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The Power and Purpose of International LawInsights from the Theory and Practice of Enforcement$
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Mary Ellen O'Connell

Print publication date: 2008

Print ISBN-13: 9780195368949

Published to Oxford Scholarship Online: January 2009

DOI: 10.1093/acprof:oso/9780195368949.001.0001

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National Court Enforcement

National Court Enforcement

(p.327) Chapter 9 National Court Enforcement
The Power and Purpose of International Law

Mary Ellen O'Connell

Oxford University Press

National courts have extensive control over people and assets and, thus, have impressive capacity to enforce international law. More international law is likely enforced through national courts than in any other manner. Decisions flowing from almost 200 court systems may lead to varying and even conflicting decisions as to the requirements of international law, possibly leading to fragmentation. New classical enforcement theory that teaches that natural law, positive law, and process theory can guide national courts to optimal decisions to keep international truly universal. These courts must also respect certain international law principles in the conduct of adjudication — from jurisdictional principles to due process. This chapter contrasts a decision of American courts refusing to enforce an ICJ judgment with a German decision speaking of the importance of doing so in support of individual human rights and the law of the international community.

Keywords:   national courts, fragmentation, jus cogens, international community, judicial hierarchy, jurisdiction, due process

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