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Realizing UtopiaThe Future of International Law$
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The Late Antonio Cassese

Print publication date: 2012

Print ISBN-13: 9780199691661

Published to Oxford Scholarship Online: September 2012

DOI: 10.1093/acprof:oso/9780199691661.001.0001

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Domestic Courts Should Embrace Sound Interpretative Strategies in the Development of Human Rights-Oriented International Law

Domestic Courts Should Embrace Sound Interpretative Strategies in the Development of Human Rights-Oriented International Law

Chapter:
(p.607) 46 Domestic Courts Should Embrace Sound Interpretative Strategies in the Development of Human Rights-Oriented International Law
Source:
Realizing Utopia
Author(s):

Massimo Iovane

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199691661.003.0046

There are two significant trends in how domestic courts are applying international law. In the first place, they are exploiting all the unifying and creative potential of customary international law by pioneering the determination of new customary rules, or favouring the evolution of old ones. However, in so doing, they have often affirmed the existence of international customs without sufficient reference to international precedents, or have declared international treaty rules as corresponding ipso facto to general international law. In the second place, they constantly apply the interpretative methods of modern constitutionalism to solve the conflicts between international norms, or to propose an evolutive interpretation of customary and treaty norms on the protection of human rights. In doing so, however, they tend to go too far, violating some well-established norms of customary international law and giving rise to a plethora of interpretations from state to state. This chapter examines these two trends in two dedicated sections, before considering their main shortcomings, with some recommendations for future methodological improvement that may overcome the above-mentioned failings in an otherwise positive and innovative trend.

Keywords:   domestic courts, international law, customary rules, constitutionalism

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