Should the Implementation of International Rules by Domestic Courts be Bolstered?

Yuval Shany

in Realizing Utopia

Published in print March 2012 | ISBN: 9780199691661
Published online September 2012 | e-ISBN: 9780191738593 | DOI:
Should the Implementation of International Rules by Domestic Courts be Bolstered?

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Our traditional outlook on the world of adjudication regards domestic and international courts as two very different sets of institutions. Whereas domestic courts apply national law to disputes brought before them and are part of the local institutions of government, international courts apply international law and resolve disputes between two or more states. It appears, however, that the traditional view of the dividing line between national and international adjudicatory bodies is increasingly hard to reconcile with ongoing legal and political developments — in particular, the increased occurrence of jurisdictional overlaps, the assumption of a stronger international law-applying role by national courts, and the emergence of hybrid courts. The erosion of the boundaries between the said two categories of judicial institutions generates new opportunities for the future evolution of international law, but also entails a number of serious challenges. This chapter describes in Section 1 the principal contours of the process leading to the meshing of the domestic and international adjudicatory powers to apply international law. Section 2 discusses the principal implications of bolstering the international law-implementing role of domestic courts. Section 3 concludes by asking whether and how the international law-implementing role of domestic courts should be further encouraged.

Keywords: adjudication; international courts; domestic courts; international law

Chapter.  5109 words. 

Subjects: Public International Law

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