Table of Contents

Research Handbook on the Theory and Practice of International Lawmaking

Research Handbook on the Theory and Practice of International Lawmaking

Research Handbooks in International Law series

Edited by Catherine Brölmann and Yannick Radi

The global landscape has changed profoundly over the past decades. As a result, the account of the making of international law based on the traditional theory of sources is increasingly challenged. This Handbook offers a comprehensive guide to the theory and practice of international law‐making today. It takes stock at both the conceptual and the empirical level of the instruments, processes, and actors involved in the making of international law. The book contains essays by leading scholars on key aspects of international law-making and on law-making in the main issue areas, with an interest in classic processes as well as new developments and shades of normativity.

Chapter 11: Domestic judicial lawmaking

Antonios Tzanakopoulos

Subjects: law - academic, legal theory, public international law

Abstract

This contribution to the Research Handbook on the Theory and Practice of International Law-Making discusses the law-making potential of domestic courts. Given the seemingly strict 'dualist' approach of international law to domestic law and domestic court decisions ('merely facts'), the paper demonstrates the modest international law-developing function of domestic courts: it first details their methods in engaging international law, and then discusses the impact of such engagement. It concludes that domestic courts may, in terms of content, fine-tune rules of international law rather than set grand principles. In terms of process, this is done by 'suggesting' the fine-tuning, rather than in any way single-handedly developing international law.

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