The Practice of International and National Courts and the (De-)Fragmentation of International Law

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 subject matter addressed in this edited volume is timely as international and national courts increasingly apply international law... This book provides a rich and complex survey of how fragmentation in international law is being countered (or not) by international and national courts through a wide variety of ways and means. It is important to note that it reads more as a series of substantive case-studies than as a comprehensive analysis of fundamental normative questions a point which the editors acknowledge. This is understandable given that further scholarship, especially on the normative and empirical aspects, on the role of international and national courts in relation to fragmentation needs to be undertaken, and I believe that this book has contributed in no small way toward that effort.

Auteur
Ole Kristian Fauchald is Professor of Law at the Department of Public and International Law, University of Oslo. André Nollkaemper is Professor of Public International Law and Director of the Amsterdam Center for International Law, University of Amsterdam.

Texte du rabat

This book aims to enhance our understanding of how international and national courts can, and do, contribute to or mitigate problems associated with fragmentation. It contains case studies from international regimes (eg WTO, IMF, ECtHR) and from various national jurisdictions (including Japan, Norway, Switzerland and the UK).

Contenu
Part One International Courts 1 Introduction 2 One Law to Rule Them All: Should International Courts Be Viewed as Guardians of Procedural Order and Legal Uniformity? Yuval Shany 3 Customary Rules of Interpretation in the Practice of WTO Dispute Settlement Bodies Lukasz Gruszczynski 4 IMF-WTO Interaction: Institutional, Jurisdictional and Procedural Aspects Claus D Zimmermann 5 Sources of Law and Arbitral Interpretations of Pari Materia Investment Protection Rules Martins Paparinskis 6 The ECHR and its Normative Environment: Difficulties Arising from a Regional Human Rights Court's Approach to Systemic Integration Ragnar Nordeide Part Two National Courts 7 The Systemic Integration of International Law by DomesticCourts: Domestic Judges as Architects of the Consistency of the International Legal Order Jean d'Aspremont 8 Legal Integration through Judicial Dialogue Tor-Inge Harbo 9 Judicial Dialogue in Multi-level Governance: The Impact of the Solange Argument Antonios Tzanakopoulos 10 Flux and Fragmentation in the International Law of State Jurisdiction: The Synecdochal Example of Canada's Domestic Court Conflicts over Accountability for International Human Rights Violations Robert J Currie and Hugh M Kindred 11 Immunities and Human Rights: Dissecting the Dialogue in National and International Courts Philippa Webb 12 Transjudicial Dialogue and Consistency in Human Rights Jurisprudence: A Case Study on Diplomatic Assurances against Torture Aristoteles Constantinides 13 Racial Discrimination in Japan: Unity, Diversity and International Law Timothy Webster 14 Subtle but Enduring The Role of Domestic Courts in the Shaping of International Economic Law through Proper Interpretation of Domestic Law: The WTO Agreement before Swiss Courts Andreas R Ziegler 15 Conclusions Ole Kristian Fauchald and André Nollkaemper