Interfaces between International and National Legal Orders

Posted on Actualizado enn

An international seminar entitled “Interfaces between International and National Legal Orders: An International Rule of Law Perspective” was held on 14-15 March 2013 in Amsterdam. The seminar was organized by the Amsterdam Center for International Law (ACIL), where I am a researcher, and sponsored by the Hague Institute for the Internationalisation of Law (HiiL).

The seminar explored the evolving “interfaces” between international and national legal orders from the perspective of the international rule of law. The interfaces between international and national legal orders are the points where the actors, norms and procedures which form and maintain the two legal orders interact with one another. These interfaces have significantly evolved due to the extension of the subject matter of international law and its impact on domestic regulatory policies.

International legal scholarship has produced extensive studies to capture the inter-order interfaces primarily from the perspective of national rule of law. Much less recognized is the international perspective; namely, the impact of national law on the rule of law within the international legal order.

National Contestations & the International Rule of Law

The Seminar’s “international” angle was a response to the critical need to situate the national legal order, not merely as the venue for implementation, but as the agent for the critical revision of the international rule of law and of the universality of policies behind it.

In the Seminar, Veronika Fikfak (University of Cambridge) presented the “strong” and “weak” review techniques employed by domestic courts, whereby the courts delicately elicit dialogues and responses from international institutions. Domestic courts’ contestation and international courts’ responses have been incrementally formalized and methodized, as Birgit Peters (University of Bremen) demonstrated within the context of the European Convention on Human Rights.

Mateja Steinbrück Platiše (Max Planck Institute for Comparative Public Law and International Law) eloquently argued that the challenges raised by domestic courts to the immunities of international organizations have incrementally invited  jurisprudential and political transitions on the part of international courts and organizations. The space for domestic reinterpretation and innovation was arguably preserved by international law, as Ingrid Wuerth (Vanderbilt University School of Law) highlighted within the context of the international law of jurisdictional immunities. “Judicial” contestations may need to be understood against broader political resistance against international law and institutions, as Prabhash Ranjan (National Law University) articulated with respect to the backlash against bilateral investment treaties (BITs).

The Negotiation of Diversity and Universality

The role of national contestation in the development of the international rule of law gives rise to the further question as to a possible tension between the universality and certainty of the international rule of law on the one hand, and the diversity of national law on the other.

In the Seminar, Andrew Legg (Essex Court Chambers) demonstrated that the margin of appreciation as an adjudicatory technique allows for the coexistence of the universality of international human rights law and a measure of diversity. Jonathan Ketcheson (Associate, Hogan Lowells) argued that international courts and tribunals often adopt deferential review with respect to the decisions of domestic courts, and thereby respect the legitimacy and expertise possessed by national courts.

The treatment of national practices before international courts further has feedback on the domestic legal order. Shai Dothan (Hebrew University of Jerusalem) demonstrated that the doctrine of “emerging consensus” adopted by the European Court of Human Rights may reduce the risk of uninformed and non-independent decisions by domestic courts. The fact that the interactions often run both ways was further highlighted by Ekaterina Yahyaoui Krivenko (Irish Centre for Human Rights). Yahyaoui reinterpreted the reservations regime as the process for constant negotiation and revision with respect to the terms of reservations to human rights treaties and, more broadly, the standards of the international rule of law.

International law not only allows diversity but also obligates diversity. Yvonne Donders (University of Amsterdam) highlighted that cultural rights entail a positive obligation to actively protect diversity, and that cultural diversity does not undermine the universality of the international rule of law. At the same time, there are always social bases that resist international law and institutions’ claim of universality. Ji Li (Rutgers Law School) convincingly presented on the underestimated link between social norms and states’ different approaches to the use of international dispute settlements bodies. The absorption of diverse practices into the interpretation of international rules also encounters methodological challenges. Shotaro Hamamoto (Kyoto University) highlighted the limits of comparative public law approaches to the interpretation of “fair and equitable treatment”.

The Reconsidering the Nature of the Interfaces

The negotiation of universality and diversity further brings us to the question of whether and how our understanding about the interfaces based upon confrontation and hierarchy ought to be revised.

In the Seminar, Rene Urueña (Universidad de Los Andes) argued that the court-centered understanding of interfaces must be revised. To highlight the presence of non-judicial institutions in the development of the international rule of law often proves the limited use of traditional theories, such as supremacy and direct effect in accounting for the interactions between national and international law. Jennifer Easterday (University of Leiden) demonstrated peace agreements are “hybrid” instruments that bridge the international and domestic rule of law. Their hybridity in turn situates peace agreements as potential tools for facilitating the accountability of both domestic organs and international organizations. As Stephan Schill (Max Planck Institute for Comparative Public Law and International Law) highlighted, national and international law should be captured not only from a confrontational angle; they often serve to achieve common goods.

Overall, the Seminar unveiled the delicate interplay between the actors, norms, and procedures at the interfaces between international and national legal orders. The subject-matter overlap between national and international law invites domestic contestations against international law and institutions. At the same time, it solicits self-reflection on the part of international courts and political organs, by signaling deficiencies of international law and the international rule of law. The interfaces between two legal orders provide the space for the negotiation between universal standards and diversity, and further revise the theoretical accounts on how international and national legal orders interact and continue to develop the international rule of law.

Source: International Law Grrls

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