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The Interpretation of International Law by Domestic CourtsUniformity, Diversity, Convergence$
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Helmut Philipp Aust and Georg Nolte

Print publication date: 2016

Print ISBN-13: 9780198738923

Published to Oxford Scholarship Online: March 2016

DOI: 10.1093/acprof:oso/9780198738923.001.0001

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National Courts and Interpretive Approaches to International Law

National Courts and Interpretive Approaches to International Law

(p.317) 16 National Courts and Interpretive Approaches to International Law
The Interpretation of International Law by Domestic Courts

Olga Frishman

Oxford University Press

Should national courts act as agents of the international community and promote a global rule of law based on a hierarchical structure which puts international tribunals at its apex? Must national courts abandon their current practices of divergent methods of interpretation and use the same rules of interpretation of international law that international courts apply? The chapter rejects this ‘convergence thesis’. Even when taking only global interests into account, it argues that the convergence thesis is neither necessary nor sufficient to promote collective values; in fact it is counterproductive. Instead, it outlines a middle road for national courts to take that is informed by the vision of sovereignty as a trusteeship of humanity, which requires national courts to take global interests into account. This view does not imply that national courts should reject international rules of interpretation, but it does imply that they should not aspire to mimic international courts.

Keywords:   international law, law of treaties, interpretation, national courts, fragmentation, sovereignty

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