Academic

Knop, Michaels, & Riles on a Conflicts Approach to International Law in Domestic Courts

By Lawrence Solum

Karen Knop, Ralf Michaels, and Annelise Riles (Faculty of Law, University of Toronto , Duke University - School of Law and Cornell University - School of Law) have posted International Law in Domestic Courts: A Conflict of Laws Approach (American Society of International Law Proceedings, Vol. 103, 2009) on SSRN.  Here is the abstract:

The relationship between international law and domestic law is rarely understood as a conflict of laws. Understanding it in this way opens up a parallel with the field of conflict of laws: the field for which the relationship between legal systems, especially the role of another system's jurisdiction, laws, and judgments vis-à-vis the domestic legal system, are exactly the bread-and-butter issues. We argue for such an approach to international law in domestic courts: an approach that we elaborate as "theory through technique."

In our view, conflicts should be seen broadly as the discipline that developed to deal with conflicts between laws, without necessarily being committed to any one method or policy. Surprisingly, we demonstrate that it is precisely the seemingly negative features of conflicts - the field's high degree of technicality disparaged as a "conflict-of-laws machine" and the multitude of theories famously deemed a "dismal swamp" - that figure among the advantages of a conflict-of-laws approach to international law in domestic courts.

A conflict-of-laws approach offers ways to respect the nature of international law as law, without simplifying that nature by characterizing it exactly as domestic law. In addition, seeing the parallel with conflict of laws brings a wealth of experience that can enrich and refine the debate on international law in domestic courts. Finally, the parallel with conflicts changes international law in domestic courts from a specific problem addressed by international and constitutional lawyers into a general problem of relativism - which, we argue, conflict of laws is uniquely positioned to address.

This essay is very short & quite interesting. It raises myriad questions, including the most obvious one, "what conflicts method should be applied?"  The authors are concerned with the "formalism" of choice-of-law methodology, but I find that concern puzzling in the extreme--as the American law of conflicts in its contemporary variants is frequently criticized for the opposite reason--it's extreme instrumentalism.  Worth reading & certainly recommended.

Full post as published by Legal Theory Blog on June 05, 2009 (boomark / email).