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Tzanakopoulos, A.; Tams, C.J. (2013)
Publisher: Cambridge University Press
Languages: English
Types: Article
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.
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    • 10 See further A. Tzanakopoulos, 'Domestic Courts in International Law: The International Judicial Function of National Courts', (2011) 34 Loyola of LA Int'l & Comp L Rev 133, 138-40, with further references; and cf. A. Tzanakopoulos, 'Preliminary Report of the ILA Study Group on Principles on the Engagement of Domestic Courts with International Law', in International Law Association, Report of the Seventy-Fifth Conference Held in Sofia 26-30 August 2012 (forthcoming), para. 12.
    • 11 See generally A.-M. Slaughter and W. Burke-White, 'The Future of International Law Is Domestic (or, The European Way of Law)', (2006) 47 Harvard Int'l LJ 327.
    • 12 As, for example, is roughly the case in the United Kingdom.
    • 13 See generally E. Benvenisti, 'Judicial Misgivings Regarding the Application of International Law: An Analysis of the Attitudes of National Courts', (1993) 4 EJIL 159.
    • 14 See Tzanakopoulos, 'Domestic Courts in International Law', supra note 10, 155-8, and 'Preliminary Report of the ILA Study Group', supra note 10, paras. 21-23.
    • 15 See A. Nollkaemper, 'Internationally Wrongful Acts in Domestic Courts', (2007) 101 AJIL 760, 761-2.
    • 16 On consubstantial rules see further Tzanakopoulos, 'Domestic Courts in International Law', supra note 10, 143-4 and 158, and 'Preliminary Report of the ILA Study Group', supra note 10, para. 29.
    • 17 Roberts, supra note 1, 74-6; cf. K. Knop, 'Here and There: International Law in Domestic Courts', (2000) 32 NYU JILP 501, 505-6; R. van Alebeek in this symposium.
    • 18 See notably arguments made in the contributions by R. O'Keefe and S. Olleson in this symposium.
    • 19 See, e.g., the contribution by R. van Alebeek in this symposium; and see Lauterpacht, supra note 8, 75.
    • 20 H.Lauterpacht,'TheInternationalCourtasanAgencyforDevelopingInternationalLaw',inTheDevelopmentof International Law by the International Court (1958); and already H. Lauterpacht , The Development of International Law by the Permanent Court of International Justice (1934), 2.
    • 21 F. Berman, 'The International Court of Justice as an “Agent” of Legal Development?', in Tams and Sloan, supra note 5.
    • 22 Montesquieu, De l'esprit des lois (1748), Book XI, Chapter 6.
    • 23 On the law-making power of the ICJ see, e.g., C. J. Tams and A. Tzanakopoulos, 'Barcelona Traction at 40: The ICJ as an Agent of Legal Development', (2010) 23 LJIL 781, 782-6; and A. Pellet, 'Article 38', in A. Zimmermann et al. (eds.), The Statute of the International Court of Justice: A Commentary (2012), mn 322-34, both with further references.
    • 24 See Walker, supra note 9.
    • 25 Certain German Interests in Polish Upper Silesia, [1926] PCIJ Series A No, 7, at 19 (emphasis added).
    • 26 See Art. 4 of the Articles on the Responsibility of States for Internationally Wrongful Acts and related Commentary, reproduced in (2001) II(1) ILC Ybk 31, 40-1, para. 6; for an early treatment see C. Eustathiade` s, La responsabilit e´ internationale de l' e´tat pour les actes des organes judiciaires et le probl e`me du d e´ni de justice en droit international (1936); in this symposium see further the contribution by Olleson.
    • 27 On the face of it, Art. 38(1)(d) of the ICJ Statute - mentioning 'judicial decisions' as 'as subsidiary means for the determination of rules of law' - might be added. However, this assumes that 'judicial decisions' encompass domestic decisions (which is at best controversial); and it ignores the fact that in describing judicial decisions as a 'means for the determination of rules of law', Art. 38(1)(d) deals with a material, not a formal, source of law. See Pellet, supra note 23, mn 307 et seq., esp. 321 with further references.
    • 34 There have been instances where the state has appealed a decision of a domestic court in which it was not originally a party in order to avoid the breach of an international obligation: e.g., in Tachiona v. United States, 386 F.3d 205, 213 (2d Cir. 2004) the US Court of Appeals for the Second Circuit acknowledged the legal interest of the state to intervene in judicial proceedings between private parties, and even appeal the decision of a lower court, where that decision would result in a breach of US international obligations. The release of the ARA Libertad by Ghana against the decision of its own domestic court yields another example, although there an international court had definitively (if controversially) pronounced on the issue: see 'ARA Libertad' Case (Argentina v. Ghana), Provisional Measures Order of 15 December 2012, available at http://www.itlos.org/fileadmin/itlos/documents/cases/case_no.20/C20_Order_15.12.2012.corr.pdf. See also the example of the Chilean MFA intervening to overrule the Supreme Court of Chile relayed by F. OrregoVicu n˜a, 'Diplomatic and Consular Immunities and Human Rights', (1991) 40 ICLQ 34, 41-2.
    • 35 See, e.g., the contribution by Van Alebeek in this symposium, especially her discussion of 'ripple effects'.
    • 36 See the contribution by Van Alebeek in this symposium.
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