National Courts and the International Rule of Law

This book explores how domestic courts contribute to the maintenance of the rule of international law by providing judicial control over the exercises of public powers that may conflict with international law. The main focus of the book will be on judicial control of exercise of public powers by states. Key cases that will be reviewed in this book, and that will provide empirical material for the main propositions, include Hamdan, in which the US Supreme Court reviewed detention by the United States of suspected terrorists against the 1949 Geneva Conventions; Adalah, in which the Supreme Court of Israel held that the use of local residents by Israeli soldiers in arresting a wanted terrorist is unlawful under international law, and the Narmada case, in which the Indian Supreme Court reviewed the legality of displacement of people in connection with the building of a dam in the river Narmada under the ILO Indigenous and Tribal Populations Convention 1957 (nr 107). This book primarily examines what it is that international law requires, expects, or aspires that domestic courts do, and against this backdrop of what international law requires it seeks to map patterns of domestic practice in the actual or possible application of international law, and to determine what such patterns mean for the protection of the rule of international law. Table of Contents Table of International Cases xi Table of Domestic Cases xix Table of Domestic Legislation xxxi Table of Treaties xxxiv Table of International Instruments xxxix List of Abbreviations xli 1 Introduction 1 1. Th e Quest for the International Rule of Law 1 2. Filling the Missing Link—Th e Role of National Courts 6 3. Functions 9 4. Th e Complementary Nature of Legal Systems 10 5. Th e Problem: Th e Double Bind 13 6. Approach and Method 15 I CONDITIONS 2 Jurisdiction 21 1. Th e Indirect Nature of Jurisdiction-Regulating Rules 22 2 Th e Primary Role of National Courts 25 3 Concurrent Jurisdiction 27 4. International Sources of Judicial Power 35 5. Th e Complementary Role of National Law 44 3 Independence 47 1. Th e Problem 49 2. Th e Power of Independence 53 3. Obligations 59 4. Incentives 63 5. Th e Complementary Role of National Law 66 4 Applicable Law 68 1. Th e Neutrality of International Law 68 2. Th e Complementary Role of National Law 73 3. Considerations of Legal Policy 81 4. Procedural Law 85 viii Table of Contents 5 Standing 91 1. Th e Concept of Standing 92 2. Interstate Claims 95 3. Private Claims 97 4. Th e Complementary Role of National Law 109 II THE APPLICATION OF INTER NATIONAL L AW 6 Direct Eff ect 117 1. Th e Concept 117 2. Th e Power of Direct Eff ect 122 3. International Legal Nature of the Concept 124 4. Conditions 130 7 Consistent Interpretation 139 1. Th e Concept 139 2. Th e Power of Consistent Interpretation 143 3. Basis of Consistent Interpretation 147 4. Principles of Administrative Review 158 5. Limits 161 8 Reparation 166 1. Situations in which the Question of Reparation May Arise 168 2. Foundation of the Domestic Eff ect of International Principles of Reparation 178 3. Domestication of Principles of Reparation 187 4. Translation 191 5. Forms of Reparation 197 III E X TER NA L EFFEC TS 9 Fragmentation 217 1. Causes 218 2. Th e International Quality of Domesticated International Law 224 3. Th e Unifying Role of Decisions of Courts 235 10 Authority 244 1. Situations in which the Question of Authority May Arise 246 2. Beyond Facts 252 3. Bases of Authority 256 4. Determination and Development of International Law 264 Table of Contents ix 11 Supremacy Restrained 280 1. Domestic Resistance to the Supremacy of International Law 282 2. Th e Formality of the Principle of Supremacy 286 3. An Integrative Perspective 288 4. An International Solution? 292 5. Supremacy Restrained 294 IV CONCLUSION 12 Concluding Remarks: Bringing Together the International and the National Rule of Law 299 Bibliography 305 Index 331 This book explores how domestic courts contribute to the maintenance of the rule of international law by providing judicial control over the exercises of public powers that may conflict with international law. The main focus of the book is on judicial control of exercise of public powers by states. Key cases that are reviewed in this book, and that provides empirical material for the main propositions, include Hamdan , in which the US Supreme Court reviewed detention by the United States of suspected terrorists against the 1949 Geneva Conventions; Adalah , in which the Supreme Court of Israel held that the use of local residents by Israeli soldiers in arresting a wanted terrorist is unlawful under international law; and the Narmada case, in which the Indian Supreme Court reviewed the legality of displacement of people in connection with the building of a dam in the river Narmada under the ILO Indigenous and Tribal Populations Convention 1957 (nr 107). This book primarily explores what it is that international law requires, expects, or aspires that domestic courts do, and against this backdrop of what international law requires it seeks to map patterns of domestic practice in the actual or possible application of international law, and to determine what such patterns mean for the protection of the rule of international law This book explores the way domestic courts contribute to the maintenance of theinternational of law by providing judicial control over the exercises of public powers that may conflict with international law. The main focus of the book will be on judicial control of exercise of public powers by states. Key cases that will be reviewed in this book, and that will provide empirical material for the main propositions, include Hamdan, in which the US Supreme Court reviewed detention by the United States of suspected terrorists against the 1949 Geneva Conventions; Adalah, in which the Supreme Court of Israel held that the use of local residents by Israeli soldiers in arresting a wanted terrorist is unlawful under international law, and the Narmada case, in which the Indian Supreme Court reviewed the legality of displacement of people in connection with the building of a dam in the river Narmada under the ILO Indigenous and Tribal Populations Convention 1957 (nr 107). This book explores what it is that international law requires, expects, or aspires that domestic courts do. Against this backdrop it maps patterns of domestic practice in the actual or possible application of international law and determines what such patterns mean for the protection of the international rule of law. This Text Explores How Domestic Courts Contribute To The Maintenance Of The Rule Of International Law By Providing Judicial Control Over The Exercises Of Public Powers That May Conflict With International Law, Focusing Mainly On Judicial Control Of Exercise Of Public Powers By States. Introduction -- Jurisdiction -- Independence -- Applicable Law -- Standing -- Direct Effect -- Consistent Interpretation -- Reparation -- Fragmentation -- Authority -- Supremacy Restrained -- Concluding Remarks : Bringing Together The International And The National Rule Of Law. André Nollkaemper. Includes Bibliographical References (p. [305]-329) And Index. This book explores how domestic courts contribute to the maintenance of the rule of international law by providing judicial control over the exercises of public powers that may conflict with international law, focusing mainly on judicial control of exercise of public powers by states.