the needs of the court population—were implemented by an experimental family court mental health service in an urban setting. Analysis of this experience suggests that there are general principles favoring the community organization approach.
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Fontanelli, Filippo. "Criminal Proceedings Against Albers." American Journal of International Law 107, no. 3 (July 2013): 632–38. http://dx.doi.org/10.5305/amerjintelaw.107.3.0632.
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In August 2012, the First Criminal Division of the Court of Cassation (Supreme Court or Court), the highest Italian domestic court, issued a judgment upholding Germany’s sovereign immunity from civil claims brought by Italian war crime victims against Paul Albers and eight others in the Italian courts (Albers). In so doing, the Court overruled its own earlier decisions and also reversed the judgment of April 20, 2011, by the Italian Military Court of Appeal (Military Court), which had upheld such claims relating to war crimes committed by German forces in Italy during World War II. With this ruling, the Court of Cassation put an end to its decade long effort to find an exception to the well-known rule of customary international law providing for sovereign immunity from foreign civil jurisdiction for actsjure imperii. Thisrevirementresulted from the Court’s decision to give effect to the judgment of the International Court of Justice (ICJ) inGermany v. Italy.
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Bronckers, Marco. "The relationship of the EC courts with other international tribunals: Non-committal, respectful or submissive?" Common Market Law Review 44, Issue 3 (June 1, 2007): 601–27. http://dx.doi.org/10.54648/cola2007059.
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This article inquires how the EC courts deal with judgments of other international courts and tribunals, such as the European Court of Human Rights, WTO tribunals, and panels set up by the EC’s proliferating number of bilateral agreements. Having reviewed the case law to date, the essay focuses on one question in particular: should the EC courts consider themselves bound by rulings of other international tribunals? Although the ECJ recognized in the early 1990s that it might be so bound, to date it has never accepted this in actual case. The article submits that, in the absence of a specific instruction in a particular international agreement, there are strong reasons for the EC courts not to bind themselves a priori to rulings of other international tribunals. The EC Courts should normally follow the rulings of the international tribunal, but should keep the power to deviate from another international ruling in narrowly defined circumstances. Reference is made to the practice of national courts. Allowing the EC courts to perform such limited checks and balances should not weaken the Community’s credibility as a reliable negotiating partner. It will also facilitate the domestic reception of international law in the EC legal order.
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Bradley, Curtis A. "Intent, Presumptions, and Non-Self-Executing Treaties." American Journal of International Law 102, no. 3 (July 2008): 540–51. http://dx.doi.org/10.2307/20456642.
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Ever since the Supreme Court’s 1829 decision in Foster v. Neilson, it has been settled that some treaties ratified by the United States are “non-self-executing” and thus are not enforceable in U.S. courts unless implemented by Congress. Despite its pedigree, both the theory behind the self-execution doctrine and its mechanics have long befuddled courts and commentators. There is significant uncertainty, for example, concerning the materials that are relevant to the self-execution analysis, whose intent should count in determining self-executing status, the proper presumption that should be applied with respect to self-execution, and the domestic legal status of a non-self-executing treaty.
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Streiff, Fritz. "International Justice in Domestic Courts: Lessons Learned from German Courts and Warning Signs." Confluences Méditerranée N° 126, no. 3 (November 9, 2023): 117–23. http://dx.doi.org/10.3917/come.126.0118.
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Le moment est bien choisi pour réfléchir à notre situation en matière de compétence universelle. La plus haute juridiction du système judiciaire français, la Cour de cassation, a décidé le 12 mai 2023 que les affaires d’atrocités internationales pouvaient continuer à être jugées par les tribunaux français sur la base du principe de la compétence universelle. Cette question s’est posée après que la Cour a décidé, en novembre 2021, qu’un suspect syrien ne pouvait être jugé pour « complicité de crimes contre l’humanité » au motif que la loi syrienne ne prévoit pas cette incrimination exacte. Cette décision a été un désastre pour les acteurs du dossier syrien et, plus généralement, pour tous ceux qui sont engagés dans la lutte contre l’impunité. La Cour de cassation vient de clarifier cette interprétation et de revenir sur sa décision, au grand soulagement des acteurs de la société civile impliqués dans le dossier, au premier rang desquels les collègues syriens.
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Benvenisti, Eyal. "Reclaiming Democracy: The Strategic Uses of Foreign and International Law by National Courts." American Journal of International Law 102, no. 2 (April 2008): 241–74. http://dx.doi.org/10.2307/30034538.
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Not so long ago the overwhelming majority of courts in democratic countries shared a reluctance to refer to foreign and international law. Their policy was to avoid any application of foreign sources of law that would clash with the position of their domestic governments. Many jurists find recourse to foreign and international law inappropriate. But even the supporters of reference to external sources of law hold this unexplored assumption that reliance on foreign and international law inevitably comes into tension with the value of national sovereignty. Hence, the scholarly debate is framed along the lines of the well-known broader debate on “the countermajoritarian difficulty.” This article questions this assumption of tension. It argues that for courts in most democratic countries—even if not for U.S. courts at present—referring to foreign and international law has become an effective instrument for empoweringthe domestic democratic processes by shielding them from external economic, political, and even legal pressures. Citing international law therefore actually bolsters domestic democratic processes and reclaims national sovereignty from the diverse forces of globalization. Stated differently, most national courts, seeking to maintain the vitality of their national political institutions and to safeguard their own domestic status vis-a-vis the political branches, cannot afford to ignore foreign and international law.
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Charney, Jonathan I. "International Criminal Law and the Role of Domestic Courts." American Journal of International Law 95, no. 1 (January 2001): 120–24. http://dx.doi.org/10.2307/2642041.
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Lupu, Yonatan, Pierre-Hugues Verdier, and Mila Versteeg. "The Strength of Weak Review: National Courts, Interpretive Canons, and Human Rights Treaties." International Studies Quarterly 63, no. 3 (August 26, 2019): 507–20. http://dx.doi.org/10.1093/isq/sqz026.
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Abstract Enforcement of international law is often delegated to national courts, creating a space for them to play a part in international judicialization. Under what conditions can they do so? We argue that the answer depends on the relationship between the political and legal constraints national courts face. National courts must be careful to safeguard their independence in the face of potential backlash, but they face constraints in terms of the legal mechanisms available to them when enforcing international law. We focus on the availability of two legal mechanisms: direct effect, under which courts apply treaties directly, setting aside inconsistent domestic laws; and canons of interpretation, under which courts strive to interpret domestic laws in conformity with treaties. We find that the effects of human rights treaty ratification is greater when courts have the canon available to them than it is when courts have direct effect available to them.
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Damrosch, Lori Fisler. "The Justiciability of Paraguay’s Claim of Treaty Violation." American Journal of International Law 92, no. 4 (October 1998): 697–704. http://dx.doi.org/10.2307/2998133.
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The U.S. Government’s position asserting nonjusticiability of the treaty claims raised by Paraguay in the domestic and international lawsuits is disturbing. The Government’s amicus filings at the court of appeals and the Supreme Court denied that Paraguay’s claims belonged in federal court (or indeed in any court at all); at die International Court of Justice, the United States admitted a treaty violation but denied the competence of that tribunal to enter a judicial remedy. At one or another phase of these proceedings, the U.S. Government pressed a variety of arguments that (if accepted) would rule out virtually any judicial consideration of a treaty-based claim. The haste with which the Supreme Court denied a stay in Breard’s case foreclosed adequate consideration of the justiciability of such claims in domestic courts and also effectively barred Paraguay from achieving the relief it sought on the international plane.
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Flaherty, Martin S. "Judicial Globalization in the Service of Self-Government." Ethics & International Affairs 20, no. 4 (December 2006): 477–503. http://dx.doi.org/10.1111/j.1747-7093.2006.00046.x.
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For at least the past several decades, judges around the world have been looking beyond their own states' jurisprudence to international law and the decisions of foreign courts in order to apply domestic law. This widespread practice is part of a phenomenon that Anne-Marie Slaughter calls “judicial globalization.” The American judiciary, however, has exhibited a distinct diffidence toward the use of comparative and international law to decide domestic cases, a diffidence that extends to many elected officials as well… .Various defenses of the Supreme Court's reliance on international and comparative sources have been made, not least by some of the Supreme Court justices themselves. None of the defenses, however, have met the democratic objections head-on. Instead, justifications have mainly defended the general utility of referencing additional sources rather than the specific legitimacy of referencing sources from outside the U.S. legal system. The defenses to date fall short for at least two sets of reasons. They fail to grapple with legitimate concerns about the practice. In consequence, they offer no reasons for those opposed to this practice to reconsider their resistance.
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Bigge, David. "Rule of Law Without International Courts." Law & Practice of International Courts and Tribunals 21, no. 3 (November 18, 2022): 483–97. http://dx.doi.org/10.1163/15718034-12341487.
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Abstract In commenting on the roles of Elihu Root and James Brown Scott in the founding of the Permanent Court of International Justice (PCIJ), former International Court of Justice (ICJ) President Abdulqawi Yusuf stated “there can be no [international] rule of law without a court to apply it.” The American Society of International Law (ASIL)’s International Courts and Tribunals Interest Group recently hosted a symposium event to probe this statement. Without rehashing the voluminous scholarship on the international rule of law, this introduction to the symposium will explore specifically whether a court such as the ICJ or the PCIJ is a prerequisite to an international rule of law. The international court system as currently formulated plainly does not meet the requirements for the rule of law as often defined for domestic systems. Unless we are prepared to accept that there is no international rule of law, or only a partial or developing rule of law, this means that there must be an alternative definition of “rule of law” for international relations, which does not consider international courts as a prerequisite to rule of law in all circumstances, and highlights other enforcement mechanisms and arbitration. Accepting this point does not diminish the important role of international courts in the application of international law but does serve to emphasize how other mechanisms fill important rule-of-law gaps left by international courts. Each of the articles that follow this introduction addresses these mechanisms – including administrative bodies, sanctions, investigative mechanisms, and ad hoc arbitration – and how each mechanism interacts with the international court system.
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Prabhat, Devyani, and Jessica Hambly. "Bettering the Best Interests of the Child Determination: Of Checklists and Balancing Exercises." International Journal of Children’s Rights 25, no. 3-4 (November 17, 2017): 754–78. http://dx.doi.org/10.1163/15718182-02503008.
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The paper compares European Court of Human Rights (ECtHR) and uk court judgments on cross-border nationality cases concerning children and wholly domestic family law cases regarding children (without the cross-border element). It identifies different legal standards that apply to the well-being of children such as the best interests principle and the welfare principle and maps how successful these standards are in bringing in the views of children. It appears that cross-border nationality cases are unable to consider the interests of children as seriously as the wholly domestic family law cases. The domestic court approach of welfare brings in children’s views more effectively than nationality cases in domestic courts or at the ECtHR. It would benefit children if a rigorous best interests determination is carried out in nationality proceedings and a welfare approach is adopted consistent with family law cases.
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RONEN, YAËL. "Silent Enim Leges Inter Arma– but Beware the Background Noise: Domestic Courts as Agents of Development of the Law on the Conduct of Hostilities." Leiden Journal of International Law 26, no. 3 (July 31, 2013): 599–614. http://dx.doi.org/10.1017/s0922156513000265.
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AbstractThis article highlights the challenges to the operation of domestic courts as agents of development of the laws of armed conflict and particularly of the law on the conduct of hostilities. The first part of the article concerns the spillover from various branches of the laws of armed conflict to the law regarding the conduct of hostilities. The second part of the article addresses the structural constraints on domestic courts in deciding issues relating to the laws of armed conflict, focusing on the conflict between their role as guardians of national interests and their judicial commitment to protecting the individual. The cumulative effect of these characteristics of domestic litigation suggests that the laws of armed conflict, and particularly the law on the conduct of hostilities, are not necessarily well served by development through domestic jurisprudence.
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Haglund, Jillienne. "Domestic Politics and the Effectiveness of Regional Human Rights Courts." International Interactions 46, no. 4 (May 2, 2020): 551–78. http://dx.doi.org/10.1080/03050629.2020.1751624.
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Idrees, Rao Qasim, Rohimi Shapiee, and Haniff Ahamat. "Paradigm shift; the emergence of arbitral forum shopping in CPEC investment disputes." Journal of International Trade Law and Policy 18, no. 3 (November 15, 2019): 136–51. http://dx.doi.org/10.1108/jitlp-05-2019-0022.
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Purpose The phenomena of arbitral forum shopping to resolve a commercial investment dispute is still under development and more complicated in many states. However, for Pakistan, it seems in an evolutionary phase, where the country is struggling hard to adopt the best practice of dispute resolution through forum shopping clauses. This struggle is even more inflated with huge Chinese investment through China Pakistan economic corridor (CPEC) projects in Pakistan, which come alongside with commercial investment disputes. For this purpose, the current treaty or contract-based system between China and Pakistan and litigation based domestic civil court structure look obsolete, hence, appear to require reinstatement of forum shopping clauses under concerned treaties or contracts for CPEC investment-related issues. Design/methodology/approach The authors choose a legal research method. The research design is a comparative analysis between CPEC contracts and dispute resolution mechanism between China and Pakistan and also the domestic civil court’s litigation system. This analysis selected by the authors due to inefficient bilateral investment arrangements and efficient resolution of future commercial disputes in CPEC. While the international arbitration system is included in the assessment were particular in the time and space context. The comparison comprises on dispute resolution clauses in free trade agreement (FTA) and bilateral investment treaties (BIT) between China and Pakistan and the system of resolving disputes by CPEC clauses. Findings The authors finds that in the absence of CPEC forum shopping clause under dispute resolution system, Pakistan is highly at risk to lose foreign investors, and therefore, set back the goal of long term economic sustainability in the region. However, China has already made its investment policies safer with establishing three international commercial courts (also referred to as Belt and Road courts), one in Xi’an for the land-based Silk Road Economic Belt, one in Shenzhen for the Maritime Silk Road and one in Beijing that will serve as the headquarters. These courts will be offering litigation, arbitration and mediation services. According to one view, China aims to have all belt and road initiative (BRI) disputes resolved by these courts. This makes Pakistan position more awkward and needs proactive measures, as CPEC investment is based on Pakistan foreign direct investment policies and legal structure. Therefore, it will be complicated and less favourable for Pakistan to deal with such cases under Chinese Courts. Originality/value The paper’s primary contribution is finding that comprehensive analysis of alternative dispute resolution mechanism between China and Pakistan over CPEC investment is inevitable. A socio-legal research combine with an examination of Singapore International Commercial Court functions and mechanism and CPEC plans further contributes to ascertain the best model of the settlement of commercial disputes under investments in Pakistan. This research paper anticipates future economic and legal problems, which Pakistan may encounter.
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Guim, Mauricio. "The Judicial Trilemma visits Latin American Judicial Politics." AJIL Unbound 111 (2017): 354–58. http://dx.doi.org/10.1017/aju.2017.80.
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The Judicial Trilemma, by Jeff Dunoff and Mark Pollack, studies the dynamic relations between accountability, transparency, and independence, and suggests that designers can only maximize two of these three values at once. They can create a court that has high levels of (1) independence and accountability, (2) transparency and independence, or (3) accountability and transparency, but only at the cost of having a low level of the third value. The article explores these ideas using four different international tribunals, but its insights are not limited to international courts. Domestic designers also have to decide what levels of accountability, independence, and transparency their courts should have, and in making a decision they will face the Judicial Trilemma and confront the hard choice of selecting primarily two out of three values.
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Mance, Lord. "JUSTICIABILITY." International and Comparative Law Quarterly 67, no. 4 (October 2018): 739–57. http://dx.doi.org/10.1017/s0020589318000271.
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AbstractThis article explores traditional conceptions of non-justiciability in British Courts in honour of Francis Mann. It highlights the move by domestic courts away from traditional ‘no-go’ areas towards a more nuanced and balanced understanding of the respective roles and competences of the executive and the judiciary; and sees this as a not unfavourable development in an era when domestic recourse is often the only practicable means by which an individual, as opposed to a State, may obtain redress for alleged misconduct on the international plane.
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Nollkaemper, André. "The Role of Domestic Courts in the Case Law of the International Court of Justice." Chinese Journal of International Law 5, no. 2 (January 1, 2006): 301–22. http://dx.doi.org/10.1093/chinesejil/jml027.
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May, Christopher. "Book Review: International Relations: Domestic Law Goes Global: Legal Traditions and International Courts." Political Studies Review 11, no. 1 (January 2013): 98–99. http://dx.doi.org/10.1111/1478-9302.12000_40.
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Loven, Claire. "“Verticalised” cases before the European Court of Human Rights unravelled: An analysis of their characteristics and the Court’s approach to them." Netherlands Quarterly of Human Rights 38, no. 4 (October 19, 2020): 246–63. http://dx.doi.org/10.1177/0924051920965753.
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Based on Article 34 European Convention on Human Rights, individual applications must be directed against one of the Convention States. Originally ‘horizontal’ cases therefore must be ‘verticalised’ in order to be admissible. This means that a private actor who had first brought a procedure against another private actor before the domestic courts, must complain about State (in)action in his application to the European Court of Human Rights. Recently, some scholars and judges have raised procedural issues that may arise in these cases, but generally, these ‘verticalised’ cases have remained underexplored. To unravel verticalised cases before the ECtHR and to better understand procedural issues that may arise from them, this article provides a deeper understanding of the origins of verticalised cases and the Court’s approach to them. It is explained that verticalised cases before the ECtHR can be very different in nature. These differences are rooted in the different types of horizontal conflicts that may arise on the domestic level, the different relations between private actors they may concern, and the different Convention rights that may be at stake. The wide variety of verticalized cases is also reflected in the Court’s approach to them, as is the second main topic that the present article explores.
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Шуберт, Татьяна, and Tatyana Shubert. "Problems of ECHR Decisions Implementation into Domestic Law." Journal of Russian Law 3, no. 6 (June 5, 2015): 0. http://dx.doi.org/10.12737/11443.
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The article examines the ECHR legal nature and types of its decisions, analyzes the activities of the Government of the Russian Federation and the RF Ministry of Justice on the implementation of the European Court of Human Rights’ judgments. The author notes the role of the Plenum of the Supreme Court of the Russian Federation in ensuring uniform application of the Convention and Protocols thereto, ratified by the Russian Federation, by the courts of general jurisdiction. The author analyzes reasons for slow and incomplete implementation of the ECHR decisions, and comes up with the measures for their implementation. The article discusses peculiarities of the execution of the ECHR judgments in the Russian Federation: mechanistic execution of the decisions, lack of a systematic approach to the legislation analysis, absence of identification of causes for non-compliance of the regulations with the Convention on Rights of Man and Citizen, lack of coordination between bodies executing the ECHR decisions, inadequate budgetary procedures and lack of funds. The author proposes to analyze structural and general deficiencies in the national law and practice with regard to the ECHR decisions; provides recommendations to improve the mechanism for the judicial decisions’ implementation; determines lines of development for legal regulation of relations in the field of ECHR judgments’ implementation in the Russian legislation.
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Zglinski, Jan. "The new judicial federalism: the evolving relationship between EU and Member State courts." European Law Open 2, no. 2 (June 2023): 345–71. http://dx.doi.org/10.1017/elo.2023.27.
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AbstractA wind of change is blowing through the European judicial landscape. During the past decade, the European Union (EU) judiciary has undergone its biggest institutional overhaul in generations, the rise of authoritarian populism in Central and Eastern Europe has prompted a Rule of Law crisis, several supreme and constitutional courts challenged the supremacy of EU law, while the Court of Justice re-articulated the scope of the duty to refer under Article 267 TFEU and, for the first time, found that domestic last-instance courts breaching it triggered state liability. This Article argues that these and similar developments, once looked at together, suggest that something fundamental has shifted in the EU’s judicial architecture. A new form of judicial federalism has emerged, which departs from the traditional way in which relations between EU and Member State courts used to be structured. Although this new federalism is multifaceted and is marked by both centripetal and centrifugal forces, its distinguishing feature is a stronger centralisation, which manifests itself in a considerably expanded federal judiciary, a greater emphasis on hierarchy, a more careful use of European judicial resources, as well as tighter supervision of national procedures and court structures.