The Rule of Law at the National and International Levels: Contestations and Deference

The Rule of Law at the National and International Levels: Contestations and Deference


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The Rule of Law at the National and International Levels: Contestations and Deference by Machiko Kanetake

This book aims to enhance understanding of the interactions between the international and national rule of law. It demonstrates that the international rule of law is not merely about ensuring national compliance with international law. International law and institutions (eg, international human rights treaty-monitoring bodies and human rights courts) respond to national contestations and show deference to the national rule of law. While this might come at the expense of the certainty of international law, it suggests that the international rule of law can allow for flexibility, national diversity and pluralism.The essays in this volume are set against the background of increasing conflict between international and national legal norms. Moreover the book shows that international law and institutions do not always command blind national obedience to international law, but incorporate a process of adjustment and deference to national law and policies that are protected by the rule of law at the national level.

Product Details

ISBN-13: 9781509924585
Publisher: Hart Publishing
Publication date: 08/23/2018
Series: Studies in International Law
Pages: 488
Product dimensions: 6.00(w) x 1.25(h) x 9.00(d)

About the Author

Machiko Kanetake is Assistant Professor of Public International Law at Utrecht University.André Nollkaemper is Professor of Public International Law and Director of the Amsterdam Center for International Law at the Faculty of Law of the University of Amsterdam.

Table of Contents

Preface and Acknowledgements v

List of Contributors ix

Introduction and Framework

Introduction André Nollknemper 3

1 The Interfaces Between the National and International Rule of Law: A Framework Paper Machiko Kanetake 11

Part I National Contestations in the Critical Revision of the International Rule of Law

2 Judicial Strategies and their Impact on the Development of the International Rule of Law Veronika Fikfak 45

3 The Development of the Immunities of International Organisations in Response to Domestic Contestations Mateja Steinbrück Platiše 67

4 Domestic Review of Treaty-Based International Investment Awards: Effects of the Metalclad Judgment of the British Columbia Supreme Court Shotaro Hamamoto 99

5 National Contestation of International Investment Law and the International Rule of Law Prabhash Ranjan 115

6 Domestic Non-Judicial Institutions in the Development of the International Rule of Law René Urueña 143

7 Interactions Between Domestic Social Norms and International Law over Trade Dispute Resolution Ji Li 171

Part II International Deference to the National Legal Order

8 The Rule of Law Dimensions of Dialogues Between National Courts and Strasbourg Birgit Peters 201

9 Three Interpretive Constraints on the European Court of Human Rights Shed Dothan 227

10 Human Rights, the Margin of Appreciation, and the International Rule of Law Andrew Legg 247

11 Subsidiarity in the Practice of International Courts Machiko Kanetake 269

12 Revisiting the Reservations Dialogue: Negotiating Diversity while Preserving Universality Through Human Rights Law Ekaterina Yahyaoui Krivenko 289

13 Universality, Diversity, and Legal Certainty: Cultural Diversity in the Dialogue Between the CEDAW and States Parties Yvonne Donders Vincent Vleugel 321

14 Domestic Courts Under Scrutiny: The Rule of Law as a Standard (of Deference) in Investor-State Arbitration Hege Elisabeth Kjos 353

15 The Rule of Law at the National and International Levels in Post-Conflict Peace Agreements Jennifer Easterday 383

16 The Rule of Law and the Division of Labour Between National and International Law: The Case of International Energy Relations Stephan W Schill 409


17 The International Rule of Law in the Cycle of Contestations and Deference Machiko Kanetake André Nollkaemper 445

Index 461

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