International Law through the National Prism: the Impact of Judicial Dialogue
How do national courts engage in the interpretation, application and development of international law through transnational judicial (‘court-to-court’) dialogue?
The project in a nutshell
This project will contribute to our understanding of how national courts engage in the interpretation, application and development of international law through transnational judicial (‘court-to-court’) dialogue.
The project is induced by the widespread exchange of views on the interpretation of international standards between states and regions. Domestic courts are at the heart of this development. They engage in ‘judicial dialogues’, by referring to decisions of international and foreign courts. Transnational judicial dialogues can strengthen the rule of law, allowing domestic courts to arrive at the best responses to shared problems and clarifying shared normative frameworks. The phenomenon of judicial dialogues raises several questions, however. Unless conducted in accordance with sound criteria, transnational dialogues could undermine the role of courts as guardians of the rule of law.
The project will provide a systematic empirical analysis of the extent of judicial dialogues on international law. It will uncover methodologies of courts, as well as their motivations to engage in such dialogues. It will identify ‘best practices’ for determining when and how domestic courts should rely on foreign and international interpretations. The project will provide critical information to scholars, practitioners and policymakers in the field of the rule of law and human rights.
The project is funded by the European Science Foundation (ESF) as a European Collaborative Research Project in the Social Sciences (ECRP).
The project is carried out by several country contributions and associated partners. It has an interdisciplinary character, involving legal, socio-legal, and political science analyses and making use of different sorts of sources, including empirical and secondary sources.
The project examines how international law can serve as a vehicle - or 'common language' - for transnational judicial dialogue in the interest of the rule of law. To do so, it consists of 2 groups of contributions.
The Project Leader (University of Amsterdam) as well as the University of Vienna and Humboldt University of Berlin will explore cross-cutting themes, including domestic court reponses to international organisations' compliance with international norms and the application by domestic courts of the rules of interpretation of international law.
A second group will examine dialogues between particular (groups) of states or courts. The interaction between national courts and the European Court of Human Rights, as well as judicial dialogues in Eastern Europe will be examined.
1. The legal status and effect of national court decisions in the international legal order
The increasing practice of national courts of applying international law raise the question whether the traditional principle that decisions of national courts are merely facts, accurately captures the legal role and relevance of national court decisions in the international legal order. In international investment arbitration, for instance, tribunals may be required to 'apply', rather than merely consider, national law in order to determine the parties’ rights and obligations pursuant to the pertinent national law, when determining whether the host State and respondent in the proceedings have violated expropriation or 'umbrella' clauses in international investment agreements. Considering that international courts and tribunals may thereby give effect to national court decisions in a way that go beyond the classical 'state practice' value, this contribution also explores the conditions under which decisions of national courts may or may not be considered as authoritative at the international level.
This sub project is carried out at the University of Amsterdam.
2. Responses to international organisations' compliance with international law
International organizations have been granted domestic legal personality as well as privileges and immunities which can shield them from domestic legal process. At the same time, their activities often concern the interests of third parties. In such cases, international organizations have increasingly become involved in litigation before domestic courts. The applicable law and the interpretation of the relevant instruments differs and has given rise to nuanced answers across countries. For example, domestic courts have adopted varying approaches to functional immunity and the need to guarantee the independence of international organizations while simultaneously securing their accountability vis-à-vis affected parties. Although domestic courts decide on these issues primarily on the basis of domestic law, which often incorporates international law, there is a strong indication that in their decision-making they are also influenced by the decisions and reasoning of courts from other countries. The existence, nature and extent of a possible 'transnational judicial dialogue' in this context is the central phenomenon to be analyzed by this country contribution.
This sub project is carried out at the University of Vienna.
3. Domestic courts and the interpretation of international law
The growing use of international law by domestic courts is usually seen as a positive development for the international rule of law. When domestic courts are faced with international issues, they do not, however, necessarily interpret international law according to the international rules on interpretation. These rules differ from domestic rules of statutory interpretation. Diverging interpretations may lead to a further fragmentation of the international legal order. In the context of the cooperative project on "International Law through the National Prism", this country contribution examines how domestic courts arrive at their interpretation of international law and to what extent they are informed by domestic traditions.
This sub project is carried out at the Humboldt University of Berlin.
4. Judicial dialogues in Eastern Europe
The contribution by Poland to the project is to conduct a comparative analysis of domestic jurisprudence in Eastern European countries on issues of public international law. The team of researchers will investigate how Polish domestic courts find themselves in the international context – how and when they use international law, and whether they engage in a ‘judicial dialogue’ with international and foreign courts. This practice will then be compared with the practice of Lithuania, Hungary, Russia, Ukraine and Czech Republic. A detailed questionnaire was prepared to ease and direct the work of the researchers from these countries. The conclusions of this research will be verified during a final workshop.
This sub project is carried out at the University of Lodz.
5. The interaction between national courts and the European Court of Human Rights
The principal objective of this sub project is to study the interaction between national courts and the European Court of Human Rights with a view to assess whether they are in a state of competition on the relative importance of the European Convention on Human Rights and the respective national orders, or that they interact in a constructive ('constitutional') way. Subsidiary objectives are to study the interaction in three different national jurisdictions and the response from the European Court.
This sub project is carried out at the University of Oslo.
Transnational Judicial Dialogue of Domestic Courts on International Organizations (23 April 2012)
The University of Vienna hosted an international conference on the ‘Transnational Judicial Dialogue of Domestic Courts on International Organizations’. Leading legal scholars from various regions of the world examined domestic court decisions concerning the domestic legal personality and the privileges and immunities of international organizations especially from the perspective of a possible transnational judicial ‘dialogue’.
Transnational Judicial Dialogue (21 & 22 June 2013)
The University of Oslo will host a conference on the theme 'Transnational Judicial Dialogue: Concept, Method, Extent and Effects'. The organizers now invite paper proposals related to the theme (deadline: 15 February 2013).
‘The legal status of decisions by human rights treaty bodies in national law’, with van Alebeek, R. in: Keller, H. & Ulfstein, G. (eds.), UN Human Rights Treaty Bodies. Law and Legitimacy, Cambridge: Cambridge University Press (2012): 356-413.
'The Role of National Courts in Inducing Compliance with International and European Law-A Comparison’, in: Cremona, M. (ed.), Compliance and the Enforcement of EU Law, Oxford, Oxford University Press,( 2012): 157-19.
Nollkaemper, P.A. & Zürn, M. & Peerenboom, R. (eds.)
Rule of Law Dynamics: in an Era of International and Transnational Governance, Cambridge: Cambridge University Press (2012)
Nollkaemper, P.A. & Fauchald, O.K. (eds.)
The Practice of International and National Courts and the (De-)Fragmentation of international Law,(Studies in International Law), Oxford and Portland, Oregon, Hart Publishing (2012)
Fauchald, O.K. & Nollkaemper, P.A.
'Introduction', in: Fauchald, O.K. & Nollkaemper, P.A. (eds.), The Practice of international and National Courts and the (De-)Fragmentation of international Law (Studies in International Law), Oxford and Portland: Hart Publishing (2012): 3-14.
Fauchald, O.K. & Nollkaemper, P.A.
'Conclusions', in: Fauchald, O.K. & Nollkaemper, P.A. (eds.), The Practice of international and National Courts and the (De-)Fragmentation of international Law (Studies in International Law), Oxford and Portland: Hart Publishing (2012): 343-367.
Zürn, M., Nollkaemper, P.A. & Peerenboom, R.
'Introduction: Rule of Law Dynamics in an Era of International and Transnational Governance', in: M. Zürn, M., Nollkaemper, P.A. & Peerenboom, R. (eds.), Rule of Law Dynamics: In an Era of International and Transnational Governance, Cambridge: Cambridge University Press (2012): 1-17.
Peerenboom, R., Zürn, M. & Nollkaemper, P.A.
'Conclusion: From Rule of Law Promotion to Rule of Law Dynamics', in: Zürn, M., Nollkaemper, P.A. & Peerenboom, R. (eds.), Rule of Law Dynamics: In an Era of International and Transnational Governance , Cambridge: Cambridge University Press (2012): 305-323.
In November 2012, an article on the project has been published by EU Research.
Project leader is Prof. André Nollkaemper.
Principal investigators are:
- Prof. August Reinisch, University of Vienna
- Prof. Georg Nolte, Humboldt University of Berlin
- Dr. Helmut Aust, Humboldt University of Berlin
- Prof. Geir Ulfstein, University of Oslo
- Prof. Anna Wyrozumska, University of Lodz
Additional participating researchers are:
- Hege Elisabeth Kjos, University of Amsterdam
- Alejandro Rodiles, Humboldt University of Berlin
- Peter Staubach, Humboldt University of Berlin
Associated partners are:
- Riccardo Pavoni, University of Siena
- Eyal Benvenisti, Tel Aviv University
- Juan Santos Vara, University of Salamanca