National Courts and Interpretative Approaches to International Law: The Case Against Convergence

INTERPRETATION OF INTERNATIONAL LAW BY DOMESTIC COURTS, Helmut Philip Aust and Georg Nolte, eds, Oxford University Press, Forthcoming

GlobalTrust Working Paper 8/2014

21 Pages Posted: 6 Oct 2014

See all articles by Olga Frishman

Olga Frishman

University of Haifa - Faculty of Law; Tel Aviv University - Buchmann Faculty of Law

Eyal Benvenisti

University of Cambridge - Lauterpacht Centre for International Law

Date Written: August 14, 2014

Abstract

Should national courts act as agents of the international community and promote a global rule of law based on a hierarchical structure which puts international tribunals – primarily the International Court of Justice – at its apex? For that purpose, must national courts abandon their current practices of divergent methods of interpretation and use the same rules of interpretation of international law that international courts apply? In this chapter we reject this “convergence thesis.” Even when taking only global interests into account, we argue that the convergence thesis is neither necessary nor sufficient to promote collective values; in fact it is counterproductive. Instead we outline a middle road for national courts to take: neither a solipsistic outlook that requires national courts to put national interests above all is appropriate, nor a cosmopolitan attitude that regards national courts as mere agents of the international legal system operating within states. Instead, we offer an approach that is informed by the vision of sovereignty as a trusteeship of humanity, which requires national courts to take global interests into account when interpreting international law. This view does not necessarily imply that national courts should reject international rules of interpretation, but it does imply that they should not aspire to mimic international courts.

Keywords: International law, Law of treaties, Interpretation, National courts, Fragmentation

JEL Classification: K33

Suggested Citation

Frishman, Olga and Benvenisti, Eyal, National Courts and Interpretative Approaches to International Law: The Case Against Convergence (August 14, 2014). INTERPRETATION OF INTERNATIONAL LAW BY DOMESTIC COURTS, Helmut Philip Aust and Georg Nolte, eds, Oxford University Press, Forthcoming . Available at SSRN: https://ssrn.com/abstract=2504988

Olga Frishman (Contact Author)

University of Haifa - Faculty of Law ( email )

Mount Carmel
Haifa, 31905
Israel

Tel Aviv University - Buchmann Faculty of Law ( email )

Ramat Aviv
Tel Aviv 69978, IL
Israel

Eyal Benvenisti

University of Cambridge - Lauterpacht Centre for International Law ( email )

10 West Road
Cambridge, CB3 9DZ
United Kingdom

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