Title: International Law as a Common Language for National Courts
Abstract: I. INTRODUCTION It is a great pleasure for me to take part in this symposium on the teaching and practice of law in the twenty-first century. The subject I have been asked to treat in my presentation is the growing importance of international law in the contemporary world, a very vast subject indeed. However, I shall not attempt to examine any of its discrete sub-sectors, such as international human rights, international economic relations, environmental protection, the law of the sea, or others. My purpose is rather to test the growing importance of international law against the general background of the problem of how judges should behave when they are confronted with questions involving the application of international law. Let me also reassure the reader I do not intend with this paper to provide another contribution to the exhausted debate over monism and dualism as theoretical models for construing relationships between international law and domestic law.1 The focus here is practical. It begins where the monism-dualism debate ends, that is at the point where international law in one way or another has become part of domestic law. At this point the question arises of what role courts and enforcement agencies may play in developing the rule of law in international relations. More particularly, the question I want to ask is whether, despite the persistence of the Westphalian model, with its formal division of the world into about 190 nation states that act as feudal lords in their jurisdiction, international law may become a unifying element among their diverse and often conflicting legal systems. In the past, treaty law and customary law used to constitute a discrete body of law regulating matters of diplomatic relevance: treaties, war, treatment of aliens, immunities, maritime affairs, and a few others. Today, international law pervades areas traditionally reserved to the domestic jurisdiction of states such as human rights of nationals, criminal law, trade and use of natural resources, the management and conservation of the environment, and even the conservation of cultural heritage.2 Adjudication in these areas sometimes requires a difficult blending of and international norms and the application of techniques to solve possible conflicts between the two legal orders, as well as the dilemma of how to reconcile separation of powers between the executive and the judiciary with the rule of law and the independence of judges. Can international law provide useful models to address such problems? Can it provide a common meaning to legal concepts, such as equity, public morals, national security, political question, state of necessity, and many others that we can find in all systems although with a different meaning? In short, can it provide a common language for judges? The answer I venture in this short paper is yes, it can. 11. ASCERTAINING CUSTOMARY LAW Let us begin with the more common question courts have to face in dealing with international cases, i.e. the identification and application of customary international law. There is no dispute that customary international law must be applied. Most modem constitutions incorporate customary international law in municipal law,3 or as in the United Kingdom and the United States, court-made rules have established that international law is part of the law of the land.4 The difficulty arises when judges are confronted with customs that are undergoing transformation, as has happened in areas such as sovereign immunities, the law of the sea, or prosecution of international crimes. In these cases courts need to explore and discover the universe of international practice and try to identify the elements of opinio iuris and generality of practice of other states rather than simply reflect precedents in law relevant to the dispute. All too often courts show the tendency toward ascertaining the existence and the content of a norm of customary international law on the basis of precedents found in law. …
Publication Year: 2001
Publication Date: 2001-01-01
Language: en
Type: article
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Cited By Count: 12
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