ILDC Colloquium in The Hague

The „First International Law in Domestic Courts (ILDC) Colloquium“ took place on Thursday, 27 March and Friday 28 March 2008 in the Peace Palace in The Hague. The international conference was organized by the Amsterdam Center of International Law (Faculty of Law, University of Amsterdam) on the occasion of the first year following the successful official launch of the ILDC database providing extensive State practice relating to public international law.
Funded primarily by the Brussels-based COST initiative (European Cooperation in the Field of Scientific and Technical Research), meetings of the ILDC Editorial Board and the COST Management Committee addressing ILDC organizational matters as well as so-called Working Group discussions on the “Rule of Law in International Law" and “The Hierarchy in International Law" preceded the reception of approximately 180 participants representing jurisdictions ranging from Azerbaijan to Syria.
On Thursday, 27 March 2008, after the welcome address of Prof. André Nollkaemper from the University of Amsterdam, Ernst Hirsch Ballin, Minister of Justice of the Netherlands, officially opened the ILDC Colloquium.
In her discourse on “The changing position of domestic courts in the international legal order" H.E. Judge Rosalyn Higgins QC provided an overview of recent State practice relating to international law. She particularly drew on State immunity examples of European courts and the most recent US Supreme Court decisions on the reception of international law in the United States in order to underline the growing awareness of domestic courts in relation to international law.
The program of Friday, 28 March 2008, was divided into three Panel Sessions.
The morning Panel on “International Law in three domestic jurisdictions: France, India and Russia" was chaired by Prof. Christof Heyns University of Pretoria). It sought to identify trends in relation to the application of international law through the dialogue of distinguished scholars from France, India and Russia. The presentations started with the Former Senior Member of the French Conseil d’Etat Roger Errera on “The Law and Practice in France: General Issues and Recent Developments". He particularly referred to the place of international law in the French legal system, the methods applied by French judges in identifying and applying international law and the French court practice in relation to the ECHR. Bakhtiyar Tuzmukhamedov from the Moscow Diplomatic Academy held a speech on “International Law in the Russian Constitutional Court". He notably stressed the role of the Russian Constitutional Court in applying international law, the “protective function" of the Russian constitution in relation to international law and alluded to Human Rights aspects in the respective Russian case law. In her presentation on “International Law in Domestic Courts in India" Prof. Surinder Kaur Verma from the University of Delhi particularly pointed to the differences between the reception of international law in India as opposed to the British practice. She cited examples in the field of Human Rights and Environmental Law for the interplay between concepts developed in international law and domestic court approaches.
Prof. Sienho Yee from Xi’an Jiaotong University, X’ian chaired the noontime Panel on “Domestic courts and the international rule of law". In light of the methodological challenge inherent to the topic, the Panel undertook to identify the contribution of court practice to the protection of the international rule of law. As an illustrative example, Lord Thomas Henry Bingham (Senior Lord of Appeal in Ordinary) addressed the United Kingdom House of Lords’ Decision in Al-Jedda relating to the detention of an individual by British forces in Iraq in order to demonstrate problems of attributability of acts of British forces under the UNSCR 1546 to the United Kingdom. Further, Lord Bingham discussed issues of an alleged violation of the Convention of for the Protection of Human Rights and Fundamental Freedoms, implemented to the UK Legal order by virtue of the UK Human Rights Act 1998. Particular reference was made to the related decisions of the Grand Chamber of the European Court of Human Rights in Behrami v. France and Saramati v. France, Germany and Norway.
Judge Mark Villiger from the European Court of Human Rights added the perspective of the European Court of Human Rights in his presentation on “Domestic Courts and the International Rule of Law". In his extensive analysis of the case law, the particular importance of the principle of subsidiarity was underlined.
The afternoon Panel on “Domestic courts and hierarchy in international law" was chaired by Prof. Claudia Martin from the American University in Washington. It analyzed the importance of a small category of fundamental values shared by States which challenge the traditional concept of equality of rules of international law. Prof. Dinah Shelton from the George Washington University presented the US American perspective on “Action and Reaction: Hierarchy, Advocacy and the United States Federal Courts". In her presentation on “The Emergence of Hierarchy in International Law through the Practice of European Courts: Towards Constitutionalization or Fragmentation" Prof. Erika de Wet from Amsterdam University linked the power of domestic courts to review acts implementing UNSCR according to the severity of the impact of the UNSCR on the Human Rights.
Prof. Eyal Benvenisti from Tel Aviv University provided a policy explanation for the emerging domestic jurisprudence relating to international law as a reaction to forces of globalization in his closing address on “Judicial Checks and Balances: The Emerging Balance of Power Between International and National Courts". He particularly stressed the dialogue between national and international courts, which, interestingly, does not necessarily lead to a further harmonization of law