The Interpretation of International Law by Domestic Courts Uniformity, Diversity, Convergence

by Aust, Helmut Philipp; Nolte, Georg

• ISBN13: 9780191802126
• ISBN10: 0191802123
• Format: eBook
• Copyright: 2016-03-14
• Publisher: Oxford University Press

Summary

The Interpretation of International Law by Domestic Courts assesses the growing role of domestic courts in the interpretation of international law. It asks whether and if so to what extent domestic courts make use of the international rules of interpretation set forth in the Vienna Convention on the Law of Treaties. Given the expectation that rules of international law are to have a uniform interpretation and application throughout the world, the practice of domestic courts is considerably more diverse. The contributions to this book analyse three key questions: first, whether international law requires a coherent interpretive approach by domestic courts. Second, whether a common or convergent methodological outlook can be found in domestic court practice. Third, whether a common interpretive approach is desirable from a normative perspective.

The book identfies a considerable tension between international law's ambition for universal and uniform application and a plurality of different approaches. This tension between unity and diversity is analysed by a group of leading international lawyers from a wide range of geographical, disciplinary and methodological approaches. Drawing on domestic practice of number of jurisdictions including, among others, Colombia, France, Japan, India, Israel, Mexico, South Africa, the United Kingdom and the United States, the book puts the interpretative practice of domestic courts in a wider context. Its chapters offer doctrinal, practical as well as theoretical perspectives on a central question for international law.

Author Biography

Helmut Philipp Aust, Senior Research Fellow, Humboldt University Berlin,Georg Nolte, Professor of Law, Humboldt University Berlin; Member of the UN International Law Commission

Helmut Philipp Aust, Dr. iur., is a Senior Research Fellow at Humboldt University Berlin. He was previously a Research Fellow at the University of Munich as well as a Visiting Fellow at the Lauterpacht Centre of International Law at the University of Cambridge and a Visiting Scholar at Melbourne Law School. He is the author of "Complicity and the Law of State Responsibility" (CUP, 2011) and co-editor (with Bardo Fassbender) of "Basistexte: Volkerrechtsdenken" (Nomos/UTB, 2012). Apart from his expertise in the fields of state responsibility and treaty interpretation, his work is currently focusing on the growing role of cities as international actors.


Georg Nolte, Dr. iur., is Professor of International Law at Humboldt University Berlin, and a member of the United Nations International Law Commission. He was previously Professor of Law at the Universities of Gottingen and Munich as held visiting positions at All Souls College, Oxford, Universite Paris II, Wissenschaftskolleg zu Berlin, as well as at Princeton University. His most recent publications include "The Charter of the United Nations - A Commentary" (co-editor, 3rd ed., OUP, 2012) and "Treaties and Subsequent Practice" (editor, OUP, 2013). He is Speaker of the interdisciplinary research project "The International Rule of Law - Rise or Decline?" at Humboldt University.

Table of Contents

1. Introduction, Georg Nolte
Part 1: Foundations and Doctrinal Aspects
2. The International Rules of Interpretation: Made for and Applied by Domestic Courts?, Michael Waibel
3. Grounds for the Application of International Rules of Interpretation in Domestic Courts, Andre Nollkaemper
4. 'Contractual' and 'Statutory' Treaty Interpretation in Domestic Courts? Convergence around the Vienna Rules, Eirik Bjorge
5. Judicial Dialogue as a Means of Interpretation, Antonios Tzanakopoulos
6. The Role of the International Rules of Interpretation for the Determination of Direct Effect of International Agreements, Mathias Forteau
7. The Interpretation of Unwritten International Law by Domestic Judges, Peter Staubach
Part 2: The Practice of Domestic Courts in Context
8. Interpretation of Treaties in an International Law-Friendly Framework: the Case of South Africa, Dire Tladi
9. The Law and Politics of the Pro Persona Principle in Latin America, Alejandro Rodiles
10. Dynamic and Evolutive Interpretation of the ECHR by Domestic Courts? An Inquiry into the Judicial Architecture of Europe, Christian Djeffal
11. Deference to the Executive: US Court Practice in Comparative Perspective, Julian Arato
12. Gingerly walking on the VCLT frontier? Reflections from a survey on the interpretive approach of the Japanese courts to treaties, Yukiko Takashiba
13. Treaty Interpretation in Indian Courts - Status, Coherence, and Convergence, Vik Kanwar
Part 3: Unity, Diversity, Convergence: Theoretical Perspectives
14. Diffusion Theories and the Interpretive Approaches of Domestic Courts, Theresa Reinold
15. Treaty Interpretation and Global Governance: the Role of Domestic Courts, Achilles Skordas
16. National Courts and Interpretative Approaches to International Law: The Case Against Convergence, Olga Frishman and Eyal Benvenisti
17. Between Universal Aspiration and Local Application: Concluding Observations, Helmut Philipp Aust