The Rule of Law at the National and International Levels: Contestations and Deference

Description

This book aims to enhance understanding of the interactions between the international and national rule of law. It demonstrates that the international rule of law is not merely about ensuring national compliance with international law. International law and institutions (eg, international human rights treaty-monitoring bodies and human rights courts) respond to national contestations and show deference to the national rule of law. While this might come at the expense of the certainty of international law, it suggests that the international rule of law can allow for flexibility, national diversity and pluralism. The essays in this volume are set against the background of increasing conflict between international and national legal norms. Moreover the book shows that international law and institutions do not always command blind national obedience to international law, but incorporate a process of adjustment and deference to national law and policies that are protected by the rule of law at the national level. Volume 56 in the series Studies in International Law Preface and Acknowledgements Contents List of Contributors Introduction and Framework Introduction I.
Background: Rule of Law Dynamics II.
Theme of the Present Volume III.
Roadmap 1.
The Interfaces Between the National
and International Rule of Law:
A Framework Paper I.
Introduction II.
The International Rule of Law III.
National Reception of the International Rule of Law IV.
Characterising the Points of Connection between
the National and International Rule of Law V.
International Reception of the National Rule of Law VI. Conclusion: Towards Theoretical and Normative Appraisal Part I:
National Contestations in the CriticalRevision of the InternationalRule of Law 2.
Judicial Strategies and their Impact on the Development of the International Rule of Law I.
Introduction II. Domestic Courts'
Dilemma with Regard to the Rule of Law III.
'Strong' Review by Domestic Courts IV.
'Weak' Review by Domestic Courts V.
Conclusion 3.
The Development of the Immunities of International Organisations in Response to Domestic Contestations I.
Introduction II.
The Creeping Immunities of International Organisations III.
Contestations by Domestic Courts IV.
Reception in International Law V.
Sketching a Normative Framework for Interaction
between Domestic Courts and International Institutions VI.
Conclusion 4.
Domestic Review of Treaty-Based International Investment Awards: Effects of the Metalclad Judgment of the British Columbia Supreme Court I.
Introduction II.
The Metalclad Case III. Effects of the British Columbia Court's
Judgment on Subsequent NAFTA Chapter 11 Arbitration IV. Effects of the British Columbia Court's
Judgment upon Subsequent Non-NAFTA Cases V.
Conclusion 5.
National Contestation of International Investment Law and the International Rule of Law I.
Introduction II.
International Investment Law and the
International Rule of Law III.
National Contestation IV.
International Impact of National Contestations V.
Conclusion 6.
Domestic Non-Judicial Institutions in the Development of the International Rule of Law I.
Introduction II.
Non-Judicial Institutions in Regulatory International Law III.
Non-Judicial Institutions as Promoters of Accountability IV.
Domestic Non-Judicial Institutions as Models for Global Regulatory Governance V. Domestic Non-Judicial Institutions as International Law-Makers VI.
Conclusion: The International Rule of Law
beyond Compliance 7.
Interactions Between Domestic Social Norms and International Law over Trade Dispute Resolution I.
Introduction II.
Extant Literature on the WTO DSM III.
A New, Norm-Based Approach IV.
Empirical Case Studies V.
Conclusion Part II.
International Deference to the NationalLegal Order 8. The Rule of Law
imensions of Dialogues Betwe en National Courts and Strasbourg I.
Introduction II. Transjudicial Dialogue III.
Transjudicial Dialogues in the ECHR IV.
Conclusion: The Rule of Law Dimensions
of Transjudicial Dialogues 9.
Three Interpretive Constraints
on the European Court of
Human Rights I.
Introduction II.
The Doctrines Constraining the ECtHR III. Protecting the Court'S
Normative Legitimacy IV.
Striving to Reach Good Results V.
Conclusion 10.
Human Rights, the Margin of Appreciation, and the International Rule of Law I.
Introduction II.
Prefatory Remarks about the Rule of Law
and the International Rule of Law III.
The Margin of Appreciation IV.
The Margin of Appreciation and the
International Rule of Law V.
Conclusion 11.
Subsidiarity in the Practice of International Courts I.
Introduction II.
A Historical Overview of Subsidiarity III. Preserving a State's
Competence IV. Shifting Competence to International Courts V.
Normative Values of Subsidiarity VI.
Conclusion 12.
Revisiting the Reservations Dialogue: Negotiating Diversity while Preserving Universality Through Human Rights Law I.
Introduction II.
The Relationship between the Rule of Law Concept,
Human Rights, and Universality III.
The Reservations Regime and the Reservations Dialogue IV.
Re-imagining the Reservations Dialogue V.
The Reservations Dialogue as an Interface between
the Domestic and the International Rule of Law VI.
Conclusions 13.
Universality, Diversity, and Legal Certainty: Cultural Diversity in the Dialogue Between the CEDAW and States Parties I.
Introduction II.
Two Conceptual Issues on Cultural Diversity
in International Human Rights Law III.
Cultural Diversity in the Implementation of the ICEDAW IV.
The Processes of Dialogue between the Committee
and States Parties V.
Concluding Remarks: Role of Dialogue in Mediating
Cultural Diversity and Legal Certainty 14.
Domestic Courts Under Scrutiny:
The Rule of Law as a
Standard (of Deference) in
Investor-State Arbitration I.
Introduction II. The Concept 'Rule of Law'
and the Role of Domestic Courts III.
Assessing Domestic Court Proceedings through
the Lens of Investment Treaty Standards IV.
The Role of Domestic Law Criteria when Assessing
Domestic Court Proceedings V.
Concluding Observations 15. The Rule of Law at the National and International Levels in Post-Conflict Peace Agreements I.
Introduction II.
Peace Agreements as Constitutions III. Constitutional Peace Agreements as 'Hybrid'
Instruments IV.
Dialogue and Deference in Constitutional
Peace Agreements V.
Conclusion 16.
The Rule of Law and the Division of Labour Between National and International Law: The Case of International Energy Relations I.
Introduction II.
The Need for New Theories to Conceptualise the Relations between National and International Energy Law III.
The Division of Labour between National
and International Energy Law IV.
Interfaces Structuring the Division of Labour V.
Conclusion: The Rule of Law as Interface between
International and National Law Conclusion 17.
The International Rule of Law in the Cycle of Contestations and Deference I.
National Contestations II.
International Deference III.
Problems of Uncertainty and Particularity IV.
The International Rule of Law beyond Compliance Index