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The Application Of Informal International Instruments Before Domestic Courts, André Nollkaemper, Machiko Kanetake
The Application Of Informal International Instruments Before Domestic Courts, André Nollkaemper, Machiko Kanetake
André Nollkaemper
The rigidity associated with formal international law has induced states and international organizations to resort to declarations, comments, guidelines, and other “informal” international instruments. Despite their informality, many of these nontreaty instruments have prompted actions at the domestic level, including before domestic courts. This Article analyzes on what basis domestic courts apply informal international instruments. Given that the “bindingness” is not always available as an explanatory factor, the normative basis for giving effect to informal instruments has to be found in the persuasiveness of instruments. Yet, what makes a particular instrument persuasive in the eyes of a domestic court remains …
The Effects Of Treaties In Domestic Law, André Nollkaemper
The Effects Of Treaties In Domestic Law, André Nollkaemper
André Nollkaemper
Treaties, while operating primarily at international level, by definition require a legal connection to the national level. The connection between treaties and domestic law is particularly relevant when treaties regulate matters that also are also dealt with by domestic law, and determine the position of private individuals who by their very nature are (primarily) subjected to national law. Obviously, the domestic effect of treaties is not just a matter of technique. It serves important policy objectives and reflects deeply political questions. In the final analysis, determining whether and how a treaty has direct effect requires an answer to the question …