International Law in Domestic Courts: A Conflict of Laws Approach

The relationship between international law and domestic law is rarely understood as a conflict of laws. Understanding it in this way opens up a parallel with the field of conflict of laws: the field for which the relationship between legal systems, especially the role of another system\u27s jurisdiction, laws, and judgments vis-à-vis the domestic legal system, are exactly the bread-and-butter issues. We argue for such an approach to international law in domestic courts: an approach that we elaborate as theory through technique. In our view, conflicts should be seen broadly as the discipline that developed to deal with conflicts between laws, without necessarily being committed to any one method or policy. Surprisingly, we demonstrate that it is precisely the seemingly negative features of conflicts - the field\u27s high degree of technicality disparaged as a conflict-of-laws machine and the multitude of theories famously deemed a dismal swamp - that figure among the advantages of a conflict-of-laws approach to international law in domestic courts. A conflict-of-laws approach offers ways to respect the nature of international law as law, without simplifying that nature by characterizing it exactly as domestic law. In addition, seeing the parallel with conflict of laws brings a wealth of experience that can enrich and refine the debate on international law in domestic courts. Finally, the parallel with conflicts changes international law in domestic courts from a specific problem addressed by international and constitutional lawyers into a general problem of relativism - which, we argue, conflict of laws is uniquely positioned to address

International Law in Domestic Courts: A Conflict of Laws Approach

The relationship between international law and domestic law is rarely understood as a conflict of laws. Understanding it in this way opens up a parallel with the field of conflict of laws: the field for which the relationship between legal systems, especially the role of another system\u27s jurisdiction, laws, and judgments vis-à-vis the domestic legal system, are exactly the bread-and-butter issues. We argue for such an approach to international law in domestic courts: an approach that we elaborate as theory through technique. In our view, conflicts should be seen broadly as the discipline that developed to deal with conflicts between laws, without necessarily being committed to any one method or policy. Surprisingly, we demonstrate that it is precisely the seemingly negative features of conflicts - the field\u27s high degree of technicality disparaged as a conflict-of-laws machine and the multitude of theories famously deemed a dismal swamp - that figure among the advantages of a conflict-of-laws approach to international law in domestic courts. A conflict-of-laws approach offers ways to respect the nature of international law as law, without simplifying that nature by characterizing it exactly as domestic law. In addition, seeing the parallel with conflict of laws brings a wealth of experience that can enrich and refine the debate on international law in domestic courts. Finally, the parallel with conflicts changes international law in domestic courts from a specific problem addressed by international and constitutional lawyers into a general problem of relativism - which, we argue, conflict of laws is uniquely positioned to address

The Re-State-Ment of Non-State Law: The State, Choice of Law, and the Challenge From Global Legal Pluralism

Should choice of law norms ever designate non-state norms as applicable law? The question is not new of course, although it is seldom discussed systematically. Yet the question moves from the periphery to the center once we view conflict of laws through the lens of globalization. If, through the lens of globalization, states and non-state communities both create norms, this should pose a challenges to conflict of laws rules that traditionally only designates state norms as applicable law. Somewhat surprisingly, conflict of laws and global legal pluralism rarely meet, so far, in analyses This paper does not set out its own theory of conflict of laws for global legal pluralism. Instead, its goal is more modest: to attain conceptual clarity about the encounter of pluralism and conflict of laws that would make such a theory possible. To this end I ask four questions: First, what is global legal pluralism, and to what extent can the normative orders created by non-state communities be considered as law from a theoretical standpoint? (II)Second, how does state law, including conflict of laws, currently deal with non-state normative order? I will show that the rejection of non-state law by traditional conflict of laws doctrine must be understood in combination with the other methods the state uses to account for non-state normative orders which I call incorporation, deference, and delegation. The combination shows that the state does acknowledge non-state normative orders, but it does not acknowledge them as law. (III) This leads to the third question, namely why the state acknowledges the laws of foreign states as law while denying this status to non-state normative orders. The reason is that the state would otherwise undermine its own position: while treating foreign state law as law strengthens its position, treating non-state law as such would weaken it. (IV) Of course, such weakening of the state need not be a bad thing, and the fourth question therefore asks what a more inclusive approach to conflict of laws, recognizing non-state normative orders as law, would require and imply. This fourth question cannot be answered in full here, but I try to show that such a reconceptualization of the state would be more far-reaching, and potentially less attractive, than proponents of legal pluralism may wish for (V.). I conclude with a cautionary note: the relation between global legal pluralism and conflict of laws is more complex, and may necessitate more radical rethinking of traditional ideas, than one might thin