Comparative International Law? The Role of National Courts in Creating and Enforcing International Law
International & Comparative Law Quarterly, Vol. 60, No. 57, 2011
36 Pages Posted: 22 Apr 2011 Last revised: 22 May 2017
Date Written: November 9, 2010
Academics, practitioners and international and national courts are increasingly seeking to identify and interpret international law by engaging in comparative analyses of various domestic court decisions. This emerging phenomenon, which I term ‘comparative international law,’ loosely fuses international law (as a matter of substance) with comparative law (as a matter of process). However, this comparative process is seriously complicated by the ambiguous role that national court decisions play under the international law doctrine of sources, pursuant to which they provide evidence of the practice of the forum state as well as being a subsidiary means for determining international law. This article analyzes these dual, and sometimes conflicting, roles of national courts and the impact of this duality on the comparative international law process.
Keywords: International Law, Comparative Law, Comparative International Law, Domestic Courts, National Courts, Creation, Enforcement, Dual Roles, Duality, Sources, State Practice, Subsidiary Means, Jones, Ferrini, Pinochet, Abbott, Olympic Airways, Scalia, Treaty Interpretation, Custom
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