Wednesday, May 9, 2012

Interfaces: international & national legal orders

The Amsterdam Center for International Law (ACIL) this year has been organizing a research group called "Interfaces".
International scholarship has been producing a number of studies as to the reception of international law by the national legal order. The research group "Interfaces" looks at the inter-order interactions from the international side, and seeks to examine the reestablishment of international law's relationships with national law. (A prior post on the research group is here.)

Three standpoints to capture the interfaces between national and international legal orders
The interfaces between the two legal orders can be captured from three analytical standpoints:
► how national law accepts or resists international law;
► how the legal orders interact in an "in-between" space; and
► how international law understands, accepts, or resists national law.
While the ACIL's research group will continue to study the first standpoint (i.e., the reception of international law at national level), its main focus is on the latter two standpoints, and examines how, mediated through an in-between space and in-between norms, the national reception of international law wings back and develops international law.

The in-between space
As concerns the in-between space, the group looks at how the responses in national law (including national court decisions) to international law and vice versa are mediated by norms and processes in an in-between space that are not formally part of national law or international law, but that are relied upon by relevant actors.
Such in-between norms may be studied from two different levels. First, there are norms that are "common" to constitutional principles of states, which also relate to international law—even though they have yet to be part of formal international law. Examples may include be democracy and the rule of law. Second, there might also be in-between norms which govern the "manner" of interactions between national and international law. Examples may be the principle of subsidiarity, the margin of appreciation, and comity.

The face of international law
With respect to the standpoint of the face of international law, the group examines the inter-related question how the increased interactions with national law have reestablished the reception of national law by international law and to some extent the meaning of international law itself.
While the receiving modes vary considerably according to the areas of international law, three dimensions as to how international law is faced with national law are particularly relevant. First, international law may give legal effect to national law (and decisions) beyond the limited “state practice” value; second, it may keep subtle distance from national law; and, finally, it would engage in interpretive harmonization with respect to the substance of law.

Cooperation with other research projects
The project Interfaces is part of the ACIL's multi-year research Programme on the "International Rule of Law" (2010-).
It is led by André Nollkaemper (left), Professor of Public International Law and Vice-Dean for Research at the Faculty of Law of the University of Amsterdam.
 The project provides a framework and meeting point for several specific research activities and projects at ACIL, including:
► "Internationalisation of Rule of Law: Changing Context and New Challenges" (2009-2013), conducted in close collaboration with the Wissenschaftszentrum Berlin für Sozialforschung (WZB, Berlin) and La Trobe University (Australia), and with the sponsorship from the Hague Institute for the Internationalisation of Law (HiiL)
► The multinational collaborative project on "International law through the National Prism: the Impact of Judicial Dialogue" (2010-) funded by the European Science Foundation.
From the University of Amsterdam, André Nollkaemper, Rosanne van Alebeek (left), and Hege Elisabeth Kjos (right) have been working on this project.
► The ILA Study Group on Principles on the Application of International Law in National Courts (2011-2014)

Research group members
The group is led by André Nollkaemper and composed of five researchers:
►  Rosanne van Alebeek (above left) (law on immunity),
►  Yvonne M. Donders (left) (international human rights and cultural diversity),
►  Hege Elisabeth Kjos (above right) (international investment law and arbitration),
►  James H. Mathis (right) (international trade and economic law), and
► myself, Machiko Kanetake (right) (international organizations law).
The project is supported by two researchers, Elaine Fahey (left) (EU law and EU-US relations), and Ingo Venzke (right) (international dispute settlement) who make up a bridge between this group and the "The Architecture of Postnational Rule-Making” (2010-) project, which looks more widely as processes of post national rule-making, with direct implications for the interfaces between international and national law.
Two selected research master scholars, Jeanrique Fahner, and Thomas Vergna, collaborate on this project.

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