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This article explores the interplay between International Law and domestic law with the view to proposing a model for departing from the traditional pattern of application of international law in domestic courts.
For this purpose, the article first discusses the prevailing paradigm of application of international law on the domestic plane. Since much has been written about this topic, my emphasis is on the shortcomings of this model. To illustrate and exemplify its disadvantageous results, I shall analyse the United States judicial decision in Lisi v Alitalia as a paradigmatic case and I shall contrast it with an analysis in another jurisdiction.
Secondly, I shall analyse existing proposals to depart from the traditional model of application of international law. In particular, I shall analyse the transjudicial model as well as other ideas propounded by feminist, Critical Legal Studies’ advocates and Canadian and United States legal scholars, which have been favourably received by the international legal community. While these proposals share the discontent with the current paradigm, they do not provide a viable solution to overcome its weaknesses. On the contrary, my view is that sometimes these alternatives exacerbate its contradictions and disparities.
Finally, I shall outline the main features of the proposed model for application of international law in domestic jurisdictions. This model calls for ample non-hegemonic participation of the international community in the adjudication process. It borrows its essence from the vision of collective deliberation advocated by transjudicialism theories and draws on the profound discomfort with the International Court of Justice’s application of the intervention procedures. Additionally, it echoes Chinkin’s call for a rupture with a purely bilateral conception of international dispute resolutions. Succinctly, the proposed model calls for participation of interested and potentially affected international parties in the adjudication process of domestic jurisdictions, with a view to providing decisions with a more legitimate and non-hegemonic nature.
This article adopts a socio-legal perspective in analysing both the shortcomings of the traditional method of application of international law and the proposed solution to overcome these shortcomings. It advocates for a radical change in the dominant conception of international law and moves beyond superficial claims as to the ineffectiveness of international law.
The traditional model of application of international law in domestic courts has been dominated by a non-participatory adjudicatory process. This process has been based on a predominantly bilateral conception of dispute resolution and internal methods of interpretation of international sources that are concerned only with an intrinsic examination of the legal texts in light of a systematic order that is considered determinative.[1] Under this conception, the role of the domestic courts is limited to ascertaining in dichotomic terms which normative set (national or international) should be applied to a specific case.[2] When the court opts to employ an international source it often does so under a domestic and often hegemonic rationale, even if it purports to do otherwise.[3] This process has resulted in a widely varied case law and unjustly diverse consequences, even in areas where the law has been amply harmonized.[4] The example of the selected case discussed below, Lisi v Alitalia,[5] illustrates how the domestic court’s principles, rules, methodology and historic characteristics, together with its political view, have shaped a decision with diametrically different results in other jurisdictions, even under identical or similar facts.[6]
My analysis of the traditional method of application of international law in the domestic jurisdiction is grounded upon the premise that there is no rational process of interpretation of legal texts, whether international or national. Hence, the process of adjudication of international legal controversies in domestic courts[7] is a process of resorting, consciously or unconsciously, to the values, objectives, political perspectives, and ideology of the court that decides a legal controversy.[8] Because the process is rooted in a bilateral paradigm of dispute resolution, and consequently without any meaningful participation of the international community, there are no counterweights or barriers to the power of the domestic court. Underlying these premises is the idea that an internal judicial review of the international legal norms by resorting only to the canons of construction generally recognised by the international community[9], such as textual, contextual, objective and purposive interpretation of international norms in a predominantly bilateral and non-participatory adjudicative process, may only lead to results which serve to accommodate national policy to the detriment of obligations assumed at the international level.[10] Thus, the adjudication process in national courts is at best a meaningless task and at worst the mere disguise in technical and legal costumes of the political, economic and social values of the state where the court is located.[11]
To illustrate these views I shall resort to the analysis of a paradigmatic case of interpretation of an international convention by a United States court. This examination is intended as an exploratory and explicative path to highlight the shortcomings of the traditional model of application of international law in the domestic sphere. Thus, this analysis is not based on a quantitative sample of cases. Rather it seeks to identify, in this paradigmatic case, the typical features which the legal and socio-legal literature has identified as recurring in a myriad of cases.[12]
Lisi v Alitalia concerned an accident involving an Alitalia airplane that crashed in Ireland while en route from Rome to New York. The United States Court of Appeals for the Second Circuit rejected a literal and unambiguous interpretation of article 3 (2) of the Warsaw Convention.[12]
The Warsaw Convention[13] created a uniform system that allocates the major risks arising from international carriage to the passenger and consignor by imposing very low limits of liability.[14] For this purpose, the Convention established a fault liability regime for sustained damage in case of the death, wounding or any other bodily injury of the passenger,[15] for the destruction or loss of or damage to baggage and cargo, [16] and for delay.[17] As a quid pro quo for the limitation of liability, the Warsaw Convention shifted the burden of proof so that the air carrier is presumed liable unless it can meet the necessary measures standard.[18] However, the Convention also engineered a formalistic regime, which unified the format and the legal significance of relevant documents. The Convention linked these formalities with the airline’s liability, as its failure to comply with these formal requirements permits the international passenger to escape the limits of liability.[19]
Alitalia argued that its liability was limited as clearly proscribed by the provisions of article 22 of the Warsaw Convention and by the language of article 3, which makes it clear that the only ground for denying the limitation of liability is the carrier’s failure to deliver a ticket. In analysing the validity of Alitalia’s arguments, the Court in Lisi relied on two previous decisions of US domestic courts, the Mertens[20] and Warren[21] cases, thus ignoring the text, object, purpose and context of the Warsaw Convention as well as the practices of other parties to the Convention.[22] In the Mertens and Warren cases, the United States courts had elaborated a test to determine whether the limits of liability were applicable to international airplane accidents when the airline had not fully complied with the documentation requirements of the Convention. The test revolved around the question of whether the ticket was delivered to the passenger in such a manner as to afford him a reasonable opportunity to take self-protective measures. In other words, the test probed to determine if there had been adequate delivery of the ticket to the passenger.[23] However, when the Lisi Court proceeded to determine whether the tickets given by Alitalia met this requirement, it actually analysed whether there was adequate notice instead of adequate delivery. It quoted obiter dicta of the Mertens and Warren cases, where en passant the Courts had stated that the statements were printed in virtually unreadable form. The Lisi Court went even further by maintaining that, even if a passenger could read the printing on the ticket, it was unlikely that he would understand the meaning of its language. Therefore, the Court held that the tickets given by the airline to the passengers did not adequately give notice of the applicability of the Warsaw Convention and thus, contrary to the clear provisions of the Warsaw Convention, Alitalia was not entitled to avail itself of the limitation of liability defences.[24]
Another court, the Canadian Superior Court (District of Montreal), analysed almost identical facts under the same international treaty, in Ludecke v Canadian Pacific Air Lines. The Canadian Court reached a substantially different conclusion. The Ludecke court stated that:
the words of [Article] 3(2) are plain and can admit of no misunderstanding. The absence, irregularity or loss of a passenger ticket will not affect the existence or the validity of the contract of carriage.[25]
Consequently, the Court held that the limitation of liability is forfeited only if no ticket is delivered. The Canadian court emphasised that American courts had ignored the plain meaning of the Convention and “failed to give effect to a precise statement of the law”.[26]
The Lisi Court’s reading of the Convention constitutes a paradigmatic, albeit exacerbated, example of a domestic court analysis of an international treaty. The Lisi Court applied the traditional intrinsic canon of interpretation of international treaties, in a non-participative process, which permitted almost any reading of a text under the facade that the text constrains a certain, correct interpretation[27]. Therefore, the Court arrived at a conclusion which radically deviated from the consensus reached during the negotiation of the treaty and the prevailing interpretation of the Convention by other state parties.[28] The decision of the Lisi Court is a clear reflection of the United States’ active diplomatic policy at the time to change the Warsaw Convention as a result of pressures of the American Association of Trial Lawyers and other United States interest groups.[29] Thus, the Lisi Court translated the demands of the official United States’ policy position into its judicial decision. In this obvious and unmasked position, the Lisi Court blatantly disregarded all interpretations that are more respectful of the consensus arrived at by the international conference and crystallised in the text of the international convention,[30] in order to impose changes to a convention which United States’ diplomacy at the time was unable to achieve.
An internal interpretation of legal sources[31] in non-participatory adjudicative processes, which is the dominant canon of construction of international law (as in the Lisi case), is concerned with an intrinsic examination of the legal texts in light of a systematic order that is considered determinative.[32] Internal interpretation has taken several forms, which include textual, contextual and even purposive interpretations. All these methods of interpretation, albeit in a less systematic form, have long been present in customary international law[33] and have been codified in the Vienna Convention on the Law of Treaties.[34]
These methods share the common feature of trying to elucidate the meaning of a provision by looking at the provision itself or other related circumstances.[35] For advocates of this internal interpretation method, the legal method is itself a form of constraint, but this ultimately derives from the adjudicator’s reading of the text.[36] For this interpretation school, on the domestic plane judges must decide cases within the accepted method of the legal profession. This means that judges must cite precedent and statutory provisions, decide cases in accordance with general principles of law, and provide public justifications for their outcome.[37]
The resort to national courts for the resolution of international disputes has been widely adopted in international treaties, especially in the criminal law realm, as the domestic legal system is capable of supplying the power of coercion that the international legal system usually lacks.[38] But, as warned by Knop, this reinforces the hegemonic nature of the traditional model of application of international law.[39]
On the international plane, little else, if anything, is required from the adjudicators for the issuance of a judgment. For example, the Rules of Court that govern the procedure before the International Court of Justice only require the court to make explicit the reasons in point of law.[40] Undoubtedly, this leaves ample leeway to judges to reach decisions without any constraint, provided that the court offers some legal reason of the question over which it ruled, even if this reason is completely arbitrary or it does not have any legal grounds. The decisions of the highest international tribunal are plagued with examples which clearly show that there is nothing in the interpretation method that constraints its members to reach any type of decision. To illustrate this point, suffice to recall the International Court of Justice’s decision in the Nuclear Tests cases.[41] Here the Court found that France had committed itself by unilateral declarations that it would refrain from further tests, so that the claims of Australia and New Zealand had become moot and no longer had any object.[42] However, there is no legal basis for this decision in the International Court of Justice judgment other than perhaps a vague reference to the principle of good faith. Neither state practice nor general principles reveal a consensus supporting an international obligation to be created by a unilateral declaration.[43]
As the International Court of Justice’s decision in Nuclear Tests and the United States judgment in Lisi clearly demonstrate, there is nothing in the international legal text itself that compels or even suggests that a certain legal provision should be read in a certain way. Nor would the legal method as such prescribe any particular reading.[44] This, as is clearly shown in the analysed examples, renders the text meaningless. The reasonableness theory with which courts dress their decisions does not establish control of the outcome except in the formal sense.[45] Even resort to notions of balancing interests or search for equitable situations can hardly determine a specific result.[46] The use of these notions merely reveals that the grounds for the decision emanate exclusively from the courts’ ideological positions.[47] Therefore, in practice, under the traditional method of application of international law in a domestic court while adjudicating a case with international dimensions, courts do not have any legal constraints to decide the case. This process often results in the court applying, consciously or unconsciously, its own political and legal values and principles.
The lack of meaningful participatory mechanisms for the adjudication of international law disputes leaves countries virtually free to apply the intrinsic interpretation methodology, which often translates into hegemonic outcomes. The participation in the judicial procedures of members of an international convention which are not parties to the dispute with the faculties to intervene, and where their positions are to be taken into consideration for the resolution of the dispute, would constrain the courts to produce a judgment more in consonance with the general consensus of the parties to the convention as crystallised in the text. However, the participatory mechanisms which currently exist in national and international processes are very limited and do not afford non-members to a dispute the possibility actually to shape the outcomes envisaged by the treaty.
On the international plane judicial intervention has a very narrow and limited scope, which has been the object of ample criticism.[48] The Statute of the International Court of Justice[49] provides two forms of intervention: the so-called discretionary or third party intervention (article 62) and intervention as of right or treaty intervention (article 63).
Article 62 permits a state, which considers that it has an interest of a legal nature that may be affected by the decision in a case, to submit a request to the court to be permitted to intervene.[50] In other words, under this form of intervention, the Statute of the Court makes it possible for a state to intervene in a dispute between other states when it believes that it has an interest of a legal nature. Any third state thus seeking to intervene in the case should normally file its request for permission to do so before the closure of the written proceedings in the principal case.[51] The International Court of Justice held that “it is normally by reference to the definition of its interest of a legal nature and the object indicated by the State seeking to intervene that the Court should judge whether or not the intervention is admissible.” However, the term interest is not defined in the Statute of the Court or anywhere else. Article 62 does not provide any basis for defining the scope of the interest.[52]
Article 63 intervention applies whenever the construction of a convention to which states, other than those concerned in the case, is in question. In that case, the Registrar will notify all such states the right to intervene in the proceedings, but if they use this right the construction given by the judgment will be equally binding upon them.[53] Article 63 provides for intervention as of right by other parties to a convention where its construction is in issue before the court. The underlying policy behind this intervention procedure is that, since parties to a treaty are bound by it, all parties necessarily have an interest in its construction. Thus, parties to a convention where its construction is in issue should be given an opportunity to express their preferred interpretation to the Court before that body reaches its decision.[54]
These articles clash with the clear provisions of the res judicata principle contemplated in article 59 of the statute, which reads that “the decision of the Court has no binding force except between the parties and in respect of that particular case”.[55] This has led Chinkin to wonder if intervention is ever possible if this article means what it says.[56]
Several states have presented Declarations of Intervention in terms of article 63.[57] However, applying very narrow parameters for admission of intervention, the International Court of Justice only accepted the intervention in the Haya de la Torre case.[58] In this case, the Court examined the admissibility of the Cuban Government’s intervention. Cuba, invoking article 63, had filed a Declaration of Intervention in which it set forth its views concerning the interpretation of the Havana Convention. Peru contested the Intervention and the Court held that:
[the] Court observes that every intervention is incidental to the proceedings in a case, that, consequently, a declaration filed as an intervention only acquires that character if it actually relates to the subject-matter of the pending proceedings [...] In these circumstances, the point which it is necessary to ascertain is whether the object of the intervention is the interpretation of the Havana Convention in regard to the question whether Colombia is under an obligation to surrender the refugee: as according to the representative of the Government of Cuba the intervention was based on the fact that it was necessary to interpret a new aspect of the Havana Convention, the Court decided to admit it.[59]
In the Libya v Malta case, Italy filed an application to intervene under Article 62 of the Statute. Both parties to the dispute objected to the intervention and the Court held that “if it were to admit the Italian contention, it would thereby be admitting that the procedure of intervention under Article 62 would constitute an exception to the fundamental principles underlying its jurisdiction: primarily the principle of consent, but also the principles of reciprocity and equality of States”. The Court considered that “an exception of this kind could not be admitted unless it were very clearly expressed, which was not the case”. It therefore considered that “appeal to Article 62 should, if it were to justify an intervention in a case such as that of the Italian Application, be backed by a basis of jurisdiction”. Similarly, in Tunisia v Libya, Malta was not permitted to intervene because it failed to demonstrate with sufficient clarity the interest of a legal nature that could be affected by the judgment.[60] The language of Article 62 is not restrictive. It is phrased subjectively and the only requirement is that the state must consider that its interests might be affected.[61] However, the Court interpreted otherwise and restricted the possibility of intervention.
In the Nuclear Tests cases, the International Court of Justice laid down a series of restrictive rules to deny the possibility of intervention. It confirmed the incidental nature of intervention by dismissing the request for intervention where the main dispute was no longer litigated.[62] The Court held that the subject-matter of the proposed intervention must bear a sufficiently close connection to the proceedings for intervention to be permissible. The Court further held that its competence to consider the request for intervention may be based on this nexus, not the normally applicable principle of consent, a conclusion that has been strongly resisted by a number of judges.[63]
The most remarkably restrictive case of denial of intervention concerned El Salvador’s request in the dispute between Nicaragua and the United States,[64] where the Court declared El Salvador’s effort to intervene inadmissible insofar as it related to the jurisdiction/admissibility phase of the case.[65] El Salvador wanted to support the United States in its jurisdictional arguments and to contest the admissibility of Nicaragua’s application. El Salvador based its grounds for intervention on its membership to the Statute of the Court treaty and other treaties of general scope. However, the Court rejected El Salvador’s intervention by holding that its request was premature without any further substantive justification for its decision.[66]
The jurisprudence of the International Court shows that the possibility of meaningful intervention in disputes is seriously restricted to only a handful of situations. This confirms Rosenne’s contention that:
the legislative history of these two provisions [...] suggests that little attention was paid to the implications of their inclusion in the Statute, or to the legal significance of the language used in 1922, and altered ... in 1945. Little wonder that the subsequent evolution of the concept or concepts of intervention [...] has been fraught with difficulties and uncertainties which have still not been dissipated.[67]
Chinkin’s thesis is that bilateralism is no longer appropriate as the paradigm model for the regulation of activities in the international arena.[68] As she herself puts it forward, “all members of the international community share an interest in the outcome of all claims”.[69] Chinkin maintains that the actions of any two states have an impact upon the interests of other states and of other participants in international and municipal arenas.[70] Chinkin states:
the bilateral formulation by parties of cases for presentation before adjudicative tribunals frequently does not take into account the multifaceted interests characteristically at stake in international disputes. International situations that culminate in claims are rarely bilateral, although it may be in the parties’ interests to present them as such. More frequently the actions and reactions of States in their international dealings will impinge on the interests of other participants. [...] Yet when the decision is made to resort to adjudication or arbitration these third party interests are minimised, and the dispute is presented before the tribunal as bilateral.[71]
On the domestic plane, the situation is not very dissimilar. Even if a vast number of states contain norms permitting judicial intervention, it is also very narrow and does not allow ample participation of non-parties, especially those whose only interest in the dispute is the interpretation of an international norm to which they are parties. For example, in the United State,’ intervention at the federal level takes the form of intervention of right and permissive intervention. The former occurs when an applicant claims, in a timely manner, an interest which is not protected by the parties to the dispute.[72] There is a tripartite test to satisfy before a non-party may be admitted as an intervention of rights. This test probes (i) whether there is a significantly protectable interest in the claim,[73] (ii) whether the ability to protect the interest may be impeded or impaired by not allowing the non-party into the case,[74] and (iii) if those already in the case protect the interest.[75]
Intervention of right by those whose interests may be inadequately represented has depended on whether the applicant is or may be bound by a judgment in the action.[76] Before a non-party may intervene as of right, the test is whether the applicant will be bound under the doctrine of res judicata,[77] or (for other courts) if in a practical and realistic sense he or she will be bound by the judgment in that he or she will not be permitted to dispute or deny an issue which would be determined in the action and may be adverse to him or her even if there will not be res judicata.[78]
In permissive intervention, a non-party may be permitted to intervene in an action when a statute confers a conditional right to intervene or when an applicant’s claim or defence and the main action have a question of law or fact in common.[79] In this case, it is up to the discretion of the court to permit non-parties to intervene in the judicial process.[80]
Neither of the intervention alternatives has been conceived or permits members of an international treaty which are not parties to the dispute to voice their concerns and argue their positions with regard to the interpretation of the international treaty unless their positions fall within one of the restrictive situations contemplated in the federal rules.[81]
In recent years, alternatives to the traditional model of application of international law have been propounded in the international legal literature. Feminist, Critical Legal Studies and other jurisprudential perspectives are concerned with a general understanding of interconnections of human activities as they actually occur beyond the constraints of meaningless legal texts.[82] These perspectives have voiced concerns about the deficiencies of the international model and have put forward proposals to overcome the shortcomings of the prevailing model. In this respect, Critical Legal Studies and Feminist scholars have remarked that judges can consciously or unconsciously dictate outcomes according to their own ideology and experiences, both individual and social.[83] For instance, Wilson’s opinion in Morgentaler is a paradigmatic example of how her gender position and understanding of women’s relations can be outcome determinative.[84] In general, judges’ ideologies and social contexts tend to favour their dominant analysis and determine their judgments. According to Critical Legal Studies theorists, judges are socially constructed. Although judges interpret the law in good faith, they do so according to their own social experiences, which are positioned according to their political and economic ideology.[85]
Feminist jurisprudence has long insisted on the disclosure and recognition of contextualisation for any legal analysis.[86] This includes acknowledging all subjective biases, beliefs, expectations and values of the person engaged in legal analysis. Feminist jurisprudence calls for the validation and recognition of personal experience that reflects the individual’s contextualised reality in the form of narratives.[87]
The legacy of non-traditional jurisprudence, such as feminism and Critical Legal Studies, shows that the law is essentially the preference of the adjudicator, who, as arises from our discussion of internal legal interpretation, is rather free to decide the fate of any case.[88] However, the open and full disclosure in the form of narratives does not solve the problem. It merely acknowledges the problem and puts it in the limelight. This acknowledgment does not preclude domestic courts from employing their own values and principles to the detriment of non-hegemonic and harmonic international solutions.
Knop has proposed a model of application of international law based on the persuasiveness rather than on the binding nature of international law, where international law is always applied after a process of translation into the language of domestic courts.[89] Knop considers that the international norms, regardless of whether they have been domesticated or not, provide a relevant and persuasive source for interpretation of the provisions of national law. Based on the Supreme Court of Canada’s non-binding but persuasive application of international law in Baker,[90] Knop’s model attempts to juxtapose the substantive norms of international law with the court’s own idiosyncrasy and understanding of the norms. This juxtaposition is done by freely translating and adapting the international norm to the culture and language of the law of the forum in a way more reminiscent of the role of comparative law than that of international law. For Knop, “the ideal [result of the applied law] is thus neither wholly international nor wholly national, but a hybrid that expressed the relationship between them”. She advocates in favour of resorting to domestic interpretation as a form to legitimise international law through a process of “particularization”[91]
Knop’s proposal shows a clear disregard for interpretations of international norms that respect the international consensus that the norms reflect, and advocates for a translation of those norms into the culture and ideology of the court, even if the international norms are denaturalised of their significance. In other words, the problem with this approach is that it tends to reinforce the hegemonic effects of international law by allowing a national court to apply its own ideology through Knop’s translation process at the expense of the meaning and purpose of the international source.
Slaughter has suggested a model of transjudicial communication where international law is invoked on the domestic plane through a network of decentralised horizontal communication among the courts. She constructs her model upon her observance of the existence of an increasing phenomenon of cross-citation of decisions of foreign courts, reliance of foreign source, and a permanent exchange and dialogue between courts on a wide array of topics[92]. For Slaughter, this transjudicial communication fosters the acceptance and effectiveness of international obligations and permits a collective deliberation by judges from different national legal traditions in an open and interactive dialogue. For Slaughter, this model of transjudicial communication also fosters the dissemination of ideas from courts in one country to foreign and supranational courts. As in Knop’s alternative proposal, the conception of law prevailing in transjudicial communication is based on persuasive rather than on coercive authority.[93]
The weakest aspect of transjudicialism is that it has not developed a notion of persuasion that distinguishes it from political influence and it therefore does not solve the hegemony problem.[94] To use Slaughter’s metaphor, transnational winds blow only in one direction. They originate in highly developed countries with a well functioning legal and judicial system and then appear in developing countries.[95] However, the transjudicialism vision of collective deliberation, if deprived of its hegemonic elements, is an appealing conception of international law which may help overcome most of the problems which the traditional model presents.
As has been analysed above, the non-participatory mechanism of the prevailing models of adjudication, which are based on internal methods of interpretation, does not offer a viable solution for the resolution of international controversies. This mechanism essentially applies the national interests of the state of the forum to the resolution of the controversy, usually intensifying the hegemonic nature of international law.[96] The alternative models proposed in the international legal literature have failed to provide adequate solutions to overcome the weaknesses and shortcomings of the traditional method. However, the transjudicial’s conception of collective deliberation provides a desirable vision of an acceptable solution for the application of international law in the domestic sphere. Unfortunately, transjudicialism alone is incapable of materialising this vision due to the hegemonic consequences that it brings about, especially because it leaves the transjudicial communication to the spontaneous exchanges among courts. Given the inequalities of the resources, prestige and power of the different courts, the transjudicial communication, in practice, has become a unilateral dialogue where the speaking courts are those belonging to highly developed countries and the listening courts are exclusively those that are found in less developed states.
Since there is no uncontroversial theory to avoid this hegemonic phenomenon, I propose a new model of application of international law. This model is based on the full and open participation of all those interested and affected players of the international community in the adjudication process in municipal courts, coupled with an extrinsic method of interpretation of international sources in light of a multilateral conception of dispute resolution. This model tries to rescue the vision and objectives of transjudicialism without reproducing its hegemonic consequences, and it reflects a profound discontent with the International Court of Justice’s narrow conception of judicial intervention.
The proposed model aims at attracting a wide participation of the international community in the adjudication process on the domestic plane with the view to influencing decisions in accordance with interpretations that take into account the views of the community of international actors concerned with the interpretation of the treaty to which they are parties. In this way, the likelihood that the court that adjudicates the case can impose its view is considerably reduced.
Under the participatory model, whenever there is a controversy in a domestic court whose resolution depends upon the interpretation of an international convention, the court should give adequate notice to all parties to the convention.[97] The participation of the parties to the convention should be compulsory for the forum court which should always admit their intervention. Furthermore, there should be clear guidelines for the court to adjudicate a case. These guidelines should include the express obligation for the forum court to take into account and decide in accordance with the prevailing and most persuasive arguments of law as arising from the participation of the intervening states, as well as from the adversarial presentation of arguments made by the parties to the controversy.
By permitting the participation of all of the community of states that form part of the international agreement, this model allows their views and voices to be reflected in all adjudicative decisions. In this way, the transjudicial objective of collective judicial deliberation is materialised without reproducing the hegemonic effects that arise under the current model of non-compulsory participation. This will reduce the mistrust element that derives from the application of international law by a court of another state party to the international convention and will permit a more consistent and non-hegemonic application of international treaties.
This open participation does not completely eradicate the possibility of a court imposing its national policy interests to the detriment of obligations assumed at the international level. However, open participation will openly provide the basis for reducing this possibility to isolated and exceptional cases and for elaborating a consensus in the international community for a democratic and less hegemonic process of settlement of disputes.[98]
In order to strengthen the legitimate value of decisions and to render outcomes more transparent, less hegemonic and more attuned with the spirit of the consensus reflected in the international treaty, I propose the resolution of the dispute in a participatory process. This process should be interpreted in light of extrinsic methodology and through an open disclosure of all the material conditions affecting the adjudicator, as put forward and suggested by proponents of feminist jurisprudence and some of the advocates of the Critical Legal Studies movement.[99] This open acknowledgment of the political and ideological position of the adjudicator will provide the outcome with a more persuasive force. At the same time, it will permit the communication and collective deliberation to flow more naturally and openly.
The traditional model of application of international law in domestic courts has been dominated by a non-participatory adjudicatory process based on a predominantly bilateral conception of dispute resolution and internal methods of interpretation of international sources. This process has given domestic courts ample leeway to apply the national interests of the state of the forum in deciding international disputes. This in turn has translated into hegemonic interpretations of international sources, often in direct contradiction of the consensus reached on the international plane.
Based on an artificial but long-standing bilateral conception of international dispute resolution, the existing participatory mechanisms and their application by the courts, at both the international and domestic levels, are very limited and do not afford non-members to a dispute any meaningful possibility to influence the outcome of the adjudicative process.
The alternative models proposed in the international legal literature have failed to provide adequate solutions to overcome the weaknesses and shortcomings of the traditional method. However, the transjudicial conception of collective deliberation provides a desirable vision of an acceptable solution for the application of international law in the domestic sphere. Nonetheless, transjudicialism alone is incapable of materialising this vision due to the hegemonic consequences that it brings about.
The proposed model of application of international law is based on the full and open participation of all those interested and affected players of the international community in the adjudication process in municipal courts, coupled with an extrinsic method of interpretation of international sources and in light of a multinational conception of dispute resolution. This model tries to rescue the vision and objectives of transjudicialism without reproducing its hegemonic consequences.
[*] DCL (McGill University), Visiting Fellow, Lauterpacht Research Centre for International Law, University of Cambridge. I thank the Lauterpacht Research Centre for International Law, where research for this article took place. In particular, I thank Professor James Crawford, Daniel Bethlehem, Roger O'Keefe, Anne Skinner, Sarah Heathcote and Ruosi Zhang.
[1] Weber, M Economy and society: an outline of interpretive sociology (1978) 657; and Bakan, J Just Words: Constitutional Rights and Social Wrongs (1997) 5.
[2] Knop, “Here and There: International Law in Domestic Courts” (2000) 32 NYUJ Int'l L. & Pol 501.
[3] Zoller, E Droit des relations exterieures (1992); Franck, Thomas M Political Questions/Judicial Answers: Does the Rule of Law Apply to Foreign Affairs? (1992). Benvenisti, “Judicial Misgivings Regarding the Application of International Law: An Analysis of Attitudes of National Courts” (1993) 4 Eur J Int'l L 159; and Slaughter, “A Typology of Transjudicial Communication” (1994) 29 U ich Rev 118.
[4] Miller, G Liability in International Air Transport: The Warsaw System in Municipal Courts (1977) 1.
[5] Lisi v Alitalia-Linee Aeree Italiane, SpA [1966] USCA2 624; 370 F 2d 508, 514 (2d Cir 1966).
[6] Ludecke v Can Pac Airlines Ltd [1979] 98 DLR 3d 52 (Can).
[7] Erades, “International Law, European Community Law and Municipal Law of Member States” (1966) 15 ICLQ 120.
[8] Milovanovic, D Sociology of Law (1994) 40.
[9] Article 31 of the Vienna Convention holds that: “A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. 2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes: (a) any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty; (b) any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty. 3. There shall be taken into account, together with the context: (a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions; (b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation; (c) any relevant rules of international law applicable in the relations between the parties. 4. A special meaning shall be given to a term if it is established that the parties so intended.
[10] Zoller, supra note 3; Franck, supra note 3; Benvenisti, supra note 3; and Slaughter, supra note 3.
[11] Cotterrell, R The Sociology of Law (1984) 216.
[12] Tomasic, R The Sociology of Law (1985) 55; and Todres, “Emerging Limitations on the Rights of the Child: The UN Convention on the Rights of the Child and Its Early Case Law” (1998) 30 Colum Human Rights L Rev 159.
[12] Lisi v Alitalia-Linee Aeree Italiane, SpA [1966] USCA2 624; 370 F2d 508, 514 (2d Cir 1966).
[13] Convention for the Unification of Certain Rules Relating to International Transportation by Air, opened for signature Oct. 12, 1929, 49 Stat 3000[1933] LNTSer 29; , 137 LNTS 11. The Warsaw Convention System refers to the instruments adopted to amend, supplement or modify the Warsaw Convention.
[14] These were not only expressed in terms of monetary caps, but they were also “artfully camouflaged in a thicket of convention articles”. In effect, apart from the limitations contained in article 22, the WC limits recovery only to sustained damages. So, punitive and other non-compensatory damages may not be awarded. The lack of compensation for non-bodily injuries also entails a significant limitation of liability, as well as the concept of accident in article 17. See Hermida, “The New Montreal Convention: The International Passenger’s Perspective” (2001) 26 Air & Space Law 150.
[15] Warsaw Convention, article 17.
[16] Ibid, article 18.
[17] Ibid, article 19.
[18] Ibid, article 20.
[19] Hermida, supra note 15, at 150.
[20] Mertens v Flying Tiger Line, Inc (1965, CA2 NY) [1965] USCA2 123; 341 F2d 851.
[21] Warren v Flying Tiger Line, Inc (1965, CA9 Cal) [1965] USCA9 412; 352 F2d 494.
[22] Miller, supra note 4, at 1.
[23] Warren v Flying Tiger Line, Inc, supra note 22; Mertens v Flying Tiger Line Inc, supra note 21.
[24] Lisi v Alitalia-Linee Aeree Italiane, SpA, supra note 13.
[25] Ludecke v. Canadian Pacific Airlines Ltd 98 DLR 3d 52 (1979).
[26] Ibid.
[27] Bakan, supra note 1, at 5.
[28] Furthermore, it disregards the text of the Convention, which makes it clear that the only ground for denying the limitation of liability in an international flight is the carrier’s failure to deliver a ticket, not the inadequacy of the ticket as suggested by the Court. The interpretation of the Lisi Court also deliberately ignored the main purpose and object of the Convention, which clearly sought to limit the liability of the international airline carrier, as well as its context seen in light of the subsequent practice in the application of the treaty by other parties to the Convention regarding its interpretation.
[29] Hermida, supra note 15, at 150.
[30] Slaughter Burley, “International Law And International Relations Theory: A Dual Agenda”, (1993) 87 AJIL 221.
[31] Weber, supra note 1, at 657.
[32] Ibid.
[33] Restatement (Third) of the Foreign Relations Law of the United States 325.
[34] Sinclair, I The Vienna Convention on the Law of Treaties (1984) 115.
[35] Villiger, Mark E Customary International Law and Treaties: A Manual on the Theory and Practice of the Interrelation of Sources (1997) 327.
[36] Weber, supra note 1, at 657.
[37] Lazos Vargas, “Democracy and Inclusion: Reconceptualising The Role of The Judge In a Pluralist Polity” 58 Md L Rev 150.
[38] Ratner, “International Law: The Trials of Global Norms”, Foreign Pol'y, Spring 1998, 65.
[39] Knop, supra note 2, at 516.
[40] Article 95 states: “The judgment, which shall state whether it is given by the Court or by a chamber, shall contain: the date on which it is read; the names of the judges participating in it; the names of the parties; the names of the agents, counsel and advocates of the parties; a summary of the proceedings; the submissions of the parties; a statement of the facts; the reasons in point of law; the operative provisions of the judgment; the decision, if any, in regard to costs; the number and names of the judges constituting the majority; a statement as to the text of the judgment which is authoritative” (International Court of Justice, Rules of Court (1978) as amended on 5 December 2000, article 95).
[41] Nuclear Tests Cases (Australia v France) [1974] ICJ Rep 253, 267, and (New Zealand v France) [1974] ICJ Rep 457, 472.
[42] Rubin, “The International Legal Effects of Unilateral Declarations,” 71 Am J Int'l L (1977); Lellouche, “The Nuclear Tests Cases”, 16 Harv Int'l LJ 614 (1975); and McWhinney, “International Law-Making and the Judicial Process: The World Court and the French Nuclear Tests Case”, 3 Syracuse J Int'l L & Com 9 (1975).
[43] Rubin, ibid, and Lellouche, ibid, at 2.
[44] For example, as discussed above in the Lisi case, the Court disregarded the clear language of the Convention and actually read in the adequate notice which was not present in the Convention by interpreting that the passenger must have notice of the limitation of liability.
[45] Corten, L’utilisation du raisonnable para le juge international: Discours juridique, raison et contradictions (1997) 5.
[46] Corten, ibid; Frank, J Courts on trial; myth and reality in American justice (1949) 1.
[47] Moran, “A Radical Theory of Jurisprudence: The "Decisionmaker" as the Source of Law -- The Ohio Supreme Court's Adoption of the Spendthrift Trust Doctrine as a Model 1997” 30 Akron L Rev 393.
[48] Chinkin, “Third-Party Intervention Before the International Court of Justice”, 80 AJIL 495.
[49] Statute of the International Court of Justice, article 63.
[50] Ibid, article 62.
[51] Fiji sought permission to intervene in the Nuclear Tests cases, as did Malta in the case concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Italy in the case concerning the Continental Shelf (Libyan Arab Jamahiriya/Malta), Nicaragua in the case concerning the Land, Island and Maritime Frontier Dispute, and Australia, Samoa, Solomon Islands, the Marshall Islands and the Federated States of Micronesia with respect to the Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court's Judgment of 20 December 1974 in the Nuclear Tests (New Zealand v. France) Case. The only one of these applications for permission to intervene to have been granted by the Court was the one filed by Nicaragua.
[52] The express wording of Article 62 is thus not restrictive. It is phrased subjectively and the only requirement is that the state must consider that its interests might be affected. Chinkin, supra note 49, at 495.
[53] A declaration of intervention may be made even though the Registrar has not given the notification, but it should normally be filed before the date fixed for the opening of the oral proceedings relating to the principal case.
[54] Chinkin, supra note 49, at 495.
[55] Statute of the International Court of Justice, article 59.
[56] Ibid, at 2.
[57] In Wimbledon, Poland obtained treaty intervention in the case brought by France, Great Britain, Italy and Japan against Germany in a disputed dealing with the Treaty's Kiel Canal provisions, PCIJ, ser A, No 1, 11 (1923). El Salvador requested intervention in the case concerning Military and Paramilitary Activities in and against Nicaragua, Samoa, Solomon Islands, the Marshall Islands and the Federated States of Micronesia requested intervention with respect to the Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court's Judgment of 20 December 1974 in the Nuclear Tests (New Zealand v. France) Case.
[58] Nuclear Tests (Austl v Fr; NZ v Fr), Application to Intervene 1974 ICJ Rep 530, 535 (Orders of Dec 20).
[59] Haya De La Torre Case Judgment of 13 June 1951, International Court of Justice.
[60] Rosenne, S Intervention in the International Court of Justice (1993).
[61] Chinkin, supra note 49, at 495.
[62] Request for an Examination of the Situation with Paragraph 63 of the Court's Judgment
of 20 December 1974 in the Nuclear Tests (New Zealand v France) Case.
[63] Chinkin, supra note 49, at 495.
[64] Military and Paramilitary Activities In and Against Nicaragua (Nicar v US) 1984 ICJ 215, 216 (Declaration of Intervention, Order of Oct 4).
[65] Murphy, “Amplifying the World Court’s Jurisdiction through Counter-Claims and Third-Party Intervention”, 2000 33 Geo Wash Int'l L Rev 5.
[66] Chinkin, C M Third Parties in International Law (1993) 179.
[67] Rosenne, supra note 61.
[68] Chinkin, supra note 67, at 147.
[69] Ibid.
[70] Schwebel, “Third Parties in International Law. Book Review” (1995) 89 AJIL 835.
[71] Chinkin, supra note 67, at 148. This emphasis on bilateralism encloses an artificial notion that the practices of states, as well as other actors of the international community, necessarily affect the interests of many others.
[72] The US government always has an unconditional right to intervene.
[73] 59 Am Jur 2d PARTIES § 184.
[74] The issue of practical impairment is necessarily one of degree and requires a consideration of the competing interests of the plaintiff and defendant in conducting and concluding their lawsuit without undue complication, and of the public in the speedy and economical resolution of legal controversies (US v City of Jackson, Miss [1975] USCA5 1544; 519 F2d 1147 (5th Cir 1975).
[75] USCS Fed Rules Civ Proc R 24.
[76] 59 Am Jur 2d PARTIES § 184.
[77] Nuesse v Camp 385 F 2d 694 (DC Cir 1967); Ratermann v Ratermann Realty & Inv Co 341 SW 2d 280 (Mo Ct App 1960).
[78] Kozak v Wells [1960] USCA8 84; 278 F 2d 104, 84 ALR 2d 1400 (8th Cir 1960); Ford Motor Co v Bisanz Bros, Inc [1957] USCA8 199; 249 F 2d 22 (8th Cir 1957).
[79] USCS Fed Rules Civ Proc R 24 b.
[80] In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties (USCS Fed Rules Civ Proc R 24 b).
[81] Sonenshein, David A Federal Rules Of Civil Procedure (2002).
[82] Other models include Bechky’s shadow court to hear international treaty cases as a partial solution to the current misinterpretation and mismanagement. The shadow court is a special court at the trial level responsible for all international treaty cases in a certain field. This shadow court would tend to promote uniformity and expediency and due to its high degree of specialisation it would produce judicial decisions which are more attuned with other signatories’ interpretations and international law obligations. However, the creation of shadow courts does not offer a solution to the hegemonic problems and does not guarantee by itself any respect for the decisions and arguments of other parties to a treaty (Bechky, “Mismanagement and Misinterpretation: US Judicial Implementation of the Warsaw Convention In Air Disaster Litigation” (1995) 60 J Air L & Com 528).
[83] Lazos Vargas, supra 38, 150.
[84] R Morgentaler v Queen [1988] 1 SCR 30.
[85] Such socially positioned ideology is the "common sense" that each of us uses to order what we perceive (Balkin, “Ideology as Constraint” (1991) 43 Stan L Rev 1134).
[86] Charlesworth, H & Chinkin, C The Boundaries of International Law: A Feminist Analysis (2000); Charlesworth, “Feminist Methods in International Law” (1999) 93 American Journal of International Law 379; Kennedy, D International Legal Structures (1987).
[87] Raigrodski, “Breaking Out of "Custody": A Feminist Voice in Constitutional Criminal Procedure” (1999) 36 Am Crim L Rev 1301.
[88] Thus, we should seek some conceptual criterion or paradigm by which we can understand the adjudication process, which will be discussed at the end of this article. Allan Hutchinson’s non-foundationalist theory does not provide a solution either. It is based on the premise that judges must engage with the legal materials in good faith and that the outcome might be anything, provided that the judges make some genuine effort to support the conclusions by reference to the rules. In other words, “judges must hold a practical and actual belief that the rules do permit such a course of action” (Hutchinson, “The Rule of Law Revisited” in Dyzenhaus, D (ed) Recrafting the Rule of Law: the Limits of Legal Order (1999) 212-214. Allan Hutchinson’s viewpoint ultimately depends on what the rules might permit, or what the judges perceive in good faith that they permit, which is not very helpful because, as arises from the foregoing, there is nothing in the legal texts and the legal rules that determine any specific outcome or that preclude any specific outcome.
[89] Knop, supra note 2, at 501.
[90] Baker v Canada (Minister of Citizenship and Immigration) [1999] 2 SCR 817.
[91] Knop, supra note 2, at 505.
[92] Slaughter, supra note 3. For Slaughter “[t]hey are all forms of transjudicial communication: communication among courts - whether national or supranational - across borders. They vary enormously, however, in form, function, and degree of reciprocal engagement”.
[93] Patrick Glenn describes persuasive authority as “authority which attracts adherence as opposed to obliging it (Glenn, “Persuasive Authority” (1987) 32 McGill LJ 261).
[94] Knop, supra note 2, at 505.
[95] Slaughter, supra note 3, at 118.
[96] The gist of the proposed model is based upon the teachings of the law reform and participatory theory doctrines. Legal reform is conceived as a multifold dynamic process, which requires a national effort based on a high level of State and private sector participation. Law reform is the instrument for guiding and legitimising the processes of change in society with due account taken of reconciling diverse interests. Participatory theory requires that an act or any other regulation contemplates procedures allowing the industry, those affected by the law and the general public to participate in the elaboration of the regulations (Chinkin, supra note 67; Rosenne, supra note 61; Nolon, “Fusing Economic and Environmental Policy: The Need for Framework Laws in the United States and Argentina” (1996) 13 Pace Envtl L Rev 726; Shihata, “The Role of Law in Business Development” (1197) 20 Fordham Int'l LJ 1578). Under this conception a legal reform must necessarily rest on three basic pillars: (i) adequate rules, (ii) appropriate processes through which those rules are made and enforced and (iii) well functioning public institutions appropriately staffed with trained individuals.
[97] This could include all other interested subjects of international law that have voiced their intention to participate in these proceedings.
[98] Knop’s model tries to solve the hegemony problem by acknowledging the inequalities of the sources of international law and by trying to find a method of application of international law which may freely deviate from the sources. At the very least, this model provides the opportunity for the judicial decision to have a persuasive force so that it can be applied to similar factual and legal patterns in other domestic jurisdictions.
[99] Bakan, supra note 1, at 5.
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