Tuesday, September 17, 2013

Kanetake & Nollkaemper: The Application of Informal International Instruments Before Domestic Courts

Machiko Kanetake (Univ. of Amsterdam - Law) & André Nollkaemper (Univ. of Amsterdam - Law) have posted The Application of Informal International Instruments Before Domestic Courts. Here's the abstract:
The rigidity associated with formal international law has induced states and international organizations to resort to declarations, comments, guidelines and other "informal" international instruments. Despite their informality, many of these non-treaty instruments are adopted with the expectation that actions would be taken at the domestic level. This paper analyzes how and on what basis domestic courts indeed apply informal international instruments. The limited survey of judicial practices unveils that judicial references to informal international instruments, albeit in many cases symbolic, influence the outcome and give rise to the question of justification. The degree of influence and the need for justification vary depending on the purposes for which instruments are employed, the types of instruments, and the weight they carry in the judicial reasoning. The justification offered explicitly or implicitly by domestic courts in resorting to non-treaty documents is the persuasiveness, as opposed to bindingness, of instruments. Yet what constitutes persuasiveness remains unclear, and this uncertainty renders unstable the legitimacy of judicial engagement with informal instruments. While we identified the systematic association with treaties, the independence of institutions that adopt informal instruments, and the wider public acceptance as possible variables that constitute persuasiveness, these rather non-substantive criteria do not exhaust possibly more value-laden factors which determine judicial reference to informal international instruments.