Abstract
The thesis is concerned with the role and position of domestic courts in the international legal order. In this context, it does not focus on the traditional discussion of the relationship between domestic and international law but instead brings to the fore the various relationships domestic courts form when dealing with international law, namely relationships they construct with their executive and legislature, along with those they form with other states and with international institutions.
The thesis argues that according to an ideal internationalist view domestic courts are key actors in filling the voids in the international legal order and ensuring its effectiveness and stability. This means that courts are often expected to strengthen international law qua law, applying it even against a reluctant executive or a legislature that has failed to incorporate it into domestic. In addition, domestic courts as agents of the international legal order should provide support to international institutions, acting in their place as a forum when these institutions are unable to act, and as an enforcement mechanism when decisions of these institutions necessitate domestic implementation.
In order to understand whether domestic courts share this view of their role, the book analyses domestic courts’ responses to arguments with which international scholars legitimate their ideal views of the role of domestic courts. The thesis investigates firstly, whether domestic courts as organs of state feel bound by international law and secondly, whether courts consider themselves agents of the international legal order and as such required to support the decisions of international institutions by recognising their expertise and primacy.
The disparity uncovered between the internationalist view and the self-perception of domestic courts reveals domestic courts’ influence on relationships in the international legal order as well as their power to redesign the set-up and the functioning of this order.
The thesis argues that according to an ideal internationalist view domestic courts are key actors in filling the voids in the international legal order and ensuring its effectiveness and stability. This means that courts are often expected to strengthen international law qua law, applying it even against a reluctant executive or a legislature that has failed to incorporate it into domestic. In addition, domestic courts as agents of the international legal order should provide support to international institutions, acting in their place as a forum when these institutions are unable to act, and as an enforcement mechanism when decisions of these institutions necessitate domestic implementation.
In order to understand whether domestic courts share this view of their role, the book analyses domestic courts’ responses to arguments with which international scholars legitimate their ideal views of the role of domestic courts. The thesis investigates firstly, whether domestic courts as organs of state feel bound by international law and secondly, whether courts consider themselves agents of the international legal order and as such required to support the decisions of international institutions by recognising their expertise and primacy.
The disparity uncovered between the internationalist view and the self-perception of domestic courts reveals domestic courts’ influence on relationships in the international legal order as well as their power to redesign the set-up and the functioning of this order.
| Original language | English |
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| Number of pages | 313 |
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| Publication status | Published - 2012 |