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Introduction: Domestic Courts as Agents of Development of International Law*

  • ANTONIOS TZANAKOPOULOS and CHRISTIAN J. TAMS

Abstract

This 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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Many thanks are due to Professors Erika de Wet and André Nollkaemper, the editors-in-chief of ILDC who co-organized the Third ILDC Colloquium, for their help in reviewing and editing the contributions to the symposium; as well as to the editors-in-chief and the editorial board of the Leiden Journal of International Law for their hard work, help, and patience in the preparation and publication of the symposium.

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1 See Roberts, A., ‘Comparative International Law? The Role of National Courts in Creating and Enforcing International Law’, (2011) 60 ICLQ 57, 58.

2 Y. Shany, ‘National Courts as International Actors: Jurisdictional Implications’ (2009) Federalismi.it no 15/2009, 2, available at http://www.effective-intl-adjudication.org/admin/Reports/2af9ed4d4a026e581437876dd1b73b87Yuval.pdf.

3 Roberts, supra note 1, 60.

4 See, e.g., Nollkaemper, A., Domestic Courts and the International Rule of Law (2011); d'Aspremont, J., ‘The Systemic Integration of International Law by Domestic Courts: Domestic Judges as Architects of the Consistency of the International Legal Order’, in Fauchald, O. K. and Nollkaemper, A. (eds.), The Practice of International and National Courts and the (De-)Fragmentation of International Law (2012), 141.

5 The present symposium complements ongoing research on the development of international law by another potential ‘agent of legal development’, namely the International Court of Justice. See Tams, C. J. and Sloan, J. (eds.), The Development of International Law by the International Court of Justice (2013).

6 Brierly, J. L., ‘International Law in England’, (1935) 51 LQR 24, 25.

7 T. Bingham, ‘Preface’, in Shaheed Fatima, Using International Law in Domestic Courts (2005), xi.

8 Cf. Lauterpacht, H., ‘Municipal Decisions as a Source of International Law’, (1929) 10 British Yearbook of International Law 65, 71.

9 Walker, T. A., The Science of International Law (1893), 49.

10 See further Tzanakopoulos, A., ‘Domestic Courts in International Law: The International Judicial Function of National Courts’, (2011) 34 Loyola of LA Int'l & Comp L Rev 133, 138–40, with further references; and cf. A. Tzanakopoulos, ‘Preliminary Report of the ILA Study Group on Principles on the Engagement of Domestic Courts with International Law’, in International Law Association, Report of the Seventy-Fifth Conference Held in Sofia 26–30 August 2012 (forthcoming), para. 12.

11 See generally Slaughter, A.-M. and Burke-White, W., ‘The Future of International Law Is Domestic (or, The European Way of Law)’, (2006) 47 Harvard Int'l LJ 327.

12 As, for example, is roughly the case in the United Kingdom.

13 See generally Benvenisti, E., ‘Judicial Misgivings Regarding the Application of International Law: An Analysis of the Attitudes of National Courts’, (1993) 4 EJIL 159.

14 See Tzanakopoulos, ‘Domestic Courts in International Law’, supra note 10, 155–8, and ‘Preliminary Report of the ILA Study Group’, supra note 10, paras. 21–23.

15 See Nollkaemper, A., ‘Internationally Wrongful Acts in Domestic Courts’, (2007) 101 AJIL 760, 761–2.

16 On consubstantial rules see further Tzanakopoulos, ‘Domestic Courts in International Law’, supra note 10, 143–4 and 158, and ‘Preliminary Report of the ILA Study Group’, supra note 10, para. 29.

17 Roberts, supra note 1, 74–6; cf. Knop, K., ‘Here and There: International Law in Domestic Courts’, (2000) 32 NYU JILP 501, 505–6; R. van Alebeek in this symposium.

18 See notably arguments made in the contributions by R. O'Keefe and S. Olleson in this symposium.

19 See, e.g., the contribution by R. van Alebeek in this symposium; and see Lauterpacht, supra note 8, 75.

20 H. Lauterpacht, ‘The International Court as an Agency for Developing International Law’, in The Development of International Law by the International Court (1958); and already H. Lauterpacht , The Development of International Law by the Permanent Court of International Justice (1934), 2.

21 F. Berman, ‘The International Court of Justice as an “Agent” of Legal Development?’, in Tams and Sloan, supra note 5.

22 Montesquieu, De l'esprit des lois (1748), Book XI, Chapter 6.

23 On the law-making power of the ICJ see, e.g., Tams, C. J. and Tzanakopoulos, A., ‘Barcelona Traction at 40: The ICJ as an Agent of Legal Development’, (2010) 23 LJIL 781, 782–6; and Pellet, A., ‘Article 38’, in Zimmermann, A.et al. (eds.), The Statute of the International Court of Justice: A Commentary (2012), mn 322–34, both with further references.

24 See Walker, supra note 9.

25 Certain German Interests in Polish Upper Silesia, [1926] PCIJ Series A No, 7, at 19 (emphasis added).

26 See Art. 4 of the Articles on the Responsibility of States for Internationally Wrongful Acts and related Commentary, reproduced in (2001) II(1) ILC Ybk 31, 40–1, para. 6; for an early treatment see C. Eustathiadès, La responsabilité internationale de l'état pour les actes des organes judiciaires et le problème du déni de justice en droit international (1936); in this symposium see further the contribution by Olleson.

27 On the face of it, Art. 38(1)(d) of the ICJ Statute – mentioning ‘judicial decisions’ as ‘as subsidiary means for the determination of rules of law’ – might be added. However, this assumes that ‘judicial decisions’ encompass domestic decisions (which is at best controversial); and it ignores the fact that in describing judicial decisions as a ‘means for the determination of rules of law’, Art. 38(1)(d) deals with a material, not a formal, source of law. See Pellet, supra note 23, mn 307 et seq., esp. 321 with further references.

28 The point is made clearly in the contribution by O'Keefe.

29 See, e.g., North Sea Continental Shelf, [1969] ICJ Rep. 3, 41–2, paras. 71–73.

30 Cf. Lord Phillimore's explanation of ‘general principles’: Procès-Verbaux of the Proceedings of the Advisory Committee of Jurists (1920), 335.

31 As Lord Hoffmann stated in Jones v. Saudi Arabia, [2006] UKHL 26, para. 63, ‘[i]t is not for a national court to “develop” international law by unilaterally adopting a version of that law which, however desirable, forward-looking and reflective of values it may be, is simply not accepted by other states’ (emphasis added). This concedes that it is for a national court to ‘develop’ international law through a unilateral adoption of a version of that law, should it be successful in soliciting the agreement, or at least acquiescence, of other states.

32 See e.g. the contribution by O'Keefe in this symposium.

33 Cf. the contribution by Olleson in this symposium.

34 There have been instances where the state has appealed a decision of a domestic court in which it was not originally a party in order to avoid the breach of an international obligation: e.g., in Tachiona v. United States, 386 F.3d 205, 213 (2d Cir. 2004) the US Court of Appeals for the Second Circuit acknowledged the legal interest of the state to intervene in judicial proceedings between private parties, and even appeal the decision of a lower court, where that decision would result in a breach of US international obligations. The release of the ARA Libertad by Ghana against the decision of its own domestic court yields another example, although there an international court had definitively (if controversially) pronounced on the issue: see ‘ARA Libertad’ Case (Argentina v. Ghana), Provisional Measures Order of 15 December 2012, available at http://www.itlos.org/fileadmin/itlos/documents/cases/case_no.20/C20_Order_15.12.2012.corr.pdf. See also the example of the Chilean MFA intervening to overrule the Supreme Court of Chile relayed by Orrego-Vicuña, F., ‘Diplomatic and Consular Immunities and Human Rights’, (1991) 40 ICLQ 34, 41–2.

35 See, e.g., the contribution by Van Alebeek in this symposium, especially her discussion of ‘ripple effects’.

36 See the contribution by Van Alebeek in this symposium.

37 See the contributions by Olleson and Wittich in this symposium.

38 See the contribution by Hovell in this symposium.

39 See the keynote of the Third ILDC Colloquium, published independently in this journal: Keith, K., ‘“International Law Is Part of the Law of the Land”: True or False?’, (2013) 26 LJIL 351.

* Many thanks are due to Professors Erika de Wet and André Nollkaemper, the editors-in-chief of ILDC who co-organized the Third ILDC Colloquium, for their help in reviewing and editing the contributions to the symposium; as well as to the editors-in-chief and the editorial board of the Leiden Journal of International Law for their hard work, help, and patience in the preparation and publication of the symposium.

** University Lecturer in Public International Law, University of Oxford, and Fellow in Law, St Anne's College, Oxford [].

*** Professor of International Law, University of Glasgow [].

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