The Independence of the Domestic Judiciary in International Law

Finnish Yearbook of International Law, Vol. 17, 2006

45 Pages Posted: 13 Aug 2008 Last revised: 28 Apr 2011

See all articles by Andre Nollkaemper

Andre Nollkaemper

University of Amsterdam - Amsterdam Center for International Law

Date Written: August, 11 2008

Abstract

International courts, such as the ICC, the ICTR and the ECHR, may be willing to entrust domestic courts to do what they would have done themselves, but only if and to the extent that such domestic courts are sufficiently insulated from pressures from the political branches of their state. If this condition is satisfied, they may be willing to accept the outcome of domestic litigation as authoritative. The principle of independence thus may function as a rule of recognition in international law. This article explores if and under what conditions international law indeed can rely on the principle of independence as a criterion for distinguishing between domestic judicial decisions that the international legal order can defer to as authoritative settlements of international claims, on the one hand, and those decisions that are too nationalistic of to which it cannot defer because they are too much tied to the domestic legal order.

Keywords: international law, international courts, international tribunals, domestic court, independence

JEL Classification: K33

Suggested Citation

Nollkaemper, Andre, The Independence of the Domestic Judiciary in International Law (August, 11 2008). Finnish Yearbook of International Law, Vol. 17, 2006, Available at SSRN: https://ssrn.com/abstract=1217863

Andre Nollkaemper (Contact Author)

University of Amsterdam - Amsterdam Center for International Law ( email )

P.O. Box 1030
Amsterdam, 1000 BA
Netherlands

HOME PAGE: http://home.medewerker.uva.nl/p.a.nollkaemper/

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