Importing International Law in Post-Conflict States: The Role of Domestic Courts
Andre Nollkaemper
University of Amsterdam - Amsterdam Center for International Law
Cedric Ryngaert
Ludwig Maximilians University, Munich - Institute of International Law, Comparative Law
Edda Kristjansdottir
affiliation not provided to SSRN
September 26, 2011
Amsterdam Center for International Law No. 2011-12
Abstract:
States that are in transition after a violent conflict or an authoritarian past face daunting challenges in (re)establishing the rule of law. This paper contains the introduction and the conclusion of a volume that empirically examines several recent attempts which states have made to buttress the rule of law by importing international law into the gaps created in domestic law in a transition period. More in particular, the volume considers the practice of empowering national courts to give effect to international law in order to protect the rule of law.
The use of the word ‘importing’ in the title of the book does not imply that the use of international norms in national legal orders is a one-way process by which the ‘receiving’ states choose (or are forced) to import an international rules. Often the contrary appears to be the case, and much of the literature on rule of law promotion by states and international institutions takes an ‘exporting’ rather than ‘importing’ approach. While we recognize and indeed will pay ample attention, in the chapters that follow, to the activities of international institutions that seek to strengthen the rule of law in particular post-conflict situations, in the final analysis the effect of such strategies, both in legal and practical terms, depends on the ‘receiving’ state – hence the chosen perspective of the importing state.
The case-studies in the book cover such diverse situations as Iraq, Afghanistan, the Balkans, Nepal, and Rwanda. The conclusions may directly be relevant to future situations in both post conflict and post-authoritarian situations.
States that are in transition after a violent conflict or an authoritarian past face daunting challenges in (re)establishing the rule of law. This paper contains the introduction and the conclusion of a volume that empirically examines several recent attempts which states have made to buttress the rule of law by importing international law into the gaps created in domestic law in a transition period. More in particular, the volume considers the practice of empowering national courts to give effect to international law in order to protect the rule of law.
The use of the word ‘importing’ in the title of the book does not imply that the use of international norms in national legal orders is a one-way process by which the ‘receiving’ states choose (or are forced) to import an international rules. Often the contrary appears to be the case, and much of the literature on rule of law promotion by states and international institutions takes an ‘exporting’ rather than ‘importing’ approach. While we recognize and indeed will pay ample attention, in the chapters that follow, to the activities of international institutions that seek to strengthen the rule of law in particular post-conflict situations, in the final analysis the effect of such strategies, both in legal and practical terms, depends on the ‘receiving’ state – hence the chosen perspective of the importing state.
The case-studies in the book cover such diverse situations as Iraq, Afghanistan, the Balkans, Nepal, and Rwanda. The conclusions may directly be relevant to future situations in both post conflict and post-authoritarian situations.
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