Another Brick in the Wall -- Reflexivity of the Sources and the Enforcement of International Law: Domestic Courts as Sources and Enforcers
THE OXFORD HANDBOOK ON THE SOURCES OF INTERNATIONAL LAW, pp. 812-832, Samantha Besson and Jean d'Aspremont, eds, Oxford University Press, 2017
29 Pages Posted: 27 Feb 2017 Last revised: 17 Nov 2017
Date Written: February 23, 2017
What is the role of domestic courts in the ideal continuum commencing from sources (where the law begins its life) and ultimately ending at the enforcement of the law in a specific case? Where, if anywhere, do they fit in this continuum? Put differently, are domestic court decisions a cause (source) or an effect (enforcement) of international law? What we argue in this essay is that enforcement of international law is reflexive, rather than reactive. Reflexitvity is defined as a circular relationship between cause and effect, and there is indeed such a circular relationship — a ‘feedback loop’ — between the sources of international law and its enforcement: neither of the two can be finally identified as the ultimate cause or the ultimate effect. There is thus no real continuum, with domestic courts occupying this or that position on it. Rather, domestic court decisions are both part of the cause (sources) and of the effect (enforcement) of international law. The enforcement of a rule of law in a specific case constitutes, in accordance with the sources doctrine, yet another brick in the wall of that same ever-changing rule. And given the increasingly important position that domestic courts are assuming in the enforcement of international law, they become ever more important agents of development of that law, reinforcing their position in the doctrine of sources.
Keywords: sources of international law, enforcement of international law, compliance, implementation, enforcement, domestic courts, judicial application of international law, development of international law
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