Sources and the Enforcement of International Law

2018 ◽  
Author(s):  
Antonios Tzanakopoulos ◽  
Eleni Methymaki
Keyword(s):  
International Law ◽  
Rule Of Law ◽  
Court Decisions ◽  
Domestic Court ◽  
Domestic Courts ◽  
The Law ◽  
Important Position ◽  
The Ideal

This chapter examines the role of domestic courts in the ideal continuum commencing from sources and ultimately ending in the enforcement of the law in a specific case. It asks whether domestic court decisions are a cause (source) or an effect (enforcement) of international law. The chapter argues that the enforcement of international law is reflexive, rather than reactive. There is thus no real continuum, with domestic courts occupying this or that position on it. Rather, domestic court decisions are both part of the cause and of the effect of international law. The enforcement of a rule of law in a specific case constitutes, in accordance with the sources doctrine, yet another brick in the wall of that same ever-changing rule. And given the increasingly important position that domestic courts are assuming in the enforcement of international law, they become ever more important agents of the development of that law.

Domestic Courts as Agents of Development of International Immunity Rules

2013 ◽  
Vol 26 (3) ◽  
pp. 559-578 ◽  
Author(s):  
ROSANNE VAN ALEBEEK
Keyword(s):  
International Law ◽  
Court Decisions ◽  
Domestic Court ◽  
International Courts ◽  
International Court ◽  
Domestic Courts ◽  
To Come

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.

National Legislatures

2018 ◽  
Author(s):  
Kevin L. Cope ◽  
Hooman Movassagh
Keyword(s):  
International Law ◽  
Common Law ◽  
Court Decisions ◽  
Domestic Court ◽  
Comparative Analyses ◽  
Judicial Decisions ◽  
National Courts ◽  
Legislative Branch ◽  
National Legislatures

One critique of some common-law comparative legal academies is their intensively “court-centric” focus, which, some believe, “marginalize[s]” the role of the legislative branch. The same may be said of the extant comparative international law literature: most of it concerns the interpretive approaches of national courts. In fact, one of the field’s seminal pieces characterizes comparative international law as involving “comparative analyses of various domestic court decisions.” Not surprisingly, then, nearly all of this volume’s contributions deal mostly or exclusively with courts and judicial decisions. We agree that courts can play a large part in diversifying how international law works across different systems, but we contend that the foundation of the comparative international law project lies elsewhere. We argue that among the most important and underappreciated interpretative acts—and therefore, those currently most needing study—are the international law interpretations of national legislatures.

The Complexity of Sabbatino

1964 ◽  
Vol 58 (4) ◽  
pp. 935-951 ◽  
Author(s):  
Richard A. Falk
Keyword(s):  
Supreme Court ◽  
International Law ◽  
Court Decisions ◽  
Domestic Court ◽  
Judicial Decision ◽  
Partial Analysis ◽  
The Supreme Court ◽  
Supreme Court Decisions

Banco Nacional de Cuba v. Sabbatino is a seminal decision, interpreting significantly the role of a domestic court in an international law case. At the same time, it avoids reaching definitive results. Very little is settled once and for all by the Supreme Court. This realization prompts caution. Sabbatino will not yield an authoritative interpretation, except, perhaps, as a consequence of subsequent Supreme Court decisions. A commentator must be content, therefore, with the less dramatic claims of provisional and partial analysis. Those that claim more are misleading us. The complexity of Sabbatino is almost certain to poison hordes of over-clarifiers who are descending upon this major judicial decision as vultures upon a freshly dead carcass.

COMPARATIVE INTERNATIONAL LAW? THE ROLE OF NATIONAL COURTS IN CREATING AND ENFORCING INTERNATIONAL LAW

2011 ◽  
Vol 60 (1) ◽  
pp. 57-92 ◽  
Author(s):  
Anthea Roberts
Keyword(s):  
International Law ◽  
National Court ◽  
Comparative Law ◽  
Court Decisions ◽  
Domestic Court ◽  
Comparative Analyses ◽  
National Courts ◽  
The Impact

AbstractAcademics, practitioners and international and national courts are increasingly seeking to identify and interpret international law by engaging in comparative analyses of various domestic court decisions. This emerging phenomenon, which I term ‘comparative international law’, loosely fuses international law (as a matter of substance) with comparative law (as a matter of process). However, this comparative process is seriously complicated by the ambiguous role that national court decisions play in the international law doctrine of sources, under which they provide evidence of the practice of the forum State as well as being a subsidiary means for determining international law. This article analyses these dual, and sometimes conflicting, roles of national courts and the impact of this duality on the comparative international law process.

Ius Humanitatis and the Right to Reparation for International Crimes in Foreign Domestic Courts

2014 ◽  
Vol 14 (2) ◽  
pp. 358-376
Author(s):  
Marcel Brus
Keyword(s):  
Human Rights ◽  
International Law ◽  
Domestic Court ◽  
Core Element ◽  
International Crimes ◽  
State Immunity ◽  
Domestic Courts ◽  
Humanitarian Ethics ◽  
The Right

This article focuses on the possibilities for victims of international crimes to obtain reparation in a foreign domestic court. The chances of success for such claims are small under traditional international law. The article questions whether the development of human rights and humanitarian ethics as a core element of international law (referred to as ius humanitatis) is having an impact on traditional obstacles to making such claims. Two elements are considered: the relevance of changing societal attitudes to the ‘rights’ of victims of such crimes and their possible effect on the interpretation and application of existing law, and whether in present-day international law humanitarian concerns have led to limiting obstacles that are still based on sovereignty, notably regarding the universality principle, prescription, and state immunity. The general conclusion is that on all these points much remains to be done.

scholarly journals The Role of Specialized Civil Society in Challenge Corruption with Glance to I.R.I

2017 ◽  
Vol 7 (3) ◽  
pp. 174
Author(s):  
AmirNezam Barati ◽  
Ali Babayee Mehr ◽  
Mohsen Sharifi
Keyword(s):  
Civil Society ◽  
Rule Of Law ◽  
Good Governance ◽  
Efficiency And Effectiveness ◽  
United Nations Convention ◽  
The Law ◽  
In Transit ◽  
And Control ◽  
Civil Societies

Combating against corruption is one of the most important factors for establishing Good Governance. Corruption is a social, political and economic phenomenon that defect the democratic institutions and stop establishing good governance. This study using analytical – descriptive, analyses the role of civil society in combat corruption with glance to I.R.IFindings of this study show that the role of special civil societies has remarkable efficiency and effectiveness in combat corruption. In challenging corruption different actor such as government, private sector and specialized civil society have function, but the role of civil societies is more effective than others.In relating to the I.R.I actions against corruption, the country enacted different laws such as the law of access to information, the Law of United Nations Convention against Corruption and this process will send a clear message that the country is determined to prevent and control corruption. In pathology of corruption in I.R of Iran the concentration on fighting against corruption, is concentrated on "The Staff of Combat against Economic Corruption" and civil society don’t have effective or remarkable role to fight against this abnormality and this Staff is most important centers to harmonize the actions against corruption. Finally, the most important causes of corruption in every developing Nations in Transit such as Iran are big government and interference of Government in economy, the weakly embedded rule of law, the ineffective and inefficient of government policy, lack of accountability and institutional transparency.

scholarly journals Toward a Rule of Law Society in Iraq: Introducing Clinical Legal Education into Iraqi Law Schools

2018 ◽  
Author(s):  
Haider Ala Hamoudi
Keyword(s):  
International Law ◽  
Rule Of Law ◽  
Legal Education ◽  
Law Schools ◽  
The Law

23 Berkeley Journal of International Law (BJIL) 112 (2005)This Article details my experience introducing clinical legal education into three Iraqi law schools. I highlight some of the cultural, legal and logistical obstacles that existed, and the means my colleagues and I used to circumvent them. By and large we considered our project at least modestly successful and certainly garnered the interest of many faculty and nearly all students who participated. Nevertheless, the extent of our success depended largely on the cooperation of the faculty and administration at the law schools with which we worked, and we were able to achieve the most at those institutions where cooperation was highest. Unfortunately, however, our project was limited necessarily in both scope and duration, and further efforts must be undertaken in order for experiential legal education to gain a firmer foothold in Iraq.

scholarly journals The Responsibility of Courts in Maintaining the Rule of Law: Two Tales of Consequential Judicial Self-Restraint

2021 ◽  
pp. 155-181
Author(s):  
Pál Sonnevend
Keyword(s):  
European Union ◽  
Rule Of Law ◽  
Constitutional Court ◽  
Court Decisions ◽  
The European Union ◽  
Constitutional Courts ◽  
The Rule Of Law ◽  
Legislative Power ◽  
The Face ◽  
The Law

AbstractModern constitutionalism is based on the paradigm that courts are inherently entitled and obliged to enforce the constitution of the respective polity. This responsibility of courts also applies in the context of the European Union to both the CJEU and national constitutional courts. The present chapter argues that in the face of constitutional crises the CJEU and the Hungarian Constitutional Court shy away from applying the law as it is to the full. The reasons behind this unwarranted judicial self-restraint are most different: the CJEU aims to avoid conflicts with national constitutional courts whereas the Hungarian Constitutional Court has been facing a legislative power also acting as constitution making power willing to amend the constitution to achieve specific legislative purposes or to undo previous constitutional court decisions. Yet both courts respond to expediencies that do not follow from the law they are called upon to apply. It is argued that rule of law backsliding requires these courts to abandon the unnecessary self-restraint and exploit the means already available.

Part 2 National and Regional Reports, Part 2.1 Africa: Coordinated by Jan L Neels and Eesa A Fredericks, 16 Morocco: Moroccan Perspectives on the Hague Principles

2021 ◽  
Author(s):  
Zaher Khalid
Keyword(s):  
Public Policy ◽  
International Law ◽  
Case Law ◽  
Vital Role ◽  
Private International Law ◽  
Statutory Law ◽  
The Hague ◽  
The Law

This chapter examines Moroccan perspectives on the Hague Principles. In Morocco, the sources of private international law applicable to international commercial contracts are both of a national and an international nature. International sources include mainly treaties and, to a lesser extent, international customs to which the Moroccan courts may refer in particular cases. National sources are statutory law, case law, and scholarly writings. Case law has always played a vital role in the development and the interpretation of the rules applicable to international commercial contracts. It is indeed the role of the courts to determine the scope of law chosen by the parties and to delimit the boundaries of international public policy as a limit to the application of the law chosen by the parties. Moroccan courts consider international customs as important sources in respect of international contracts and arbitration. Having frequently used the universally accepted principles of private international law, Moroccan courts could easily draw on the Hague Principles to find solutions to certain questions that have not been addressed by the legislature.

The Lex Fori

2019 ◽  
pp. 172-194
Author(s):  
Adrian Briggs
Keyword(s):  
Public Policy ◽  
United Kingdom ◽  
International Law ◽  
Private International Law ◽  
English Court ◽  
Conflict Of Laws ◽  
The United Kingdom ◽  
Foreign Law ◽  
The Law

This chapter examines of the role of the lex fori in English private international law before proceeding to examine the rules of the conflict of laws applicable in an English court. Issues for which the rules of the conflict of laws select the lex fori as the law to be applied include grounds for the dissolution (as distinct from nullity) of marriage, even if the marriage has little or nothing to do with the United Kingdom; or settlement of the distribution of assets in an insolvency even though there may be significant overseas elements. Where the rules of the conflict of laws select a foreign law, its application, even though it is proved to the satisfaction of the court, may be disrupted or derailed by a provision of the lex fori instead. The remainder of the chapter covers procedural issues; penal, revenue, and public laws; and public policy.

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