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International law before national courts: Some problems from a common law perspective
... Mendelson, M. (2004), 'The effect of customary international law on domestic law: an overview', 4 Non-State Actors and Int. L. 75-85; Boyle, a. (2004), 'International law before national courts: Some problems from a common law perspective', 4 Non-State Actors and Int. L. 59-64; Kundmueller, M. (2002), 'The application of customary international law in u.S. courts: custom, convention or pseudo-legislation?', 28 J. Legis. ...
Foucault's challenging view of power and knowledge as the basis for interpreting the international system forms the central themes of this book. As the application of international law expands and develops this book considers how Foucault's approach may create a viable framework that is not beset by ontological issues. With International law essentially stuck within an older framework of outmoded statist approaches, and overly broad understanding of the significance of external actors such as international organizations; current interpretations are either rooted in a narrow attempt to demonstrate a functioning normative structure or interpret developments as reflective of some emerging and somewhat unwieldy ethical order. This book therefore aims to ameliorate the approaches of a number of different ‘schools’ within the disciplines of international law and international relations, without being wedded to a single concept. Current scholarship in international law tends to favour an unresolved critique, a utopian vision, or to refer to other disciplines like international relations without fully explaining the significance or importance of taking such a step. This book analyses a variety of problems and issues that have surfaced within the international system and provides a framework for consideration of these issues, with a view towards accounting for ongoing developments in the international arena.
Recipient of the Walther Hug Prize 2021 (prize awarded to the authors of the best PhDs in law in Switzerland in the corresponding year).
Reviews:
- C. Collin, in (2019) 65 Annuaire français de droit international 790, available at <www.persee.fr/issue/afdi_0066-3085_2019_num_65_1>
- R. Cueni, in (2020) sui generis, available at <sui-generis.ch/article/view/sg.135>
- A. Facchinetti, in (2021) Canadian Yearbook of International Law = Annuaire canadien de droit international
- C. Ryngaert, in (2021) 34:1 Leiden Journal of International Law 279-282
- A.-J. Saiger, in (2020) 80:3 Heidelberg Journal of International Law = Zeitschrift für ausländisches Öffentliches Recht und Völkerrecht 749-754
- M. Seiler, in (2021) 2 Schweizerische Richterzeitung ‘Justice – Justiz – Giustizia’
- P. Rossi, in (2021) International Journal of Constitutional Law
Based on analysis of a large number of recent domestic court cases on matters of customary international law (2000–2014), this article demonstrates that, rather similar to the International Court of Justice, domestic courts do not normally identify customary norms of customary international law on the basis of the textbook method of ascertaining a general practice accepted as law. Rather, they tend to outsource the determination of custom to treaties, non-binding documents, doctrine or international judicial practice. Sometimes, it appears that domestic courts simply assert, without citing persuasive practice authority, the existence of a customary norm. In rare cases, however, domestic courts do engage in extensive analysis.
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