The Engagement of Domestic Courts with International Law Comparative Perspectives

The relationship between domestic courts and international law is usually defined by the frameworks of monism and dualism. The Engagement of Domestic Courts with International Law advances and develops a new paradigm for describing, assessing, and understanding the role of domestic courts in the international legal order.

Two trends are examined in parallel in this volume. The traditional dividing lines between national and international law norms and institutions have become increasingly blurred. However, the practice of domestic courts can less and less be understood by reference to a formal approach that dictates how national legal orders receive international law. The solutions that courts reach are often based on a variety of other considerations that are not captured by the classical formal models. The aim of the book is to bring together the wide variety of types of engagement, as an important step towards a better understanding of what courts do and, eventually, towards a normative exercise of articulating principles or guidelines for the engagement of domestic courts with international law.

To bring together the pragmatic approaches of domestic courts, the International Law Association Study Group on Principles on the Engagement of Domestic Courts with International Law engaged in studies with experts from a variety of backgrounds. On the basis of the Study Group's Final Report, the editors of this book continued to work with experts from different jurisdictions to collect and analyse alternate pragmatic forms of engagement from domestic courts. This publication contains the outcome of this process.

Since 1998, André Nolkaemper has been Professor of Public International Law at the Faculty of Law of the University of Amsterdam. He is also the Dean of the Faculty of Law. In 1999, he established the Amsterdam Center for International Law (ACIL), which has become a centre of excellence at the University of Amsterdam and ranks amongst the top institutions for international law in the Netherlands.
In 2012 he was elected as life-long Member of the Royal Netherlands Academy of Arts and Sciences. In 2017 he was elected as life-long Member of the Institut de Droit International.

Yuval Shany is the Hersch Lauterpacht Chair in International Law and former Dean of the Law Faculty of the Hebrew University of Jerusalem. He was a member of the UN Human Rights Committee from 2013 to 2020, and its Chair for one year. He currently serves as a senior research fellow at the Israel Democracy Institute, the Chair of the University's Minerva Center for Human Rights' academic committee, and the head of the CyberLaw program of the University's CyberSecurity Research Center. His research focuses on international human rights law, international humanitarian law, international courts, and international law in cyberspace.

Antonios Tzanakopoulos is Professor of Public International Law at the Faculty of Law of the University of Oxford. Antonios is a general international lawyer and has published on the law of international responsibility, the law of treaties, the law of immunity, the law of international dispute settlement, the law of the sea, international investment law, and others. Antonios advises states and other actors on matters of public international law and has acted as counsel or advisor in cases before international and domestic courts, including the International Court of Justice. Antonios is the Secretary-General of the International Law Association http://www.ila-hq.org/.

Eleni Methymaki teaches international law at the University of Oxford, where she is also finalising her DPhil thesis on the role of domestic law in international adjudication. Beyond academia, Eleni has experience in advising states, international organizations, and private parties on international law matters and dispute resolution.

Preface1. Engagement of Domestic Courts with International Law: Principled or Unprincipled, André Nollkaemper, Yuval Shany, and Antonios TzanakopoulosA. National and Regional Themes2. Engagement of Domestic Courts with International Law in Anglophone Africa, Magnus Killander3. Engagement of South African Domestic Courts with International Law, Hannah Woolaver4. Engagement of Chinese Courts with International Law, Dai Ruijun5. Engagement of Israel's Supreme Court with International Law, Osnat Grady Schwartz6. Engagement of Sri Lanka's Supreme Court with International Law in its Fundamental Rights Jurisdiction, Dakshinie Ruwanthika Gunarante7. Engagement of Argentina's Supreme Court with International Law, Mónica Pinto and Nahuel Maisley8. Engagement of Canadian Courts with International Law, Gib van Ert9. Engagement of United States Courts with International Law, David Sloss10. Engagement of Albanian Courts with International Law, Gentain Zyberi and Semir Sali11. Engagement of Domestic Courts with International Law in Belgium, Frédéric Dopagne12. Engagement of English Courts with International Law, Shaheed Fatima KC13. Engagement of Kosovo's Domestic (Internationalized) Courts with International Law, Zane Ratniece14. Engagement of Swiss Courts with International Law, Eva Maria Belser and Rekha Oleschak-PillaiB. Cross-Cutting Themes15. Engagement of Domestic Courts with the Findings of United Nations Human Rights Treaty Monitoring Bodies, Machiko Kanetake16. A Paradoxical Engagement: International Investment Law and Arbitration before Domestic Courts, Andreas Kulick and Joel Dahlquist Cullborg17. Engagement of Domestic Courts with International Humanitarian Law, Sharon Weill18. 'Amp Up and Amplify: Defy!' The Engagement of Domestic Courts with International Sanctions, Eleni Methymaki and Antonios TzanakopoulosC. AnnexThe ILA Study Group Final Report: Mapping the Engagement of Domestic Courts with International Law