National Courts and the International Rule of Law

Introduction 1: Conditions Jurisdiction Validity of International Law Standing Independence 2: Techniques Direct Application Interpretation Review of Administrative Discretion Procedural Law 3: Remedies Prevention or Determination of ...

Author: Andre Nollkaemper

Publisher: Oxford University Press, USA

ISBN: 0199236674

Category: Law

Page: 337

View: 836

This book explores how domestic courts contribute to the maintenance of the rule of international law by providing judicial control over the exercises of public powers that may conflict with international law. The main focus of the book will be on judicial control of exercise of public powers by states. Key cases that will be reviewed in this book, and that will provide empirical material for the main propositions, include Hamdan, in which the US Supreme Court reviewed detention by the United States of suspected terrorists against the 1949 Geneva Conventions; Adalah, in which the Supreme Court of Israel held that the use of local residents by Israeli soldiers in arresting a wanted terrorist is unlawful under international law, and the Narmada case, in which the Indian Supreme Court reviewed the legality of displacement of people in connection with the building of a dam in the river Narmada under the ILO Indigenous and Tribal Populations Convention 1957 (nr 107). This book primarily explores what it is that international law requires, expects, or aspires that domestic courts do, and against this backdrop of what international law requires it seeks to map patterns of domestic practice in the actual or possible application of international law, and to determine what such patterns mean for the protection of the rule of international law.

National Courts and the International Rule of Law

This book comprehensively explores this issue and focuses mainly on judicial control of exercise of public powers by states.

Author: André Nollkaemper

Publisher: Oxford University Press

ISBN: 0199668159

Category: Law

Page: 384

View: 814

Domestic courts contribute to the maintenance of the rule of international law by providing judicial control over the exercises of public powers that may conflict with international law. This book comprehensively explores this issue and focuses mainly on judicial control of exercise of public powers by states.

Rule of Law Dynamics

This volume explores the various strategies, mechanisms, and processes that influence rule of law dynamics across borders and the national/international divide, illuminating the diverse paths of influence.

Author: Michael Zurn

Publisher: Cambridge University Press

ISBN: 1107024714

Category: Law

Page: 380

View: 721

This volume explores the various strategies, mechanisms, and processes that influence rule of law dynamics across borders and the national/international divide, illuminating the diverse paths of influence. It shows to what extent, and how, rule of law dynamics have changed in recent years, especially at the transnational and international levels of government. To explore these interactive dynamics, the volume adopts an interdisciplinary approach, bringing together the normative perspective of law with the analytical perspective of social sciences. The volume contributes to several fields, including studies of rule of law, law and development, and good governance; democratization; globalization studies; neo-institutionalism and judicial studies; international law, transnational governance, and the emerging literature on judicial reforms in authoritarian regimes; and comparative law (Islamic, African, Asian, Latin American legal systems).


The Interpretation of International Law by Domestic Courts

The contributions to this book analyse three key questions: first, whether international law requires a coherent interpretive approach by domestic courts.

Author: Helmut Philipp Aust

Publisher: Oxford University Press

ISBN: 0191059412

Category: Law

Page: 384

View: 728

The Interpretation of International Law by Domestic Courts assesses the growing role of domestic courts in the interpretation of international law. It asks whether and if so to what extent domestic courts make use of the international rules of interpretation set forth in the Vienna Convention on the Law of Treaties. Given the expectation that rules of international law are to have a uniform interpretation and application throughout the world, the practice of domestic courts is considerably more diverse. The contributions to this book analyse three key questions: first, whether international law requires a coherent interpretive approach by domestic courts. Second, whether a common or convergent methodological outlook can be found in domestic court practice. Third, whether a common interpretive approach is desirable from a normative perspective. The book identfies a considerable tension between international law's ambition for universal and uniform application and a plurality of different approaches. This tension between unity and diversity is analysed by a group of leading international lawyers from a wide range of geographical, disciplinary and methodological approaches. Drawing on domestic practice of number of jurisdictions including, among others, Colombia, France, Japan, India, Israel, Mexico, South Africa, the United Kingdom and the United States, the book puts the interpretative practice of domestic courts in a wider context. Its chapters offer doctrinal, practical as well as theoretical perspectives on a central question for international law.

National Courts and the International Rule of Law

This book explores how domestic courts contribute to the maintenance of the rule of international law by providing judicial control over the exercises of public powers that may conflict with international law.

Author:

Publisher:

ISBN:

Category:

Page: 384

View: 566

This book explores how domestic courts contribute to the maintenance of the rule of international law by providing judicial control over the exercises of public powers that may conflict with international law. The main focus of the book will be on judicial control of exercise of public powers by states. Key cases that will be reviewed in this book, and that will provide empirical material for the main propositions, include Hamdan, in which the US Supreme Court reviewed detention by the United States of suspected terrorists against the 1949 Geneva Conventions; Adalah, in which the Supreme Court of Israel held that the use of local residents by Israeli soldiers in arresting a wanted terrorist is unlawful under international law, and the Narmada case, in which the Indian Supreme Court reviewed the legality of displacement of people in connection with the building of a dam in the river Narmada under the ILO Indigenous and Tribal Populations Convention 1957 (nr 107). This book primarily explores what it is that international law requires, expects, or aspires that domestic courts do, and against this backdrop of what international law requires it seeks to map patterns of domestic practice in the actual or possible application of international law, and to determine what such patterns mean for the protection of the rule of international law.

The Rule of Law at the National and International Levels

This book aims to enhance understanding of the interactions between the international and national rule of law. It demonstrates that the international rule of law is not merely about ensuring national compliance with international law.

Author: Machiko Kanetake

Publisher: Bloomsbury Publishing

ISBN: 1782256156

Category: Law

Page: 416

View: 617

This book aims to enhance understanding of the interactions between the international and national rule of law. It demonstrates that the international rule of law is not merely about ensuring national compliance with international law. International law and institutions (eg, international human rights treaty-monitoring bodies and human rights courts) respond to national contestations and show deference to the national rule of law. While this might come at the expense of the certainty of international law, it suggests that the international rule of law can allow for flexibility, national diversity and pluralism. The essays in this volume are set against the background of increasing conflict between international and national legal norms. Moreover the book shows that international law and institutions do not always command blind national obedience to international law, but incorporate a process of adjustment and deference to national law and policies that are protected by the rule of law at the national level.

National Courts and the International Rule of Law

the international level and a rule of law at the national level may be firmly rooted
in principles of sovereignty.7 However, the distinction is misleading, at least to
the extent that international law impinges on national law.8 Though the practical
 ...

Author: André Nollkaemper

Publisher: Oxford University Press

ISBN: 0191652822

Category: Courts

Page: 384

View: 157

This book explores the way domestic courts contribute to the maintenance of theinternational of law by providing judicial control over the exercises of public powers that may conflict with international law. The main focus of the book will be on judicial control of exercise of public powers by states. Key cases that will be reviewed in this book, and that will provide empirical material for the main propositions, include Hamdan, in which the US Supreme Court revieweddetention by the United States of suspected terrorists against the 1949 Geneva Conventions; Adalah, in which the Supreme Court of Israel held that the use of local residents by Israeli soldiers in arresting a wanted terrorist is unlawful under international law, and the Narmada case, in which the Indian SupremeCourt reviewed the legality of displacement of people in connection with the building of a dam in the river Narmada under the ILO Indigenous and Tribal Populations Convention 1957 (nr 107).This book explores what it is that international law requires, expects, or aspires that domestic courts do. Against this backdrop it maps patterns of domestic practice in the actual or possible application of international law and determines what such patterns mean for the protection of the international rule of law.

Separating Powers International Law before National Courts

This raises a separation of powers question regarding law–making powers. This book considers that specific issue.

Author: David Haljan

Publisher: Springer Science & Business Media

ISBN: 9067048585

Category: Law

Page: 326

View: 115

The more international law, taken as a global answer to global problems, intrudes into domestic legal systems, the more it takes on the role and function of domestic law. This raises a separation of powers question regarding law–making powers. This book considers that specific issue. In contrast to other studies on domestic courts applying international law, its constitutional orientation focuses on the presumptions concerning the distribution of state power. It collects and examines relevant decisions regarding treaties and customary international law from four leading legal systems, the US, the UK, France, and the Netherlands. Those decisions reveal that institutional and conceptual allegiances to constitutional structures render it difficult for courts to see their mandates and powers in terms other than exclusively national. Constitutionalism generates an inevitable dualism between international law and national law, one which cannot necessarily be overcome by express constitutional provisions accommodating international law. Valuable for academics and practitioners in the fields of international and constitutional law.

The Contribution of International and Supranational Courts to the Rule of Law

Addressing this gap, this innovative book examines the manner in which and the extent to which international courts and tribunals contribute to the rule of law at the national, regional, and international levels.

Author: Geert De Baere

Publisher: Edward Elgar Publishing

ISBN: 1783476621

Category: Law

Page: 416

View: 915

International and supranational courts are increasingly central to the development of a transnational rule of law. Except for insiders, the functioning and impact of these courts remain largely unknown. Addressing this gap, this innovative book examines the manner in which and the extent to which international courts and tribunals contribute to the rule of law at the national, regional, and international levels. With unique insights from members of the international judiciary, this authoritative book deals with the fundamental procedural and substantive legal principles, sources, tools of interpretation, and enforcement used by the respective judicial bodies. The rule of law-focused approach offers a unique opportunity for a thorough cross-case analysis of the differences and commonalities in the essential contributions of the respective courts and tribunals to international justice. The book also includes an in-depth theoretical framework and allows for the identification of fundamental principles and commonalities, as well as differences and contrasts between the different judicial bodies. In addition to students, researchers and scholars in international law, this timely and comprehensive study of international courts and their contributions will be an enlightening resource for legal practitioners and those involved with international justice.

Direct Application of International Criminal Law in National Courts

He provides a rich description of the relevant practice in many different States ranging from Argentina to Senegal. Easily accessible, this book is a valuable tool for academics and practitioners alike.

Author: W. N. Ferdinandusse

Publisher: T.M.C. Asser Press

ISBN: 9789067042079

Category: Law

Page: 338

View: 758

When national courts judge international crimes like genocide, crimes against humanity and war crimes, they can draw on both national and international criminal law. The relationship between these two bodies of law is not always clear. Can national courts base prosecutions of international crimes directly on international criminal law? In a world where national laws often proscribe international crimes in an incomplete or deficient manner, this question has considerable practical relevance for the enforcement of international criminal law. Yet, it has received little attention in doctrine while practice shows widely divergent approaches of national courts to the feasibility of direct application. The author examines the concept of the direct application of international criminal law in national courts. He provides a rich description of the relevant practice in many different States ranging from Argentina to Senegal. Easily accessible, this book is a valuable tool for academics and practitioners alike.

The Role of National Courts in Applying International Humanitarian Law

The book shows that the functional role of the national courts is a combination of contradictions and mixed attitudes, and that national courts are in the process of defining their own role as enforcing organs of international humanitarian ...

Author: Sharon Weill

Publisher: OUP Oxford

ISBN: 0191508616

Category: Law

Page: 360

View: 464

International law is increasingly applied in domestic courts. This can result in situations where the courts are being asked to rule on politically sensitive issues, especially issues which involve actions during armed conflicts. Domestic courts do not show a uniformity of approach in addressing cases concerning international humanitarian law, and can often be seen to differ markedly in their response. The book argues that different national courts demonstrate different functional roles in different countries. These can be situated on a scale from apology to utopia, which can be set out as follows: (1) the apologist role of courts, in which they serve as a legitimating agency of the state's actions; (2) the avoiding role of courts, in which they, for policy considerations, avoid exercising jurisdiction over a case; (3) The deferral role of courts, in which courts defer back to the other branches of the government the responsibility of finding an appropriate remedy (4) the normative application role of courts, in which they apply international humanitarian law as required by the rule of law; and (5) the utopian role of courts, in which they introduce moral judgments in favour of the protection of the individual, beyond the requirements of the law. The book investigates the rulings of five key domestic courts, those of the UK, the USA, Canada, Italy, and Israel, to understand how their approaches differ, and where their practice can be placed on the methological scale. This analysis has been assisted by the author's extensive field work, notably in Israel and in the Occupied Palestinian Territories. Providing a detailed understanding each court's function, the book offers a critical analysis of the courts' rulings, in which both the legal arguments and the political context of cases they have ruled on are examined. The book shows that the functional role of the national courts is a combination of contradictions and mixed attitudes, and that national courts are in the process of defining their own role as enforcing organs of international humanitarian law.

The Practice of International and National Courts and the De Fragmentation of International Law

This book explores how international and national courts can, and do, mitigate fragmentation of international law.

Author: Ole Kristian Fauchald

Publisher: Bloomsbury Publishing

ISBN: 1847319157

Category: Law

Page: 382

View: 139

In recent decades there has been a considerable growth in the activities of international tribunals and the establishment of new tribunals. Furthermore, supervisory bodies established to control compliance with treaty obligations have adopted decisions in an increasing number of cases. National courts further add to the practice of adjudication of claims based on international law. While this increasing practice of courts and supervisory bodies strengthens the adjudicatory process in international law, it also poses challenges to the unity of international law. Most of these courts operate within their own special regime (functional, regional, or national) and will primarily interpret and apply international law within the framework of that particular regime. The role of domestic courts poses special challenges, as the powers of such courts to give effect to international law, as well as their actual practice in applying such law, largely will be determined by national law. At the same time, both international and national courts have recognised that they do not operate in isolation from the larger international legal system, and have found various ways to counteract the process of fragmentation that may result from their jurisdictional limitations. This book explores how international and national courts can, and do, mitigate fragmentation of international law. It contains case studies from international regimes (including the WTO, the IMF, investment arbitration and the ECtHR) and from various national jurisdictions (including Japan, Norway, Switzerland and the UK), providing a basis for conclusions to be drawn in the final chapter.

The Rule of Law in the Arab World

Nathan Brown's comprehensive and penetrating account of the development and operation of the courts in the Arab world is based on extensive fieldwork in Egypt and the Gulf. The book addresses several important questions.

Author: Nathan J. Brown

Publisher: Cambridge University Press

ISBN: 9780521590266

Category: History

Page: 258

View: 140

Nathan Brown's comprehensive and penetrating account of the development and operation of the courts in the Arab world is based on extensive fieldwork in Egypt and the Gulf. The book addresses several important questions. Why, for example, did Egypt's political leaders construct an independent judicial system which so obviously limited their own authority? And why does such a seemingly autonomous and dilatory system recommend itself to Arab states outside Egypt as diverse as Libya, Kuwait, Iraq and the Gulf? From the theoretical perspective, the book makes a powerful and original contribution to the debates about liberal legality, external and internal sources of political change during and after imperialism, and the relationship between law and society in the developing world. It will be widely read by scholars of the Middle East, law students, and anyone with an interest in the history of law and its evolution.

Rule of Law Human Rights and Judicial Control of Power

This book addresses the scope and limits of judicial control at the national level, i.e. the control of public authorities, and at the supranational level, i.e. the control of States.

Author: Rainer Arnold

Publisher: Springer

ISBN: 3319551868

Category: Law

Page: 446

View: 900

Judicial control of public power ensures a guarantee of the rule of law. This book addresses the scope and limits of judicial control at the national level, i.e. the control of public authorities, and at the supranational level, i.e. the control of States. It explores the risk of judicial review leading to judicial activism that can threaten the principle of the separation of powers or the legitimate exercise of state powers. It analyzes how national and supranational legal systems have embodied certain mechanisms, such as the principles of reasonableness, proportionality, deference and margin of appreciation, as well as the horizontal effects of human rights that help to determine how far a judge can go. Taking a theoretical and comparative view, the book first examines the conceptual bases of the various control systems and then studies the models, structural elements, and functions of the control instruments in selected countries and regions. It uses country and regional reports as the basis for the comparison of the convergences and divergences of the implementation of control in certain countries of Europe, Latin America, and Africa. The book’s theoretical reflections and comparative investigations provide answers to important questions, such as whether or not there are nascent universal principles concerning the control of public power, how strong the impact of particular legal traditions is, and to what extent international law concepts have had harmonizing and strengthening effects on internal public-power control.

International Law

***** WAGmob: Over One million Paying Customers ***** WAGmob brings you, Simple 'n Easy, on-the-go learning ebook for "International Law".

Author: WAGmob

Publisher: WAGmob

ISBN:

Category:

Page: 53

View: 156

***** WAGmob: Over One million Paying Customers ***** WAGmob brings you, Simple 'n Easy, on-the-go learning ebook for "International Law". The ebook provides: Snack sized chapters for easy learning. Designed for both students and adults. This ebook provides a quick summary of essential concepts in International Law by following snack sized chapters: Introduction: • The Law • Definition of International Law • Three distinct legal disciplines of International Law • International Legal Personality • Scope and Nature of International Law • Issues Covered by International Law • International Norms History of International law: • History of International Law • What is International Law? • Hugo Grotius • International Relations - International Law approaches • Rational Choice and Game Theory • International Legal Process Treaties: • Treaty • Treaties as law • Basic Principles of Treaties • Bilateral and multilateral treaties • Adding and amending treaty obligations • Execution and Implementation • Ending treaty obligations • Invalid treaties • Role of the United Nations Public International Law: • Public International Law • Private International law • Domains of International Law • International Economic Law • International Security Law • International Criminal Law • International Environmental Law • Diplomatic Law • International Humanitarian Law or Law of War • International Human Rights Law Source of International Law: • Sources of International Law • Modern Views • Hierarchy • Treaties as law • Treaties as custom • International Custom • State Practice • Practice by International Organizations • Opinio Juris • Jus Cogens • General Principles of Law • Judicial Decisions and Juristic Writings Jurisdiction of States: • Jurisdiction of States • Principles of Jurisdiction • Immunities from Jurisdiction • Jurisdiction of State and Federal Courts Relationship of International Law and Municipal Law: • International Law and Municipal Law • Monism • Dualism • Impact of International laws on Municipal Laws • Difference between International Law and Municipal Law • How to Distinguish International Law from Municipal Law Law of Sea: • Introduction • LOS Functions • The Law of the Sea Treaty • UNCLOS I • UNCLOS II • UNCLOS III • United States Position • Status of the Seas, Outer Space and Antarctica Human Rights and the Rule of Law: • International Human Rights Law • The International Bill of Human Rights • International Human Rights Treaties • An International Rule of Law • Human Rights and Rule of Law • Rule of Law - Democracy and Human Rights About WAGmob ebooks: 1) A companion ebook for on-the-go, bite-sized learning. 2) Offers value for money (a lifetime of free updates). 3) Over One million paying customers from 175+ countries. WAGmob Vision : Simple 'n easy ebooks for a lifetime of on-the-go learning Visit us : www.wagmob.com Please write to us at [email protected] We would love to improve this ebook.

An Introduction to International Law

Hence they are the principal addressees of this book. This book touches upon the main subjects in public international law, with special emphasis on the application of international rules within the national legal orders.

Author: Benedetto Conforti

Publisher: Martinus Nijhoff Publishers

ISBN: 9004164162

Category: Law

Page: 143

View: 844

National judges are a sort of propelling force behind international law to the extent that they perceive the need to realize that international solidarity which is too often lacking at the level of governments. Hence they are the principal addressees of this book.

The Law and Politics of the Andean Tribunal of Justice

This book collects together previously published material by two leading interdisciplinary scholars of international law and politics, and is enhanced by three original chapters further reflecting on the Andean legal order.

Author: Karen J. Alter

Publisher: Oxford University Press

ISBN: 0199680787

Category: Law

Page: 380

View: 99

The Andean Pact was founded in 1969 to build a common market in South America. Andean leaders copied the institutional and treaty design of the European Community, and in the 1970s, member states decided to add a tribunal, again turning to the European Community as its model. Since its first ruling in 1987, the Andean Tribunal of Justice has exercised authority over the countries which are members of the Andean Community: Bolivia, Colombia, Ecuador, and Peru (formerly also Venezuela). It is now the third most active international court in the world, used by governments and private actors to protect their rights and interests in the region. This book investigates how a region with weak legal institutions developed an effective international rule of law, why the Tribunal was able to induce widespread respect for Andean intellectual property rules but not other areas governed by regional integration rules, and what the Tribunal's experience means for comparable international courts. It also assesses the Andean experience in order to reconsider the European Community system, exploring why the law and politics of integration in Europe and the Andes followed different trajectories. It finally provides a detailed analysis of the key factors associated with effective supranational adjudication. This book collects together previously published material by two leading interdisciplinary scholars of international law and politics, and is enhanced by three original chapters further reflecting on the Andean legal order.

Comparative International Law

"The chapters of this volume were presented at the twenty-seventh and twenty-eighth Sokol Colloquia on Private International Law, held at the University of Virginia School of Law in September 2014 and September 2015.

Author: Anthea Roberts

Publisher: Oxford University Press

ISBN: 0190697571

Category: Law

Page: 640

View: 946

By definition, international law, once agreed upon and consented to, applies to all parties equally. It is perhaps the one area of law where cross-country comparison seems inappropriate, because all parties are governed by the same rules. However, as this book explains, states sometimes adhere to similar, and at other times, adopt different interpretations of the same international norms and standards. International legal rules are not a monolithic whole, but are the basis for ongoing contestation in which states set forth competing interpretations. International norms are interpreted and redefined by national executives, legislatures, and judiciaries. These varying and evolving interpretations can, in turn, change and impact the international rules themselves. These similarities and differences make for an important, but thus far, largely unexamined object of comparison. This is the premise for this book, and for what the editors call "comparative international law." This book achieves three objectives. The first is to show that international law is not a monolith. The second is to map the cross-country similarities and differences in international legal norms in different fields of international law, as well as their application and interpretation with regards to geographic differences. The third is to make a first and preliminary attempt to explain these differences. It is organized into three broad thematic sections, exploring: conceptual matters, domestic institutions and comparative international law, and comparing approaches across issue-areas. The chapters are authored by contributors who include leading international law and comparative law scholars with diverse backgrounds, experience, and perspectives.