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.

This chapter discusses the complicated relationship between international alw and domestic law, focusing on international law is received by domestic legal orders

IOM wields power over individuals and is capable of violating their rights, for instance when it contributes to migrant detention operations or when it engages in migrant returns that are ‘voluntary under compulsion’. This chapter assesses IOM’s legal human rights accountability in three steps. First, IOM’s human rights obligations are identified. While there has been much debate about their proper source, there is today little doubt that organizations such as IOM as have at least a core bundle of human rights obligations. The second step is to identify and analyze the mechanisms that may potentially hold IOM to account for violations of its human rights obligations. I identify the Office of the Inspector General and domestic courts as the only two IOM human rights accountability mechanisms, and analyze their rules on access, participation, neutrality, and outcomes using doctrinal legal methodology. Third, I assess the sufficiency of these two accountability mechanisms, in light of the right to an effective remedy and procedural justice research. The chapter concludes with an overall assessment of IOM’s human rights accountability, and some thoughts on potential avenues for reform.

This chapter explores the controversial topic of dispute settlement under international investment law, considering the much-maligned investor–state dispute settlement and its reforms, including the EU’s investment court system and alternative dispute settlement mechanisms.

This chapter analyses a large dataset of domestic court decisions relevant to customary international law (CIL). It finds that domestic courts at times engage in CIL interpretation rather than mere ascertainment, even if they largely refrain from using that term. Domestic courts may interpret CIL autonomously, may defer to and validate international courts’ CIL interpretations, or interpret written documents, such as treaties, codifying CIL norms. Such practices bear out that domestic courts may consider some core CIL norms to be relatively stable and amenable to further refinement through interpretation. When interpreting CIL, domestic courts appear to resort mainly to systemic interpretation and interpretation on the basis of subsequent State practice. This reflects earlier findings by Panos Merkouris with respect to CIL interpretation by international courts. Domestic courts deciding cases on the basis of CIL may want to be more explicit regarding whether they engage in de novo CIL norm-identification or rather in the interpretation of pre-existing and stabilised customary norms. In case of interpretation, they may want to improve the methodological quality of their reasoning by pinpointing the canon of construction which they apply, and by relying on sufficient international (including foreign) legal practice.

This chapter examines the contribution that domestic courts may have in the development of rules or guidelines for the interpretation of customary international law (CIL). Through an examination of national cases where courts interpret both domestic and international custom, the chapter traces methodologies of interpretation and motivations behind them. The chapter then asks two questions: how can we learn from domestic interpretive practices? and why should we learn from them? In answer to the first question, the chapter argues that domestic courts can contribute to the development of rules for CIL interpretation beyond the role assigned to them in the framework of sources, and also in informal ways. In answer to the second question, the chapter argues that looking to domestic interpretive approaches for custom may help us fill the ‘gap’ currently existing on this issue in international law, that domestic courts offer a wealth of cases from which we can draw, and that by learning from domestic interpretive practices international law can provide domestic judges with various familiar tools for their further engagement with CIL in the future.

This chapter analyses normative pathways that guide the deliberative space involving UN human rights treaty-monitoring bodies and domestic courts. Judges vary in terms of their degree of engagement with treaty body findings. This chapter highlights that international law itself provides a set of justifications that sustain varied modes of judicial engagement. One such justification pertains to an obligation to consider the specific findings of treaty-monitoring bodies. Before domestic courts, explicit reference to such an obligation is rare. Yet normative variations of the obligation to consider have guided domestic courts’ engagement to treaty body findings. The duty to consider and its variations may not create robust normative paths. Nevertheless, they arguably pave the way for a sustainable and forward-looking deliberative space by creating the opportunities for learning and self-reflection for both the monitoring bodies and domestic courts.

This chapter examines how internal self-determination is understood and applied by courts of law. The ICJ's jurisprudence is silent on internal self-determination, even though Separate Opinions of judges contain helpful discussions about the principle and its relevance in a post-colonial world. After the discussion about the jurisprudence of the ICJ, the chapter focuses on two specific cases decided in domestic courts. These are two cases decided by the Supreme Courts of Canada and Sri Lanka, respectively. In doing so, the chapter shows how domestic courts approach issues of internal self-determination. The chapter argues that domestic courts generally tend to acknowledge the relevance of internal self-determination and its application to peoples within states. The courts are however cautious in discussing aspects relating to internal self-determination.

This chapter discusses the complicated relationship between international alw and domestic law, focusing on international law is received by domestic legal orders

By way of context to the detailed analysis of investor–State arbitration conducted in Part III of the textbook, Chapter 10 examines in turn the types of investment-related disputes that can arise and the various dispute settlement mechanisms that can be availed of to settle such disputes. For the types of investment-related disputes, it distinguishes between the different types of State–State disputes and investor–State disputes. For the purpose of examining dispute settlement mechanisms, a distinction is made between the mechanisms made available in international investment agreements (IIAs) to settle investment-related disputes and those that have been used prior to or in parallel to the development of IIA practice to settle ‘single’ disputes or ‘sets’ of disputes. Specific attention is paid to the mechanisms that have been established or contemplated in the 2010s to replace investor–State arbitration in the settlement of investor–State disputes as a reaction to the criticism formulated across civil society against the latter.

This chapter establishes a framework for the analyis and assessment of the accountability mechanisms of international organizations. I establish a definition of IO accountability mechanisms, as well as a detailed taxonomy of them. I also propose a normative framework for assessing the sufficiency of IO accountability mechanisms, based on the right to remedy and procedural justice research. From these two strands of theory, I establish concrete normative yardsticks for assessing four aspects of IO accountability mechanisms: Access, Voice, Neutrality, and Outcome.

In this chapter the framework developed in Chapter 3 is applied to the UNHCR practice of administering refugee camps. I discuss how the UNHCR thus exercises power over individuals, both directly through its personel and through its so-called implementing partners. The sources of the UNHCR’s human rights obligations are also identified. Thereafter, I turn to assessing the applicable accountability mechanisms: the UNHCR Inspector General’s Office, the UN Office of Internal Oversight Services, and domestic courts. Neither of these mechanisms provide sufficient accountability.

In this chapter I apply the framework developed in Chapter 3 to the first case study, namely the EU’s Common Security and Defense Policy missions. This case study focuses on two such mission in particular: NAVFOR Atalanta and EULEX Kosovo. The structure of both missions and their potential for human rights violations is discussed, before turning to the applicable accountability mechanisms. These include the Court of Justice of the EU, the European Ombudsman, domestic courts, and EULEX Kosovo’s Human Rights Review Panel. The overall assessment is that the accountability mechanisms applicable to CSDP missions are insufficient.

In this chapter I apply the framework developed in Chapter 3 to the ICC Detention Centre. The chapter opens with an overview of who the ICC detains, and how the Detention Centre is managed. Then I identify the human rights obligations of the ICC and discuss the potential for human rights violations in connection with ICC detention. The remainder of the chapter is devoted to the myriad of accountability mechanisms available to ICC detainees: the administrative appeals procedure, pre-trial and appeals chambers, the Independent Oversight Mechanism, and domestic courts. Despite some promising aspects, these accountability mechanisms are also insufficient.