Creating a Rule of International Law by Internationalising Domestic Legal Cultures

As previously mentioned here on IntLawGrrls, the meeting of the International Law Section of the AALS in San Diego in January of this year focused on the concept of international law as a ‘law of rules’. I was very happy to be invited to participate in that meeting and have been working on the paper I delivered there since. In the paper entitled 'Dualism, Domestic Courts and the Rule of International Law,' which will appear in an issue of Ius Gentium edited by our colleague Mortimer Sellers, I try to grapple with the (frequently made) assumption that dualism can explain the extent to which domestic courts look to unincorporated international law in their decisions.
I should start by saying that I am not at all convinced that dualism is in fact an explanation for non-internationalism —first of all, dualism is rarely cited by courts as the reason for not referring to international law, and secondly, dualism is predicated on a conception of different spheres of operation that no longer exists to the extent that it did, especially in relation to international human rights law which is designed to have a domestic/internal impact.
Instead of focusing on dualism, I argue that we need to focus on legal culture. If one takes a look at a small sample of dualist states, as I do in the paper, it becomes apparent that the degree of internationalism in superior courts is not uniform; rather there is a ‘spectrum of internationalism’. I argue that this spectrum is relatable to legal culture and that those of us who support greater internationalism ought to focus on internationalising legal culture. As a starting point I pick out five areas of concentration:

► Perceptions of International Law
In my view it is imperative that we see international law not as an interloper but rather as a partner and interpretive aid to domestic law, particularly given the shared values and underlying principles of domestic and international rights protection (dignity, state limitation, accountability, rule of law). In this respect, it seems important to promote and cultivate the synergetic relationships between international and domestic law.

► Perceptions of International Law within the Rule of Law
In the paper I draw heavily on Lord Bingham's 2006 Cambridge Law Journal article on the Rule of Law where he stresses the important role of individual rights-protection and enforcement of international obligations within the rule of law. I argue that seeing international law as existing within the domestic rule of law not only strengthens domestic legal systems and processes but also promotes the rule of international law.

► Perceptions of the Role of Domestic Courts in Enforcing International Obligation
In many cases domestic courts seem reluctant to 'get involved' in international law matters. In the paper I argue that this may be reflective not only a conceptualisation of the rule of law that does not include within it a strong notion of the rule of international law, but also of a judicial discomfort with international law generally and consequently with applying it. Cultivating and participating in what I term "internationalised and internationalising networks" would, I argue, go a long way towards increasing comfort with international law and thereby internationalising judicial legal culture.

► The Existence of an Internationalised Legal Culture
I am also conscious that not only judges but also practitioners must internationalise their conceptions of law in order for the domestic legal system to become internationalised in general. Much the same techniques of knowledge- and network-building can be employed to this end, together with the development of an integrated curriculum in law schools where international and domestic law, instead of being taught as entirely distinct fields, are conceptualised as synergetic where appropriate and applicable.

► Attitudes towards Long-Standing Domestic Practice in Sensitive Areas
At times, judicial resistance to international legal standards (particularly in á la carte internationalist jurisdictions) appears to peak in cases relating to matters of long-standing areas of sensitivity within that jurisdiction itself. In the paper I draw on some Irish examples in particular to make this point, and argue that domestic internationalisation may rely also on the liberalisation of international regimes that have traditionally given domestic legal systems wide margins of appreciation in areas of particular moral or security sensitivity where repressive state action is likely to occur.
I try to sum up my views on internationalisation of domestic courts and my argument that degrees of internationalism are not strogly related to whether a system is dualist or not in the conclusion thus:

The mere fact that a state is dualist does not mean that its courts will fail to be internationalist; that they will fail to refer to international law. Even though an international treaty lacks domestic legal force absent incorporation, it can still have a legalistic function within the state itself by influencing how domestic legal standards are interpreted or, where no applicable domestic legal standards exist, supplementing the domestic legal system. To equate dualism with anti-internationalism is simultaneously to ignore the regulatory capacity of international law and the enforcement capacity of dualist courts in relation to the rule of international law.

The article is currently part of the UCD Working Paper Series in Law, Criminology and Socio-Legal Studies on SSRN, and I am very much interested in readers' views on whether these are sensible areas in which to focus a process of internationalisation. [I am going to assume that most readers of IntLawGrrls are broadly in favour of internationalisation; the paper does not go into whether internationalisation is to be favoured--this, I think, is a question that needs its own consideration!].