This part focuses on the interpretative methodologies and principles employed by international human rights organs in applying and developing human rights norms. It explores the role of various interpreters, including international, regional, and national courts, in shaping the meaning and scope of human rights. The sections examine the methods of interpretation used by human rights bodies, such as textual, contextual, purposive, and evolutionary approaches, and the challenges in ensuring consistency and coherence across different jurisdictions. It also discusses the purposes of interpretation, including the protection of human rights, the development of international human rights law, and the promotion of judicial dialogue and coherence. This part delves into the international legal regime governing human rights and freedoms, covering states’ general obligations, the conditions for engaging state responsibility, and the regime for the enjoyment and exercise of rights and freedoms. By analyzing the interpretative practices and legal obligations, this part aims to provide a deeper understanding of the dynamics of human rights interpretation and the factors influencing the application of human rights norms in diverse legal and cultural contexts.

In this chapter, Kimberley Trapp and Jacob Smith examine the role of domestic courts in international dispute settlement. This chapter maps the variety of engagements by international dispute settlement bodies with the decisions and processes of domestic courts and explores how the particular institutional nature and contexts of international dispute settlement bodies may colour the nature and degree of that engagement. The chapter situates this engagement on a spectrum of deference to greater intrusion. It also provides an illustration of the factors that determine this engagement, including the degree of penetration of the international legal framework in domestic legal systems, the expectations that States have when submitting to means of dispute settlement, and the socio-legal context.

Customary international law is one of the formal sources of international law and plays a pivotal role in the existence and functioning of the international legal system. Although for a rule of CIL to emerge a widespread, representative, constant and virtually uniform state practice is required, accompanied by the requisite opinio juris, that does not necessarily mean that CIL is a slow and archaic process, which has been overcome by extensive treaty-making. On the contrary, CIL remains a vital element in the corpus of international law that is open to refinement, clarification, development and evolution. This process does not happen only through the classical emergence and/or subsequent modification of the rule, but also and perhaps most importantly through the process of interpretation. This chapter demonstrates this by showing that CIL interpretation is neither problematic from a theoretical perspective, nor is it the only example of interpretation of unwritten rules. This is further reinforced by jurisprudence taken from both the domestic and the international legal system, although such interpretative exercises are not without their limits. What emerges from this analysis is that CIL interpretation, as Sur has beautifully noted, is of a negentropic nature that constantly nourishes and updates CIL.

The chapter argues that fieldwork – specifically multi-sited, semi-structured interviews and participant observation – is uniquely suited for unpacking how the constraints of daily practice within national courts frustrate the subnational reach of the European Union's (EU) legal authority. Deriving methodological insights and practical lessons from fifteen months of fieldwork in Italian, French, and German courts, the author shows how fieldwork reveals judges to be neither solely driven by individual attitudes nor by strategic quests for power: they are also employees within a bureaucracy. Anchored by the demands of established practice, knowledge, and everyday work, judges can develop an institutionally rooted consciousness resisting disruptive confrontations with new and unfamiliar rules like EU law. Through on-site iteration and triangulation, field researchers can trace, unpack, and corroborate this consciousness in real time, with an eye to also hypothesizing the conditions under which resistances to Europeanizing change can be overcome. In so doing, the researcher can intercept what one judge referred to as a ‘bureaucratic silence’ within which EU law ‘dies’: A web of habitual institutional practices scarcely detectable via other modes of social inquiry.

The recent emergence of international commercial courts as a distinct species of court raises numerous legal issues as to the relationship and interaction between those courts and pre-existing national courts. In some jurisdictions, such as Singapore, the relationship between the courts has been harmonious. Yet in others the creation of new, international commercial courts has fomented conflicts or 'turf wars' between the courts. This potential behavioural aspect of courts is not new, and one may find examples from English legal history of rivalries between courts. On occasion those rivalries are evident in the modern world, including in relation to the international commercial courts of Dubai. This chapter considers historical examples of conflicts within the English court system and the nature of international commercial courts, and discusses instances from Dubai of where the DIFC and Dubai courts have clashed.

This chapter focuses on how the application of an IO’s jurisdictional immunities prevent victims from accessing justice at the national level. The discussion first focuses on the basis of an IO’s domestic legal personality which allows suits to be brought against them at all. The chapter then identifies how IO immunities are applied today. Whereas IO immunities were intended to be functional, they have become by and large de facto absolute. This means that a claimant’s case is procedurally defeated and the merits do not get a chance to be ventilated. There are some indications that the tide might be shifting in favour of the claimant. Still, the way in which claims against IOs are addressed at the national level is unsustainable and requires a fundamental reframing.

Chapter 8 explores the essential institutional characteristics for maintaining homogeneity in the expanded internal market in the stages of application and implementation of the acquis. The analysis focusses on the institutional and procedural frameworks in the EU and the multilateral agreements, respectively, that are vested with the task of the uniform enforcement and application of the acquis in and outside the Union. The analysis is divided into two parts dealing with the centralising and decentralising dynamics, respectively. The former pertains to the centralised institutions and procedures for surveillance, enforcement and judicial protection in the EU and the multilateral agreements; and the latter to the procedural links between the international or supranational institutions, on the one hand, and national authorities and individuals, on the other.

Chapter 5 addresses the potential role of domestic courts and mechanisms in the adjudication and award of reparations for international crimes. It draws from existing studies in the field and examines the role that domestic courts may have in adjudicating claims of reparations for international crimes. It analyzes these questions through case studies of domestic reparations for international crimes in Bosnia and Herzegovina where the international criminal tribunal did not have a reparative dimension. It also provides a unique contribution through a timely discussion of the development of universal civil jurisdiction, including the challenges, recent case law from different countries and the United States through the Alien Tort Claims Act (ATCA), as well as recent decisions by US courts limiting its jurisdictions on the ATCA. With this chapter, the book provides a careful survey and analysis of the intricacies of international, national, and administrative mechanisms that are being developed to address reparative justice for international crimes, their unique challenges and some suggestions on how reparative justice for international crimes should develop.

An enduring contribution of Jessup’s Transnational Law is his critique of “international law” and his case for a functionalist concept of “transnational law” defined as rules—international, national or private—that offer solutions to transnational problems. Extending Jessup’s argument, this chapter critiques the concept of the “international legal system,” proposes an alternative concept of the “global legal system” and offers an analytical framework for understanding that system. The global legal system consists of not only rules, but also courts and other institutions, that provide legal solutions to transnational problems. These institutions are national, international, private and sometimes hybrid. Among the solutions provided are three generic governance functions: prescription, adjudication and enforcement. More than one institution may provide solutions to a given transnational problem, creating a need for choice across three dimensions: national-national, national-international and public-private. The global legal system uses three types of principles to guide these choices: principles of authority, allocation and party autonomy. This chapter’s concept of a global legal system aims to provide a coherent way of thinking about the multiple transnational problem-solving functions of legal systems and the multiple levels at which those functions are performed.

This chapter uses transnational law in the Jessup tradition as a lens for examining contemporary debates about the legitimacy and methodology of national courts engaging with foreign and international law. Covering academic and judicial views from a number of countries in the common law world, particularly the USA, UK, and Australia, it offers an Australian perspective on judicial transnationalisation of law, including analysis of decisions of the High Court of Australia over a 25-year period. In outlining features of the landscape of judicial transnationalisation of law in the common law world, it canvasses various jurisprudential, jurisdictional, methodological, and topical challenges for conventional frames of reference about national courts engaging with international and foreign law. Finally, it explores the implications of positioning national courts within a 21st century inter-systemic view of governance, regulation, and democracy.