Introduction: domestic courts as agents of development of international law

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Tzanakopoulos, A. ; Tams, C.J. (2013)

This introductory paper to the symposium hosted by the Leiden Journal of International Law, and edited by the authors, deals with the function of domestic courts as agents for the development of international law. The paper ‘sets the scene’ for the contributions to the symposium, which seek to trace the impact of domestic courts in the development of canonical areas of international law, such as jurisdiction, immunity, state responsibility, the law of international organizations/human rights, and the law of armed conflict/conduct of hostilities. It discusses the formal quality and actual influence of domestic-court decisions on the development of international-law, and introduces the concept of ‘agents’ of international-law development. This is the analytical perspective that the contributions to the symposium adopt.
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    21 references, page 1 of 3

    10 See further A. Tzanakopoulos, 'Domestic Courts in International Law: The International Judicial Function of National Courts', (2011) 34 Loyola of LA Int'l & Comp L Rev 133, 138-40, with further references; and cf. A. Tzanakopoulos, 'Preliminary Report of the ILA Study Group on Principles on the Engagement of Domestic Courts with International Law', in International Law Association, Report of the Seventy-Fifth Conference Held in Sofia 26-30 August 2012 (forthcoming), para. 12.

    11 See generally A.-M. Slaughter and W. Burke-White, 'The Future of International Law Is Domestic (or, The European Way of Law)', (2006) 47 Harvard Int'l LJ 327.

    12 As, for example, is roughly the case in the United Kingdom.

    13 See generally E. Benvenisti, 'Judicial Misgivings Regarding the Application of International Law: An Analysis of the Attitudes of National Courts', (1993) 4 EJIL 159.

    14 See Tzanakopoulos, 'Domestic Courts in International Law', supra note 10, 155-8, and 'Preliminary Report of the ILA Study Group', supra note 10, paras. 21-23.

    15 See A. Nollkaemper, 'Internationally Wrongful Acts in Domestic Courts', (2007) 101 AJIL 760, 761-2.

    16 On consubstantial rules see further Tzanakopoulos, 'Domestic Courts in International Law', supra note 10, 143-4 and 158, and 'Preliminary Report of the ILA Study Group', supra note 10, para. 29.

    17 Roberts, supra note 1, 74-6; cf. K. Knop, 'Here and There: International Law in Domestic Courts', (2000) 32 NYU JILP 501, 505-6; R. van Alebeek in this symposium.

    18 See notably arguments made in the contributions by R. O'Keefe and S. Olleson in this symposium.

    19 See, e.g., the contribution by R. van Alebeek in this symposium; and see Lauterpacht, supra note 8, 75.

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