Domestic Courts in International Law: The International Judicial Function of National Courts
37 Pages Posted: 12 Jun 2011 Last revised: 18 Apr 2015
Date Written: June 1, 2011
As the title suggests, this paper does not deal with 'international law in domestic courts' but rather with 'domestic courts in international law'. It seeks to ascertain whether domestic courts are assigned an international judicial function by international law, and whether and to what extent they are in fact assuming and exercising that function. The paper attempts to define the concept of an ‘international judicial function’ and argues that, because of the peculiar ‘directionality’ of a great many international obligations (which require implementation within the domestic jurisdiction), domestic courts are the first port of call and the last line of defense for the interpretation and application of international law. However, as organs of States, courts may engage the international responsibility of the State if their conduct results in the breach of an international obligation. This is why the exercise of the international judicial function of domestic courts is supervised by States, either through the submission of disputes to international courts, or, more usually, through decentralized reactions.
Keywords: international judicial function, domestic courts, national courts, incorporation, transformation, consistent interpretation, natural judge, immediate judge, subsidiarity, exhaustion of local remedies, inward-looking international obligations, judicial settlement of international disputes
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