International Law in Domestic Courts: A Conflict of Laws Approach

American Society of International Law Proceedings, Vol. 103, 2009

Duke Law School Public Law & Legal Theory Paper No. 253

Cornell Legal Studies Research Paper No. 09-016

11 Pages Posted: 3 Jun 2009

See all articles by Karen Knop

Karen Knop

University of Toronto - Faculty of Law

Ralf Michaels

Max Planck Institute for Comparative and International Private Law

Annelise Riles

Northwestern Law School; Buffett Institute of Global Affairs

Date Written: April 23, 2009

Abstract

The relationship between international law and domestic law is rarely understood as a conflict of laws. Understanding it in this way opens up a parallel with the field of conflict of laws: the field for which the relationship between legal systems, especially the role of another system's jurisdiction, laws, and judgments vis-à-vis the domestic legal system, are exactly the bread-and-butter issues. We argue for such an approach to international law in domestic courts: an approach that we elaborate as "theory through technique."

In our view, conflicts should be seen broadly as the discipline that developed to deal with conflicts between laws, without necessarily being committed to any one method or policy. Surprisingly, we demonstrate that it is precisely the seemingly negative features of conflicts - the field's high degree of technicality disparaged as a "conflict-of-laws machine" and the multitude of theories famously deemed a "dismal swamp" - that figure among the advantages of a conflict-of-laws approach to international law in domestic courts.

A conflict-of-laws approach offers ways to respect the nature of international law as law, without simplifying that nature by characterizing it exactly as domestic law. In addition, seeing the parallel with conflict of laws brings a wealth of experience that can enrich and refine the debate on international law in domestic courts. Finally, the parallel with conflicts changes international law in domestic courts from a specific problem addressed by international and constitutional lawyers into a general problem of relativism - which, we argue, conflict of laws is uniquely positioned to address.

Keywords: International law and domestic courts, Conflict of Laws, Private International Law, International Law

Suggested Citation

Knop, Karen and Michaels, Ralf and Riles, Annelise and Riles, Annelise, International Law in Domestic Courts: A Conflict of Laws Approach (April 23, 2009). American Society of International Law Proceedings, Vol. 103, 2009, Duke Law School Public Law & Legal Theory Paper No. 253, Cornell Legal Studies Research Paper No. 09-016, Available at SSRN: https://ssrn.com/abstract=1413189

Karen Knop

University of Toronto - Faculty of Law ( email )

84 Queen's Park
Toronto, Ontario M5S 2C5
Canada
4169784035 (Phone)
4169787899 (Fax)

Ralf Michaels (Contact Author)

Max Planck Institute for Comparative and International Private Law ( email )

Mittelweg 187
Hamburg, D-20148
Germany

Annelise Riles

Northwestern Law School ( email )

375 E. Chicago Ave
Chicago, IL 60611
United States
(312) 503-1018 (Phone)
(312) 988-6579 (Fax)

Buffett Institute of Global Affairs ( email )

1902 Sheridan Road
Evanston, IL
United States

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