Kretzmer & Ronen: The Occupation of Justice: The Supreme Court of Israel and the Occupied Territories (2d ed.)

David Kretzmer (Hebrew Univ. - Law) & Yaël Ronen (Sha'arei Mishpat Academic Center for Science and Law) have published The Occupation of Justice: The Supreme Court of Israel and the Occupied Territories (2d ed., Oxford Univ. Press 2021). Here's the abstract:

Judicial review by Israel's Supreme Court over actions of Israeli authorities in the territories occupied by Israel in 1967 is an important element in Israel's legal and political control of these territories. The Occupation of Justice presents a comprehensive discussion of the Court's decisions in exercising this review. This revised and expanded edition includes updated material and analysis, as well as new chapters. Inter alia, it addresses the Court's approach to its jurisdiction to consider petitions from residents of the Occupied Territories; justiciability of sensitive political issues; application and interpretation of the international law of belligerent occupation in general, and the Fourth Geneva Convention in particular; the relevance of international human rights law and Israeli constitutional law; the rights of Gaza residents after the withdrawal of Israeli forces and settlements from the area; Israeli settlements and settlers; construction of the separation barrier in the West Bank; security measures, including internment, interrogation practices, and punitive house demolitions; and judicial review of hostilities.

The study examines the inherent tension involved in judicial review over the actions of authorities in a territory in which the inhabitants are not part of the political community the Court belongs to. It argues that this tension is aggravated in the context of the West Bank by the glaring disparity between the norms of belligerent occupation and the Israeli government's policies. The study shows that while the Court's review has enabled many individuals to receive a remedy, it has largely served to legitimise government policies and practices in the Occupied Territories.

Kunz: Richter über internationale Gerichte? Die Rolle innerstaatlicher Gerichte bei der Umsetzung der Entscheidungen von EGMR und IAGMR

Raffaela Kunz (Max Planck Institute for Comparative Public Law and International Law) has published Richter über internationale Gerichte? Die Rolle innerstaatlicher Gerichte bei der Umsetzung der Entscheidungen von EGMR und IAGMR (Springer 2020). Here's the abstract:

Das Open-Access-Buch untersucht am Beispiel des Europäischen Gerichtshofs für Menschenrechte (EGMR) und des Interamerikanischen Menschenrechtsgerichtshofs (IAGMR), welche Rolle innerstaatliche Gerichte bei der Umsetzung internationaler Entscheidungen wahrnehmen. Wann sind sie bereit ihre Pendants in Straßburg bzw. San José bei der Umsetzung ihrer Entscheidungen zu unterstützen und diese gleichsam unmittelbar „anzuwenden“, und wo ziehen sie Grenzen und rote Linien? Was sind die Probleme, die ihnen begegnen, und befinden sich Gerichte tatsächlich im Wandel hin zu einer defensiveren und weniger völkerrechtsfreundlichen Haltung, wie einige jüngere Beispiele vermuten lassen?

Das Werk widmet sich der Frage, welche Wirkungen innerstaatliche Gerichte bereit sind, den Entscheidungen der Menschenrechtsgerichte zukommen zu lassen – und zwar genau dann, wenn sich das innerstaatliche Recht nicht dazu äußert. Es zeigt auf, dass hinter der vermeintlich technischen Ausgangsfrage fundamentale Fragen verfassungsrechtlicher Natur stehen und sich am Beispiel der Menschenrechtsgerichte einige der zentralen Schwierigkeiten und Probleme zeigen, wie sie beim Zusammenspiel von Rechtsordnungen in Zeiten globalen Regierens entstehen.

Ammann: Domestic Courts and the Interpretation of International Law: Methods and Reasoning Based on the Swiss Example

Odile Ammann (Universität Zürich - Law) has published Domestic Courts and the Interpretation of International Law: Methods and Reasoning Based on the Swiss Example (Brill | Nijhoff 2020). Here's the abstract:

In this book, I examine how Swiss courts, but also domestic courts in general, do and must interpret international law. For this purpose, I analyze whether they comply with what international law requires from States when they interpret their international legal obligations. I also assess whether Swiss courts’ interpretations are predictable, clear, and consistent. I then suggest how to improve this domestic judicial practice from these two perspectives.

The two basic claims guiding my study are the following. First, Switzerland and other States, when interpreting international law via their organs, including their courts, must abide by the interpretative methods required by international law. They must use these methods as guides in their interpretative process. Indeed, courts’ adherence to the law’s interpretative methods is a condition of the legality of their decisions. Second, courts, qua legal reasoners, must interpret the law as predictably, clearly, and consistently as possible. The predictability, clarity, and consistency of domestic courts’ interpretations of international law matter because these virtues support legality. Said virtues also matter because they influence the extent to which domestic judgments constitute reliable and helpful means for ascertaining international law.

Eksteen: The Role of the Highest Courts of the United States of America and South Africa, and the European Court of Justice in Foreign Affairs

Riaan Eksteen has published The Role of the Highest Courts of the United States of America and South Africa, and the European Court of Justice in Foreign Affairs (Asser Press 2019). Here's the abstract:

This book deals with what the author considers a sorely neglected question, namely the role of the judiciary in states’ foreign policy processes. Eksteen argues that the impact of the judiciary on foreign affairs is understudied and that recognition of its role in foreign affairs is now due. This makes it a ground-breaking scholarly contribution that should first of all prove of value to students, scholars, researchers and practitioners in the two broad fields of politics and law for the wide scope of issues it covers and the very comprehensive reference lists it contains. Secondly, professionals working within politics, including members of the legislatures of the United States, the European Union and South Africa, as well as members of the judiciaries there, should find this book of benefit. A detailed examination has been undertaken of the role of the United States Supreme Court, the two high courts in South Africa, namely the Constitutional Court and the Supreme Court of Appeal, and the European Court of Justice of the European Union, in foreign affairs. The author substantiates the unmistakable fact that these Courts have become involved in and influence foreign affairs. Furthermore, that they have not shied away from using their judicial authority when dealing with cases touching on foreign affairs and especially presidential overreach. The lack of recognition of the judiciary’s role in foreign affairs is still noticeable in Foreign Policy Analysis (FPA) literature. This book concludes that FPA has to accept and give proper recognition to the judiciary and its increasing relevance in foreign affairs.

Kunz: Judging International Judgments Anew? The Human Rights Courts Before Domestic Courts

Raffaela Kunz (Max Planck Institute for Comparative Public Law and International Law) has posted Judging International Judgments Anew? The Human Rights Courts Before Domestic Courts (European Journal of International Law, forthcoming). Here's the abstract:

In recent times, instances of contestation of the ECtHR and the IACtHR make headlines, and in many of these cases domestic courts play a role by refusing to follow the human rights courts or even declaring their judgments to be unconstitutional. This paper undertakes an in-depth analysis of these instances of judicial resistance and puts them into context. This shows that domestic courts, even though originally not having been allocated this role, have become important ‘compliance partners’ of the human rights courts and now play an important and autonomous role in the implementation of their judgments. At the same time, they act as ‘gatekeepers’ and limit their effects in the domestic order. Recent cases even suggest a turn to a less open and more national self-perception of domestic courts. While this to some extent reflects the multiple – and sometimes conflicting – roles domestic courts perform at the intersection of legal orders, the paper argues that the open and flexible stance many domestic courts take when faced with international judgments is better suited to cope with the complex and plural legal reality than systematically judging anew on matters already decided by the human rights courts.

Hostovsky Brandes: International Law in Domestic Courts in an Era of Populism

Tamar Hostovsky Brandes (Ono Academic College - Law) has posted International Law in Domestic Courts in an Era of Populism (International Journal of Constitutional Law, forthcoming). Here's the abstract:

This article examines the manner in which the rise of populism affects the use of international law by domestic courts. It argues that populism may have a negative effect on the willingness of domestic courts to refer to international law. It further argues that although such response is understandable, it is regrettable, since incorporation of international law into domestic court rulings can serve as a counter-populism measure. Maintaining international law as part of the domestic legal discourse is particularly important in a populist setting, for two reasons. First, where constitutionalism is overtaken by populists, international law can serve as an important source on which courts can draw to protect human rights. In addition, referral, analysis and application of international law are means of maintaining pluralism in legal and public debate and, accordingly, of enhancing democracy.

Benvenisti & Downs: Between Fragmentation and Democracy: The Role of National and International Courts

Eyal Benvenisti (Univ. of Cambridge & Law) & George W. Downs have published Between Fragmentation and Democracy: The Role of National and International Courts (Cambridge Univ. Press 2017). Here's the abstract:

Between Fragmentation and Democracy explores the phenomenon of the fragmentation of international law and global governance following the proliferation of international institutions with overlapping jurisdictions and ambiguous boundaries. The authors argue that this problem has the potential to sabotage the evolution of a more democratic and egalitarian system and identify the structural reasons for the failure of global institutions to protect the interests of politically weaker constituencies. This book offers a comprehensive understanding of how new global sources of democratic deficits increasingly deprive individuals and collectives of the capacity to protect their interests and shape their opportunities. It also considers the role of the courts in mitigating the effects of globalization and the struggle to define and redefine institutions and entitlements. This book is an important resource for scholars of international law and international politics, as well as for public lawyers, political scientists, and those interested in judicial reform.

Call for Papers: ASIL International Law in Domestic Courts IG Works-in-Progress Workshop

The International Law in Domestic Courts Interest Group of the American Society of International Law has issued a call for papers for its annual works-in-progress workshop, to take place December 8, 2017, at UCLA School of Law. If you have a work-in-progress that you would like to present, please send an abstract (or more if you prefer) to interest group co-chairs Kristina Daugirdas and Jean Galbraith (kdaugir[at]umich.edu, jgalbraith[at]law.upenn.edu) by Friday, September 15, 2017. Five or six papers will be selected. Preference will be given to papers that focus on U.S. courts, but all proposals are welcome. Please note that those whose papers are selected will need to submit a workshop-ready draft by November 17, 2017, for circulation to the other workshop participants.

Methymaki & Tzanakopoulos: Reflexivity of the Sources and the Enforcement of International Law: Domestic Courts as Sources and Enforcers

Eleni Methymaki (Univ. of Glasgow - Law) & Antonios Tzanakopoulos (Univ. of Oxford - Law) have posted Another Brick in the Wall -- Reflexivity of the Sources and the Enforcement of International Law: Domestic Courts as Sources and Enforcers (in The Oxford Handbook on the Sources of International Law, Samantha Besson & Jean d’Aspremont eds., forthcoming). Here's the abstract:

What is the role of domestic courts in the ideal continuum commencing from sources (where the law begins its life) and ultimately ending at the enforcement of the law in a specific case? Where, if anywhere, do they fit in this continuum? Put differently, are domestic court decisions a cause (source) or an effect (enforcement) of international law? What we argue in this essay is that enforcement of international law is reflexive, rather than reactive. Reflexitvity is defined as a circular relationship between cause and effect, and there is indeed such a circular relationship — a ‘feedback loop’ — between the sources of international law and its enforcement: neither of the two can be finally identified as the ultimate cause or the ultimate effect. There is thus no real continuum, with domestic courts occupying this or that position on it. Rather, domestic court decisions are both part of the cause (sources) and of the effect (enforcement) of international law. The enforcement of a rule of law in a specific case constitutes, in accordance with the sources doctrine, yet another brick in the wall of that same ever-changing rule. And given the increasingly important position that domestic courts are assuming in the enforcement of international law, they become ever more important agents of development of that law, reinforcing their position in the doctrine of sources.

Putnam: Courts without Borders: Law, Politics, and U.S. Extraterritoriality

Tonya L. Putnam (Columbia Univ. - Political Science) has published Courts without Borders: Law, Politics, and U.S. Extraterritoriality (Cambridge Univ. Press 2016). Here's the abstract:

Courts without Borders is the first book to examine the politics of judicial extraterritoriality, with a focus on the world's chief practitioner: the United States. For much of the post-World War II era, the United States has been a frequent yet selective regulator of activities outside its territory, and US federal courts are often on the front line in deciding the extraterritorial reach of US law. At stake in these jurisdiction battles is the ability to bring the regulatory power of the United States to bear on transnational disputes in ways that other states frequently dislike both in principle and in practice. This volume proposes a general theory of domestic court behavior to explain variation in extraterritorial enforcement of US law, emphasizing how the strategic behavior of private actors is important to mobilizing courts and in directing their activities.

Aust & Nolte: The Interpretation of International Law by Domestic Courts: Uniformity, Diversity, Convergence

Helmut Philipp Aust (Humboldt Univ. Berlin - Law) & Georg Nolte (Humboldt Univ. Berlin - Law; Member, International Law Commission) have published The Interpretation of International Law by Domestic Courts: Uniformity, Diversity, Convergence (Oxford Univ. Press 2016). Contents include:

• Georg Nolte, Introduction
• Michael Waibel, Principles of Treaty Interpretation - Developed for and Applied by National Courts
• André Nollkaemper, Grounds for the Application of International Rules of Interpretation in National Courts
• Eirik Bjorge, 'Contractual' and 'Statutory' Treaty Interpretation in Domestic Courts? Convergence around the Vienna Rules
• Antonios Tzanakopoulos, Judicial Dialogue as A Means of Interpretation
• Mathias Forteau, The Role of the International Rules of Interpretation for the Determination of Direct Effect of International Agreements
• Peter Staubach, The Interpretation of Unwritten International Law by Domestic Judges
• Dire Tladi, Interpretation of Treaties in an International Law-Friendly Framework: the Case of South Africa
• Alejandro Rodiles, The Law and Politics of the Pro Persona Principle in Latin America
• Christian Djeffal, Dynamic and Evolutive Interpretation of the ECHR by Domestic Courts? An Inquiry into the Judicial Architecture of Europe
• Julian Arato, Deference to the Executive: The US Debate in Global Perspective
• Yukiko Takashiba, Gingerly Walking on the VCLT Frontier? Reflections from a Survey on the Interpretive Approach of the Japanese Courts to Treaties
• Vik Kanwar, Treaty Interpretation in Indian Courts - Adherence, Coherence, and Convergence
• Theresa Reinold, Diffusion Theories and the Interpretive Approaches of Domestic Courts
• Achilles Skordas, Treaty Interpretation and Global Governance: The Role of Domestic Courts
• Olga Frishman & Eyal Benvenisti, National Courts and Interpretive Approaches to International Law: The Case Against Convergence
• Helmut Philipp Aust, Between Universal Aspiration and Local Application: Concluding Observations

Teubner: Exogenous self-binding: How national and international courts contribute to transnational constitutionalization

Gunther Teubner (Univ. of Copenhagen - iCourts) has posted Exogenous self-binding: How national and international courts contribute to transnational constitutionalization (in Transconstitutionalism, Giancarlo Corsi, Elena Esposito & Alberto Febbrajo eds., forthcoming). Here's the abstract:

How a constitution deals with its foundational paradox – this issue is not restricted to the state constitution alone, but is also and pertinently applicable to the constitutions of other social systems. The starting point is Niklas Luhmann’s argument, that the law, with the aid of the state constitution, externalises its original paradox towards politics, while politics externalises its own towards the law. Over and above this, the question will be raised about whether – and if so, how – the law also purses a comparable deparadoxisation vis-à-vis other social subsystems. Meanwhile, the same question is asked, but now in the opposite direction, about whether other social systems also behave like politics, externalising their paradoxes towards the law with the aid of a constitution, or whether they employ alternative deparadoxisations. Both of these lead to the concluding question, regarding which subsequent problems are generated by those externalisations. The differences between various approaches to deparadoxisation may possibly clarify four questions, so: why is judge-made law developing new prominence transnationally? Under what conditions will a particular kind of natural law make headway again against positivism even today? How is it that protest movements are shifting the sights of their protests? And for what reasons do social subsystems constitutionalise not in accordance with a standard pattern, but with clear differences of intensity?

Aust: Between Universal Aspiration and Local Application: Concluding Observations

Helmut Aust (Humboldt Univ. of Berlin - Law) has posted Between Universal Aspiration and Local Application: Concluding Observations (in The Interpretation of International Law by Domestic Courts. Unity, Diversity, Convergence, H.P. Aust & G. Nolte eds., forthcoming). Here's the abstract:

This chapter argues that the interpretation of international law by domestic courts is situated between a universal aspiration of international law — which is connected with claims for a need for uniform interpretation — and the requirements that international law is applied with a view to the local realities. The contribution argues that although domestic courts are not technically under an obligation to make use of the international rules of interpretation, a normative preference on the part of the international legal system exists which militates for a common approach to (treaty) interpretation. Articles 31–33 of the Vienna Convention on the Law of Treaties supply the necessary toolbox in this regard. In and of themselves, these international rules of interpretation do not demand very much of domestic judges. It is convergence at a very high level of abstraction which is called for in the interest of a basic systemic unity of international law.

Waibel: Principles of Treaty Interpretation: Developed for and Applied by National Courts?

Michael Waibel (Univ. of Cambridge - Law) has posted Principles of Treaty Interpretation: Developed for and Applied by National Courts? Here's the abstract:

More than 40 years after the Vienna conference on the law of treaties codified principles of interpretation in the Vienna Convention on the Law of Treaties, their practical operation remains contested and in flux. Neither the ratification of the VCLT by many (though not all) states, nor the general recognition that Articles 31-33 represent customary international law, has resolved the debate over the ‘correct’ approach to interpreting treaties, and international law in general. Debates in international law over the ‘correct’ interpretative approach mirror similar debates in domestic legal systems.

Even though the VCLT’s role in treaty interpretation has been studied extensively, its use in how national courts interpret international law has received far less attention. This chapter examines whether the drafters of the VCLT drafted Articles 31-33 partly with national courts in mind, and how national courts in fact interpret treaties. In considering the practical application of the VCLT’s interpretive principles, the chapter largely leaves aside the normative question whether it is desirable for national courts to interpret treaties based on the VCLT, to the exclusion of domestic canons of interpretation.

Section II sets the scene for treaty interpretation by national courts. It looks at the development of interpretive principles, and asks whether national courts are among their intended users. Section III considers national judges as members of diverse epistemic communities that influence treaty interpretation and explores the value of the VCLT’s minimum harmonisation of interpretive methods, particularly for uniform, private law-making treaties. Section IV considers the doctrinal question of whether national courts are formally bound by the VCLT’s interpretive principles and the empirical question of whether they routinely apply the VCLT even in the absence of a formal legal obligation to interpret treaties in accordance with the VCLT. Section V examines the persistent tendency for national courts to deploy non-VCLT methodologies such as contract and statutory imagery in interpreting treaties.

Dothan: Reputation and Judicial Tactics: A Theory of National and International Courts

Shai Dothan (Tel Aviv Univ.) has published Reputation and Judicial Tactics: A Theory of National and International Courts (Cambridge Univ. Press 2014). Here's the abstract:

This book argues that national and international courts seek to enhance their reputations through the strategic exercise of judicial power. Courts often cannot enforce their judgments and must rely on reputational sanctions to ensure compliance. One way to do this is for courts to improve their reputation for generating compliance with their judgments. When the court's reputation is increased, parties will be expected to comply with its judgments and the reputational sanction on a party that fails to comply will be higher. This strategy allows national and international courts, which cannot enforce their judgments against states and executives, to improve the likelihood that their judgments will be complied with over time. This book describes the judicial tactics that courts use to shape their judgments in ways that maximize their reputational gains.

Frishman & Benvenisti: National Courts and Interpretative Approaches to International Law: The Case Against Convergence

Olga Frishman (Tel Aviv Univ. - Law) & Eyal Benvenisti (Tel Aviv Univ. - Law) have posted National Courts and Interpretative Approaches to International Law: The Case Against Convergence (in Interpretation of International Law by Domestic Courts, Helmut Philip Aust & Georg Nolte eds., forthcoming). Here's the abstract:

Should national courts act as agents of the international community and promote a global rule of law based on a hierarchical structure which puts international tribunals – primarily the International Court of Justice – at its apex? For that purpose, must national courts abandon their current practices of divergent methods of interpretation and use the same rules of interpretation of international law that international courts apply? In this chapter we reject this “convergence thesis.” Even when taking only global interests into account, we argue that the convergence thesis is neither necessary nor sufficient to promote collective values; in fact it is counterproductive. Instead we outline a middle road for national courts to take: neither a solipsistic outlook that requires national courts to put national interests above all is appropriate, nor a cosmopolitan attitude that regards national courts as mere agents of the international legal system operating within states. Instead, we offer an approach that is informed by the vision of sovereignty as a trusteeship of humanity, which requires national courts to take global interests into account when interpreting international law. This view does not necessarily imply that national courts should reject international rules of interpretation, but it does imply that they should not aspire to mimic international courts.

de Búrca: International Law Before the Courts: The European Union and the United States Compared

Gráinne de Búrca (New York Univ. - Law) has posted International Law Before the Courts: The European Union and the United States Compared (Virginia Journal of International Law, forthcoming). Here's the abstract:

Against the background of a broadly shared perception of the US and the EU as very different kinds of international actors, and a related assumption that the approaches of the US Supreme Court and the European Court of Justice towards the internalization of international law are also very different, this article takes a systematic look at the approaches of the European Court of Justice and the US Supreme Court to the internalization of international law over the decade 2002-2012. The perception of the US in recent decades has been as a frequently unilateralist and exceptionalist actor in international relations, with the Supreme Court remaining resistant to law which emanates from outside the American legislative process, or which lacks a clear domestic imprimatur as applicable US law. The EU, by comparison, is seen as having a greater commitment to multilateralism and to the development and observance of international law, and the case-law of the Court of Justice has until recently been broadly viewed – with WTO jurisprudence seen as an exception – as actively contributing to shaping that image through its embrace and internalization of international law norms. The analysis over a ten-year period of the case law of the two courts dealing with international law suggests that, rather than a simplified picture of the Supreme Court as the skeptical judicial arm of an internationally exceptionalist United States and the CJEU as the embracing judicial arm of an open and internationalist European Union, there are many more commonalities between the approaches of the two courts than conventional depictions acknowledge.

Ferdinandusse: Improving Inter-State Cooperation for the National Prosecution of International Crimes: Towards a New Treaty?

Ward Ferdinandusse (Univ. of Groningen - Law) has posted an ASIL Insight on Improving Inter-State Cooperation for the National Prosecution of International Crimes: Towards a New Treaty?

Wibabara: Gacaca Courts versus the International Criminal Tribunal for Rwanda and National Courts

Charity Wibabara has published Gacaca Courts versus the International Criminal Tribunal for Rwanda and National Courts: Lessons to Learn from the Rwandan Justice Approaches to Genocide (Nomos 2014). Here's the abstract:

The magnitude and the nature of the human rights violations that engulfed Rwanda in 1994 prompted both the Rwandan government and the international community to establish different accountability mechanisms in order to hold perpetrators accountable. At the international level, the UN established the International Criminal Tribunal for Rwanda (ICTR) to try those bearing the greatest responsibility, the Rwandan national courts were to deal with so-called category one offenders, whereas Gacaca courts initially handled the bulk of cases that could not be handled by the ICTR and national courts (so-called category two and three perpetrators). Therefore, Rwanda offers a unique opportunity to analyse the interplay of criminal justice systems on different levels. Against this background, the study, which is divided into seven chapters, engages in disentangling the conflicting as well as overlapping elements the three justice mechanisms entail. Despite the already existing scholarship on this topic, the book offers new insights into the domestic case law of Rwanda which is under researched in comparison to the work of the ICTR. With this it adds a valuable new perspective to the international debate from the viewpoint of a Rwandan legal scholar.

Fikfak: Judicial Strategies and Their Impact on the Development of the International Rule of Law

Veronika Fikfak (Univ. of Cambridge - Lauterpacht Centre for International Law) has posted Judicial Strategies and Their Impact on the Development of the International Rule of Law (a shorter version appears in The Rule of Law at the National and International Levels: Contestations and Deference, Machiko Kanetake & André Nollkaemper eds., forthcoming). Here's the abstract:

International scholars describe domestic courts as agents in the international legal order, acting in the service of the international rule of law. These courts are the first post of call where international claims are adjudicated and they are therefore the ideal organs to ensure that international law is applied as law, even against a reluctant Executive, whose actions threaten to breach the State’s international obligations. But what does it mean to say that courts protect the rule of international law? What type of behaviour does this rule require of domestic courts? The issue of how courts should act has become especially problematic in the context of challenges individuals have brought against decisions of international institutions, which the Executive has sought to enforce domestically and which arguably limit individuals’ human rights without according any opportunity for review at an international level. Faced with applications for review of legality, domestic judges have had to choose between refusing the implementation of these 'strict' international decisions and abstaining from review altogether, thus giving these international decisions their full effectiveness. Stuck between a rock and a hard place, this chapter discusses whether domestic courts can reconcile the competing interests of individuals, international institutions and the international legal order. It investigates what strategies courts have at their disposal to undertake review which provides due process protections to individuals whilst at the same time avoiding a challenge of the authority of the international institution and ensuring the international rule of law.