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

Edited by: Ole Kristian Fauchald, André Nollkaemper

ISBN13: 9781849466639
Published: September 2014
Publisher: Hart Publishing
Country of Publication: UK
Format: Paperback (Hardback in 2012)
Price: £30.00
Hardback edition , ISBN13 9781849462471



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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 specific 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, this development 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 their actual practice in applying such law, will be coloured by national law.

Against the background of differing normative appraisals of the phenomenon of fragmentation, 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 (including the WTO, the IMF, investment arbitration and the ECtHR) and from various national jurisdictions (including Japan, Norway, Switzerland and the UK), providing an improved basis for conclusions to be drawn in the final chapter. In particular this conclusion examines the principles and techniques that international and national courts have applied to counteract the negative effects of fragmentation.

Subjects:
Public International Law
Contents:
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 Andre Nollkaemper