The Role of Domestic Courts in Treaty Enforcement

Author: David Sloss
Publisher: Cambridge University Press
ISBN: 113948334X
Format: PDF
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This book examines the application of treaties by domestic courts in twelve countries. The central question is whether domestic courts actually provide remedies to private parties who are harmed by a violation of their treaty-based rights. The analysis shows that domestic courts in eight of the twelve countries - Australia, Canada, Germany, India, the Netherlands, Poland, South Africa, and the United Kingdom - generally do enforce treaty-based rights on behalf of private parties. On the other hand, the evidence is mixed for the other four countries: China, Israel, Russia, and the United States. In China, Israel, and Russia, the trends are moving in the direction of greater judicial enforcement of treaties on behalf of private parties. The United States is the only country surveyed where the trend is moving in the opposite direction. US courts' reluctance to enforce treaty-based rights undermines efforts to develop a more cooperative global order.

International Law in the U S Supreme Court

Author: David L. Sloss
Publisher: Cambridge University Press
ISBN: 1139497863
Format: PDF, ePub
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From its earliest decisions in the 1790s, the US Supreme Court has used international law to help resolve major legal controversies. This book presents a comprehensive account of the Supreme Court's use of international law from its inception to the present day. Addressing treaties, the direct application of customary international law and the use of international law as an interpretive tool, this book examines all the cases or lines of cases in which international law has played a material role, showing how the Court's treatment of international law both changed and remained consistent over the period. Although there was substantial continuity in the Supreme Court's international law doctrine through the end of the nineteenth century, the past century has been a time of tremendous doctrinal change. Few aspects of the Court's international law doctrine remain the same in the twenty-first century as they were two hundred years ago.

Subsequent Agreements and Subsequent Practice in Domestic Courts

Author: Katharina Berner
Publisher: Springer
ISBN: 3662549379
Format: PDF, Mobi
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The book analyses how subsequent agreements and subsequent practice as defined in articles 31 and 32 of the 1969 Vienna Convention on the Law of Treaties have been applied in interpretative reality. Based on the jurisprudence of domestic courts, it elucidates the distribution of power between the parties to a treaty and other actors. To start with, the book traces the origins of subsequent agreements and subsequent practice and places them in their broader legal context. Next, it explores the legal status and effects of subsequent agreements and subsequent practice, explains why such agreements are only rarely used, and defines the relevance of non-party practice in the interpretative process. In closing, it critically examines how domestic courts have approached the normative heart of subsequent practice, i.e. the notion of ‘agreement’. Thus, this book ultimately challenges the traditional assumption that the parties are the joint masters of the treaty.

The Role of National Courts in Applying International Humanitarian Law

Author: Sharon Weill
Publisher: OUP Oxford
ISBN: 0191508624
Format: PDF, Mobi
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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 Legal Effects of EU Agreements

Author: Mario Mendez
Publisher: OUP Oxford
ISBN: 019164837X
Format: PDF, Kindle
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This is an open access title available under the terms of a CC BY-NC-ND 3.0 International licence. It is free to read at Oxford Scholarship Online and offered as a free PDF download from OUP and selected open access locations. Comprehensively examining the legal effects of EU concluded treaties, this book provides a thorough analysis of this increasingly important and rapidly growing area of EU law. The EU has concluded more than 1000 treaties including recently its first human rights treaty (the UN Rights of Persons with Disability Convention). These agreements are regularly invoked in litigation in the Courts of the member states and before the EU courts in Luxembourg but their ramifications for the EU legal order and that of the member states remains underexplored. Through analysis of over 300 cases, the author finds evidence of a twin-track approach whereby the Court of Justice of the European Union (CJEU) adopts a maximalist approach to Treaty enforcement where EU agreements are invoked in challenges to member state level action whilst largely insulating EU action from meaningful review vis-à-vis agreements. The book also reveals novel findings regarding the use of EU agreements in EU level litigation including: the types and which specific EU agreements (including the types of provisions) have arisen in litigation; the nature of the proceedings (preliminary rulings or direct actions) and the number of occasions in which they have been addressed in challenges to member state or EU action and the outcomes; who has been litigating (individuals, institutions, or member states) and which domestic courts have been referring questions to the CJEU. The significance of the judicial developments in this area are situated within the context of the domestic constitutional ramifications for member state legal orders thus revealing a neglected dimension in the constitutionalization debates which traditionally emphasized the ramifications of internal EU law for the domestic constitutional order without expressly accommodating the constitutional significance of this external category of EU law nor the different challenges that this poses domestically. This volume will serve as a reference point for future work in this area and will also be of assistance to EU law practitioners dealing with EU agreements.

Interpretation in International Law

Author: Andrea Bianchi
Publisher: OUP Oxford
ISBN: 0191038709
Format: PDF, Mobi
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International lawyers have long recognised the importance of interpretation to their academic discipline and professional practice. As new insights on interpretation abound in other fields, international law and international lawyers have largely remained wedded to a rule-based approach, focusing almost exclusively on the Vienna Convention on the Law of Treaties. Such an approach neglects interpretation as a distinct and broader field of theoretical inquiry. Interpretation in International Law brings international legal scholars together to engage in sustained reflection on the theme of interpretation. The book is creatively structured around the metaphor of the game, which captures and illuminates the constituent elements of an act of interpretation. The object of the game of interpretation is to persuade the audience that one's interpretation of the law is correct. The rules of play are known and complied with by the players, even though much is left to their skills and strategies. There is also a meta-discourse about the game of interpretation - 'playing the game of game-playing' - which involves consideration of the nature of the game, its underlying stakes, and who gets to decide by what rules one should play. Through a series of diverse contributions, Interpretation in International Law reveals interpretation as an inescapable feature of all areas of international law. It will be of interest and utility to all international lawyers whose work touches upon theoretical or practical aspects of interpretation.

The Interpretation of International Law by Domestic Courts

Author: Helmut Philipp Aust
Publisher: Oxford University Press
ISBN: 0191059420
Format: PDF
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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.

International Law and Domestic Legal Systems

Author: Dinah Shelton
Publisher: OUP Oxford
ISBN: 0191029769
Format: PDF, ePub, Docs
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Different countries incorporate and interpret international law in different ways. This book provides a systematic analysis of the domestic constitutional regime of over two dozen countries, setting out the status accorded to international law in those countries and its normative weight, as well as problems relating to its implementation. This country-by-country comparison allows the book to examine how the international legal order and domestic legal systems interact and influence each other. Through a series of chapters on the role of international law in 27 countries throughout the world, it shows a growing tendency towards greater democratic participation in treaty-making coupled with a significant utilization of informal agreements that by-pass such participation, as well as a role for non-binding normative instruments as persuasive authority in domestic judicial decision-making. The chapters suggest a stronger attachment to international law in legal systems that have survived a period of repression, resulting in many cases in a higher normative status for international human rights instruments in those states. The impact of the European Union on the constitutional order of its member states is also examined.