International Courts as Inter-Legality Hubs

Jan Klabbers & Gianluigi Palombella, The Challenge of Inter-legality, Cambridge: Cambridge University Press, 2019, pp. 319-338

Hebrew University of Jerusalem Legal Research Paper No. 20-23

27 Pages Posted: 9 Jul 2020 Last revised: 14 Sep 2020

See all articles by Yuval Shany

Yuval Shany

Hebrew University of Jerusalem - Faculty of Law and Institute of Criminology; Israel Democracy Institute

Date Written: August 16, 2018

Abstract

The two claims I develop in this paper are as follows: (1) Up until now, the engagement of international courts and tribunals with the concept of inter-legality (involving an acknowledgment of the simultaneously binding nature of competing normative frameworks) has often been superficial. Although courts found pragmatic ways to circumvent most of the practical challenges posed by inter-legality, for example, by foregrounding or backgrounding the jurisdictional and substantive aspects of specific regulatory frameworks, they have not fully come to terms with the deep implications of inter-legality for the rule of law in international life; and (2) the institutional configuration of international courts exacerbates some of the normative and practical challenges of inter-legality. This is because international courts adhere to an idiosyncratic set of interests, which further complicates the relations between the competing regulatory frameworks. For example, international courts typically have an interest in maintaining their own judicial power, legitimacy and effectiveness, and this interest often translates into claims of authority across legal regimes and across the national/international divide, which induce them to prioritize certain legal frameworks over others. Courts also sometime ‘pull’ the jurisdictional and substantive norms they apply towards their professional comfort zones, affecting thereby their choices regarding the regulation of situations of inter-legality. The relative power and institutional agendas of international courts therefore influences their engagement with the concept of inter-legality and complicates our ability to isolate principled normative considerations about how to bridge over multiple regulatory frameworks from institutional considerations.

The first part of this chapter (section 2) discusses my first claim concerning international courts’ ability to avoid overt jurisdictional clashes and inconsistent rulings through a variety of legal interpretation techniques, which might nonetheless fail to seize the inter-legality ‘bull’ by its ‘horns’. For example, conflict avoidance techniques resorted to by international courts and tribunals leave in place much of the tensions and inconsistencies attendant to the competing regulatory frameworks. The second part of the chapter (section 3) illustrates the ways in which the particular institutional and ideological agendas of international courts might influence the manner in which they deal with situations of inter-legality, using case studies from the field of international human rights law involving interaction with other bodies of law. Section 4 concludes.

Keywords: International courts, jurisdiction, competing norms, judicial policy, interpretation, conflict of norms, inter-legality

JEL Classification: K33

Suggested Citation

Shany, Yuval, International Courts as Inter-Legality Hubs (August 16, 2018). Jan Klabbers & Gianluigi Palombella, The Challenge of Inter-legality, Cambridge: Cambridge University Press, 2019, pp. 319-338, Hebrew University of Jerusalem Legal Research Paper No. 20-23, Available at SSRN: https://ssrn.com/abstract=3635684

Yuval Shany (Contact Author)

Hebrew University of Jerusalem - Faculty of Law and Institute of Criminology ( email )

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