Domestic Courts and the Interpretation of International Law

Methods and Reasoning Based on the Swiss Example

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Winner of the Walther Hug Prize 2021. Read more.

In Domestic Courts and the Interpretation of International Law, Odile Ammann examines how domestic judges do and must interpret international law. She analyzes their interpretative methodology and the predictability, clarity, and consistency of their reasoning. Highlighting the main gaps in contemporary international legal scholarship regarding international law in domestic courts, Ammann offers a fresh and thorough theoretical reflection on this topic. Based on a detailed study of the judicial practice, she shows how courts' interpretative method and reasoning can be further improved. She also argues that interpretative methods must be taken more seriously in international law. While she primarily uses the Swiss example to illustrate her claims, the basic tenets of her analysis apply to any domestic legal context.
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Odile Ammann, Ph.D., University of Fribourg, LL.M., Harvard, is a senior researcher at the University of Zurich. Her work focuses on international law and legal theory, e.g., 'The European Court of Human Rights and Swiss Politics' (2018).
Acknowledgments
Abbreviations

Introduction
 1 The Subject and Basic Claims of This Book
 2 Structure and Approach
 3 The Benchmarks of Legality and Quality

Part 1
What Is Interpretation?

1 The Interpretation of International Law by Domestic Courts – A Topic That Matters
 1 Introduction
 2 The State of the Literature
  2.1 Descriptive Bias
  2.2 Domestic Bias
  2.3 ‘Amour Impossible’
  2.4 Legal Imperative
  2.5 Swiss Gap
 3 Why Switzerland?
 4 Why Courts?
 5 Why Domestic Courts?
 6 Why International Law?
 7 Why Focus on the Law’s Interpretative Methods?

2 Terminology and Conceptual Apparatus
 1 Introduction
 2 Legal Interpretation
 3 Judicial Interpretation
 4 Domestic Judicial Interpretation
 5 Methods of Interpretation
  5.1 Normative Interpretative Theories
  5.2 Structural and Axiological Interpretative Principles
  5.3 Rules
  5.4 Auxiliary Means
  5.5 Argument Types
 6 The Interpretation of International Law

3 Interpreting International Law in Context – Domestic Specificities
 1 Introduction
 2 The Swiss State and International Law
  2.1 Swiss Foreign Relations Law
  2.2 International Law in the Swiss Legal Order
 3 Legal Principles of Political Organization
  3.1 Federalism
  3.2 Linguistic Diversity
  3.3 The Rule of Law
  3.4 Semi-Direct Democracy
  3.5 The Federal Assembly qua ‘Supreme Authority of the Confederation’
 4 The Swiss Judiciary
  4.1 The Structure of the Swiss Judiciary
  4.2 Characteristics of Swiss Courts’ Interpretative Activity
 5 Conclusion

Part 2
Why Interpret?

4 The Legal Effect of Domestic Rulings in International Law
 1 Introduction
 2 Domestic Rulings as Means of Enforcement of International Law
 3 Domestic Rulings as Contributors to the Sources and Interpretation of International Law
  3.1 Domestic Rulings in the Sources of International Law (Art. 38(1)(a)– (c) icj Statute)
  3.2 Domestic Rulings as Auxiliary Means (Art. 38(1)(d) icj Statute)
 4 Conclusion

Part 3
How to Interpret?
5 The Need for Interpretative Methods in International Law
 1 Introduction
 2 Why Does the Law Need Interpretative Methods? a Comparison With Interpretation Outside the Law

  2.1 Similarities
  2.2 Differences
 3 The Origins of Interpretative Methods in Domestic and International Law
  3.1 Domestic Law
  3.2 International Law
  3.3 The Relationship between the Interpretative Methods of Domestic and International Law
 4 Three Reasons for Requiring States to Use Interpretative Methods
  4.1 Vagueness
  4.2 Counter-Majoritarian Decisions
  4.3 Judicial Politics
 5 Three Objections against Interpretative Methods
  5.1 The ‘Vague Methods’ Objection
  5.2 The ‘Self-Made Methods’ Objection
  5.3 The ‘Outcome Over Process’ Objection
 6 Conclusion

6 The Interpretative Methods of International Law: What Are They, and Why Use Them?
 1 Introduction
 2 The Interpretative Methods of International Law
  2.1 Textual Interpretation
  2.2 Systematic Interpretation
  2.3 Teleological Interpretation
  2.4 Historical Interpretation
  2.5 The Relationship between the Various Interpretative Methods
 3 Conclusion

7 Swiss Courts and Treaty Interpretation
 1 Introduction
 2 Domestic Courts and the Methods of Treaty Interpretation
  2.1 Introductory Remarks
  2.2 Exposing and Evaluating the Practice
 3 Swiss Courts and the Methods of Treaty Interpretation
  3.1 The Swiss Federal Tribunal and Treaty Interpretation before the vclt’s Entry into Force (1954–1980)
  3.2 The Swiss Federal Tribunal and Treaty Interpretation after the vclt’s Entry into Force and before Its Ratification by Switzerland (1980–1990)
  3.3 Swiss Courts and Treaty Interpretation after the vclt’s Entry into Force in Switzerland (1990–2016)
  3.4 Relationship with Interpretative Methods under Swiss Law
  3.5 Comparing the Practice of Swiss Courts
  3.6 Putting the Swiss Judicial Practice into Perspective
 4 Evaluation

8 Swiss Courts and the Interpretation of Unwritten International Law
 1 Introduction
 2 Customary International Law
  2.1 Domestic Courts and the Interpretation of Customary International Law
  2.2 Swiss Courts and the Interpretation of Customary International Law
 3 General Principles of International Law
  3.1 Domestic Courts and the Interpretation of General Principles of International Law
  3.2 Swiss Courts and the Interpretation of General Principles of International Law
 4 Evaluation

Conclusion and Recommendations
 1 The Argument Defended in This Book
 2 Recommendations
  2.1 Improving the Legality and the Quality of Domestic Rulings
  2.2  Enhancing the Accessibility of Domestic Rulings

Bibliography
Index
Domestic judges, academics working on international law, legal theory, and judicial reasoning, academic libraries, advocates, public servants, diplomats, students, and laypersons interested in the relationship between domestic and international law.
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