Domestic Courts As Agents of Development of the International Law of Jurisdiction

Abstract

It might be expected that domestic courts would play a significant role as agents of development of the international law of jurisdiction, given that the international rules on jurisdiction relate in large measure to the extent of the authority to which a state may lay claim through its courts. The reality, however, is more complex. While domestic courts have occasion to pronounce on the lawful jurisdiction of states, this is infrequent and, where the international rules in question are more than mundane, what these court have to say is not always reliable. As it is, of itself a domestic judicial decision reflects the view, in the final analysis, of a single state alone. In this light, the more significant role that domestic judicial decisions and, indeed, domestic judicial proceedings can play as regards the international law of jurisdiction is as triggers for reactive practice on the part of a greater array of states, practice which either clarifies and consolidates the existing law or catalyses its alteration. In a not dissimilar vein, domestic court decisions and proceedings can trigger litigation in an international court, the judgment of which may serve to settle or further complicate contested points of the international law of jurisdiction. Finally, it may be, particularly in the common law world, that the decisions of domestic courts are looked to not as mere state practice, like any other, on the part of the forum state but specifically as foreign judicial decisions, and decisions of persuasive authority, as to the existence or content of an international jurisdictional rule. In this last context, domestic judicial decisions have the potential to exert a greater influence than other forms of state practice on the development of the international law of jurisdiction.

Keywords: jurisdiction, domestic courts

JEL Classification: K33