International Law in Domestic Courts – sticky or not?

by Thammy Evans · March 15, 2012.

Last week I attended the book-launch* of International Law in Domestic Courts: Rule of Law Reform in Post-Conflict States, by Edda Kristjánsdóttir, André Nollkaemper and Cedric Ryngaert (eds). Whilst you can’t judge a book by its cover (nor its title) alone, this book appears to be prescient and timely in light of the Arab Spring and an increasing trend for the application of international law in domestic courts.  The editors had set the various authors six questions[1], the answers to only a couple of which I’ll delve into here.

The research for the book took place before the uprisings in North Africa started to unfold, but this did not stop the audience asking the editors how the findings from the book might shape the future of justice transformation in those countries. Strangely enough, the answer from the editors was not dissimilar to the one they gave me when I asked how, as a result of their research, they would prioritise the implementation of international law in domestic courts in post-conflict countries.

They answered:

  1. Firstly improve domestic capacity, i.e. build court rooms suitable for the job, train lawyers, improve witness protection, etc;
  2. Then apply domestic law (preferably as informed by international law);
  3. Finally, if international law does not enjoy the priority that some might want, give time for a dialogue on civil and political rights.

This answer affirmed a lot of how security and justice sector reform (SJSR) is currently done and I found the second point particularly interesting in this regard. For it implies that in many ways there is often nothing wrong with domestic law. This adds credence to the first good-practice principle of SSR—local ownership—as well as to last year’s New Deal endorsement in Busan by the G7+ to use local systems. Furthermore, the point implies that a lot can be done by focusing on the second good-practice principle of SSR—ensuring accountability and effectiveness.

More specifically for the Arab Spring, the panel of editors and authors advised moving slowly in rule-of-law reform, and moving from the bottom-up. Again this emphasizes local ownership and the shift in the thinking of the development community[2] towards ‘best fit’ rather than ‘best practice’. Echoing my last blog, Back to the Roots, a participatory approach in any needs-analysis of SJSR seems fundamental to ensuring a holistic and sustainable vision. 

A whole host of issues were raised at the launch, including: how valid the findings were if there was no control group (for instance how would a study looking at Switzerland, America and Italy fare under the same set of questions?); the need for flexibility in the definition of rule of law; and what was the legacy of the ‘elephant in the room’ i.e. of international criminal tribunals in Yugoslavia and Rwanda.

Although the editors were quick to remind the audience at the launch that the book is an empirical study recording what has happened and not a normative study attempting to present recommendations or best practice, the book does seem to beg an answer to the fundamental premise of the book, which is can a gap in domestic rule-of-law in post-conflict countries be bridged by strengthening the application of international law? The book answers that international law is increasingly being drawn on to fill this gap, but the conditions enabling international law to stick may be more elusive. How international law can best be brought in to fill gaps in rule-of-law, and at what point or ‘constitutional moment’ this is best done, remain outside the scope of the book.

The book covered examples from Afghanistan, Bosnia, East Timor, Iraq, Nepal, Rwanda, Serbia, South Africa, and various post-Soviet Union states, making it quite wide-ranging for its 336 pages. Currently only available in hardback for US$111.00 directly from the publisher Intersentia, you might want to scan the free downloadable abstract first.

* The launch was held by the Geneva Academy of International Humanitarian and Human Rights Law. A programme of their events, held at the Villa Moynier, 120B Rue de Lausanne, can be found online.

[1] 

  1. What are the types of ‘constitutional moments’ that allow for an increased role of national courts in the application of international law?
  2. What is the form and substance of domestic courts’ empowerment to apply international law?
  3. What is the scope of the increasing role of international law to be applied in domestic courts?
  4. What is the role of the various actors involved in importing international law, bottom-up to top-down?
  5. How did the courts contextualize international legal norms?
  6. What is the legacy of international law implementation by domestic courts in post-conflict or transitional situations?

[2] As reflected in the World Bank’s 2011 World Development Report, see INPROL’s facilitated dialogue for more.