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International Law in Domestic Courts: A Conflict of Laws Approach


Karen Knop


University of Toronto - Faculty of Law

Ralf Michaels


Duke University - School of Law

Annelise Riles


Cornell University - Law School

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

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.

Number of Pages in PDF File: 11

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

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Date posted: June 3, 2009  

Suggested Citation

Knop, Karen and Michaels, Ralf 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: http://ssrn.com/abstract=1413189

Contact Information

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)
Duke University - School of Law ( email )
Box 90360
Duke School of Law
Durham, NC 27708
United States
Annelise Riles
Cornell University - Law School ( email )
524 College Ave
Myron Taylor Hall
Ithaca, NY 14853
United States
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