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Customary international law is one of the formal sources of international law and plays a pivotal role in the existence and functioning of the international legal system. Although for a rule of CIL to emerge a widespread, representative, constant and virtually uniform state practice is required, accompanied by the requisite opinio juris, that does not necessarily mean that CIL is a slow and archaic process, which has been overcome by extensive treaty-making. On the contrary, CIL remains a vital element in the corpus of international law that is open to refinement, clarification, development and evolution. This process does not happen only through the classical emergence and/or subsequent modification of the rule, but also and perhaps most importantly through the process of interpretation. This chapter demonstrates this by showing that CIL interpretation is neither problematic from a theoretical perspective, nor is it the only example of interpretation of unwritten rules. This is further reinforced by jurisprudence taken from both the domestic and the international legal system, although such interpretative exercises are not without their limits. What emerges from this analysis is that CIL interpretation, as Sur has beautifully noted, is of a negentropic nature that constantly nourishes and updates CIL.
The chapter argues that fieldwork – specifically multi-sited, semi-structured interviews and participant observation – is uniquely suited for unpacking how the constraints of daily practice within national courts frustrate the subnational reach of the European Union's (EU) legal authority. Deriving methodological insights and practical lessons from fifteen months of fieldwork in Italian, French, and German courts, the author shows how fieldwork reveals judges to be neither solely driven by individual attitudes nor by strategic quests for power: they are also employees within a bureaucracy. Anchored by the demands of established practice, knowledge, and everyday work, judges can develop an institutionally rooted consciousness resisting disruptive confrontations with new and unfamiliar rules like EU law. Through on-site iteration and triangulation, field researchers can trace, unpack, and corroborate this consciousness in real time, with an eye to also hypothesizing the conditions under which resistances to Europeanizing change can be overcome. In so doing, the researcher can intercept what one judge referred to as a ‘bureaucratic silence’ within which EU law ‘dies’: A web of habitual institutional practices scarcely detectable via other modes of social inquiry.
The recent emergence of international commercial courts as a distinct species of court raises numerous legal issues as to the relationship and interaction between those courts and pre-existing national courts. In some jurisdictions, such as Singapore, the relationship between the courts has been harmonious. Yet in others the creation of new, international commercial courts has fomented conflicts or 'turf wars' between the courts. This potential behavioural aspect of courts is not new, and one may find examples from English legal history of rivalries between courts. On occasion those rivalries are evident in the modern world, including in relation to the international commercial courts of Dubai. This chapter considers historical examples of conflicts within the English court system and the nature of international commercial courts, and discusses instances from Dubai of where the DIFC and Dubai courts have clashed.
This chapter focuses on how the application of an IO’s jurisdictional immunities prevent victims from accessing justice at the national level. The discussion first focuses on the basis of an IO’s domestic legal personality which allows suits to be brought against them at all. The chapter then identifies how IO immunities are applied today. Whereas IO immunities were intended to be functional, they have become by and large de facto absolute. This means that a claimant’s case is procedurally defeated and the merits do not get a chance to be ventilated. There are some indications that the tide might be shifting in favour of the claimant. Still, the way in which claims against IOs are addressed at the national level is unsustainable and requires a fundamental reframing.
The interaction between immunities and jurisdiction is complex. One lacuna is whether the international legal principle of state immunity is a rule or principle in its own right or an exception to a pre-existing jurisdiction. In the context of international arbitration disputes, this distinction is significant. States have been relying on immunity to exclude the jurisdiction of national courts to support the international arbitral process. This Article argues there is now a growing set of common and consistent practice according to which state immunity operates as a rule or principle lex specialis to a more general set of rules or principles governing the enforcement jurisdiction of national courts.
Since the adoption of the first United Nations Security Council (UNSC) counterterrorism resolution after the 9/11 attacks, the UNSC has increasingly required the domestic criminalization of “terrorism” acts and ancillary activities. Without the inclusion of an explicit international humanitarian law (IHL) or humanitarian exception, the UNSC has – so far – failed to harmonize the counterterrorism legal framework with IHL, leaving it up to States to define the interaction between the two. In their national legislation and courts, States’ interpretations have varied but counterterrorism legislations have been used to adjudicate conducts in armed conflicts, regardless of their legality under IHL. As the domestication of UNSC offences is ongoing, good practices are highlighted in this paper and recommendations are offered to ensure the development of international customary law in accordance with IHL.
This Article aims to examine the social media jurisprudence of national courts in a selected set of EU Member States by focusing on judicial dialogue specifically via references to the case law of other courts. Do judges in social media cases engage with the case law of peers, and if so how and to what extent? The analysis investigates whether national judges draw on the jurisprudence of higher domestic courts, foreign courts and/or European supranational courts—the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR)—and explores the use of such jurisprudence. It is based on 147 cases from the constitutional and/or supreme courts of Bulgaria, Croatia, Greece, Italy, Latvia, Slovakia, and Slovenia. Although judicial dialogue is generally limited in the cases under study, the analysis illustrates the different ways in which courts interact with the rulings of peers and informs on the latter’s contribution to judicial assessment.
Chapter 8 explores the essential institutional characteristics for maintaining homogeneity in the expanded internal market in the stages of application and implementation of the acquis. The analysis focusses on the institutional and procedural frameworks in the EU and the multilateral agreements, respectively, that are vested with the task of the uniform enforcement and application of the acquis in and outside the Union. The analysis is divided into two parts dealing with the centralising and decentralising dynamics, respectively. The former pertains to the centralised institutions and procedures for surveillance, enforcement and judicial protection in the EU and the multilateral agreements; and the latter to the procedural links between the international or supranational institutions, on the one hand, and national authorities and individuals, on the other.
Chapter 5 addresses the potential role of domestic courts and mechanisms in the adjudication and award of reparations for international crimes. It draws from existing studies in the field and examines the role that domestic courts may have in adjudicating claims of reparations for international crimes. It analyzes these questions through case studies of domestic reparations for international crimes in Bosnia and Herzegovina where the international criminal tribunal did not have a reparative dimension. It also provides a unique contribution through a timely discussion of the development of universal civil jurisdiction, including the challenges, recent case law from different countries and the United States through the Alien Tort Claims Act (ATCA), as well as recent decisions by US courts limiting its jurisdictions on the ATCA. With this chapter, the book provides a careful survey and analysis of the intricacies of international, national, and administrative mechanisms that are being developed to address reparative justice for international crimes, their unique challenges and some suggestions on how reparative justice for international crimes should develop.
An enduring contribution of Jessup’s Transnational Law is his critique of “international law” and his case for a functionalist concept of “transnational law” defined as rules—international, national or private—that offer solutions to transnational problems. Extending Jessup’s argument, this chapter critiques the concept of the “international legal system,” proposes an alternative concept of the “global legal system” and offers an analytical framework for understanding that system. The global legal system consists of not only rules, but also courts and other institutions, that provide legal solutions to transnational problems. These institutions are national, international, private and sometimes hybrid. Among the solutions provided are three generic governance functions: prescription, adjudication and enforcement. More than one institution may provide solutions to a given transnational problem, creating a need for choice across three dimensions: national-national, national-international and public-private. The global legal system uses three types of principles to guide these choices: principles of authority, allocation and party autonomy. This chapter’s concept of a global legal system aims to provide a coherent way of thinking about the multiple transnational problem-solving functions of legal systems and the multiple levels at which those functions are performed.
This chapter uses transnational law in the Jessup tradition as a lens for examining contemporary debates about the legitimacy and methodology of national courts engaging with foreign and international law. Covering academic and judicial views from a number of countries in the common law world, particularly the USA, UK, and Australia, it offers an Australian perspective on judicial transnationalisation of law, including analysis of decisions of the High Court of Australia over a 25-year period. In outlining features of the landscape of judicial transnationalisation of law in the common law world, it canvasses various jurisprudential, jurisdictional, methodological, and topical challenges for conventional frames of reference about national courts engaging with international and foreign law. Finally, it explores the implications of positioning national courts within a 21st century inter-systemic view of governance, regulation, and democracy.
Domestic climate change litigation is prospering across the globe to the extent of becoming a transnational phenomenon of growing importance. At the international level the Paris Agreement, although still in its infancy, has been established as the core element of the climate change governance framework. This article explores the still opaque relationship between domestic climate change litigation and the Paris Agreement. It is argued that dynamic interaction between domestic litigation and the Paris Agreement may improve the overall efficacy of both regimes. On the one hand, an examination of the Paris Agreement's architecture and provisions reveals pathways that are already being used or can be explored further in litigation. On the other hand, litigation can assist and complement the Paris Agreement with regard to its implementation and progress towards its overall goals. The result may deliver more than a multi-level perspective on climate change law. As it captures the law in action on different levels, the proposed ‘cross-level’ approach has due regard to the implications of the mutual supportiveness or complementarity of legal tools. It also thereby responds to the concern of whether the law can be of significant benefit in addressing complex global issues like climate change.
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.
This article examines the extent to which state officials are shielded from foreign jurisdiction by functional immunity when they stand accused of committing international crimes. It argues that the development of the principle of individual responsibility for international crimes should be understood as posing a limit to the operation of the rule of functional immunity. States have agreed that international crimes, even when committed within the context of the ostensible exercise of state authority under international law, do not qualify as official acts for functional immunity purposes since they can no longer be solely attributed to the state and not to the official personally. The article thereby takes issue with the increasingly popular conceptualization of functional immunity in terms of an act of state immunity, in which attribution, rather than exclusive attribution, is the controlling notion. It does acknowledge that international law may pose limits on the competence of national courts to establish jurisdiction in certain circumstances, but proposes to undo the discussion of the shackles of immunity law and to recognize the operation of an alternative, less far-reaching legal principle.
On 26 November 2008 the Czech Constitutional Court (hereinafter Court) handed down a long-awaited opinion in which it unanimously found the Lisbon Treaty (hereinafter Treaty) to be compatible with the Czech constitutional order. The decision has drawn broad attention at all levels, be it political circles, academia or even general public. It is certainly one of the most significant decisions in the Court's history and it has EU-wide implications.
Third pillar – European Arrest Warrant – Nature of third
pillar – Litigation before national constitutional courts –
Primacy of EU law over national law – Differing national attitudes
with regard to the status of third pillar law – Process of
approximation: first pillar and third pillar – Achieving consistency
through primacy of third pillar – Judicial protection of position of
individual – Lisbon Treaty and the unification of EU law
To this day the founding treaties of the European Union contain no legally binding bill of rights in the traditional sense protecting religion, privacy, family life, the freedom of expression, and so forth. As we all know, while the European Court of Justice initially rejected appeals relying on fundamental rights as found in national constitutions, the Court changed its position under pressure of German courts.
This article provides a survey of German and English case law which illustrates some of the problems that State court judges, parties and arbitrators may encounter when national courts are asked to assist in arbitral proceedings that take place in another country. Although German and English arbitration laws define in which cases their State courts may support foreign arbitrations, the application of these laws may nevertheless prove difficult. The supportive measures requested from the German and English courts concerned the appointment of an arbitrator, the granting of interim relief and assistance in the taking of evidence. While the English courts rendered well-reasoned decisions, the two German courts handed down more controversial judgments.
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