International Law and Domestic Law

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The relationship between domestic and international courts: the need to incorporate judicial politics into the analysis

In the latest issue of EJIL, Raffaela Kunz carefully examines the complex relationship between domestic and international courts in human rights adjudication. Amidst the well-known backlash from governments, she draws attention to the growing resistance of domestic high courts to decisions by their international counterparts as well as the main features of this resistance. Kunz traces how international human rights courts have developed tools to strengthen the impact of their decisions “on the ground”. She further examines how domestic courts perceive their role as “compliance partners” and how the greater interaction between them and international courts has increased the possibility of collaboration, yet also the likelihood of tensions and conflicts with their international counterparts. Domestic courts, she suggests, ultimately act as “gatekeepers” modulating the effect of international decisions over the domestic legal system.

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The Duties of a Government International Legal Adviser

Although we may not like to be reminded of it, international lawyers start out as domestic lawyers. When being admitted to practice in a particular jurisdiction, we are taught that lawyers owe duties not only to clients, but also to domestic courts and the interests of justice (‘institutional duties’). These institutional duties are hierarchically superior: faced with a…

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The Dutch Prosecution’s Opening Statement in the MH-17 Trial: What Lies Beyond the Horizon?

On 9 March 2020, the Dutch Prosecution made its opening statement in the much anticipated MH-17 Trial, dealing with the shooting down of Malaysia Airlines flight MH-17 over eastern Ukraine and the deaths of its 298 passengers. In doing so, the Prosecutor Ward Ferdinandusse shed light on some of the legal questions that arose…

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Territory as a Victim of Colombia’s War

In two recent resolutions, Colombia’s peace jurisdiction (Jurisdicción Especial para la Paz, SJP) resolved that the Katsa Su and the Cxhab Wala Kile, the territories of the indigenous Awá and Nasa peoples respectively, are victims of Colombia’s 50-year civil war. The two territories thus have the same rights that accrue to all accredited victims under the…

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Quo Vadis? The Future of International Dispute Settlement through the Art of Law in the International Community

Reading Professor O'Connell's latest opus, The Art of Law in the International Community, one cannot help but see its (deliberate or unintended?) twinning with Hersch Lauterpacht's The Function of Law in the International Community. O'Connell argues for a reimagination of modern international law through three propositions, which respond to and further engage Lauterpacht's  limitations on the…

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