Background
Since 2021, the Faculty of Law at the University of Oslo has pursued a research initiative on the interface between international and national law. The initiative explores how international law is currently being implemented and how implementation can be improved in national legislation, administration, and case law. As part of this initiative, the Faculty’s Research Group on International Law has received funding from the Research Council of Norway to develop an academic network addressing the Impact of International Law on National Law (IntNatLaw).
Traditionally, the relationship between domestic law and international law has been approached from the perspective of a binary distinction between monism and dualism. This binary approach has increasingly been exposed as lacking in explanatory force, and IntNatLaw’s activities build on the realization that the interrelationship between international law and domestic law in the 21st century is more complex and dynamic. At best, dualism and monism offer a starting point, modified by constitutional principles for the separations of powers, the emergence of doctrines for consistent interpretation or presumptions of compatibility, various doctrines and techniques of application that
serves to tame the effect of international law in the domestic context, or the implementation of international law via legislation. The precise relationship between domestic law and international law is variable rather than binary, being moved by various factors, normative concerns, processes and techniques creating openings for international law and setting up barriers against such openings.
IntNatLaw hosted its opening annual conference in Oslo on 16−17 November 2023, entitled “Beyond monism and dualism: The relationship between international and national law in the 21st century”. Building on previous events in Oslo and in Paris, it explored this topic from an international and a Nordic perspective, demonstrating how the starting points of monism and dualism are modified by constitutional and legislative implementation of international law in a domestic context.
IntNatLaw intends to pursue two book projects within the project period: An edited volume in English and a subsequent edited volume in Norwegian. Both volumes will address the constitutional balance of powers in the domestic application of international law. This issue is of contemporary relevance in the Norwegian legal context, and it appears also to be underexplored from an international or a
comparative perspective. By pursuing an international volume first, our intention is that the findings from this volume can be used to analyze the issue more in-depth from a Norwegian perspective.
The proposed roundtable will bring together international experts to develop a framework for the international volume.
The proposed volume needs to find its place in the intersection between three different strands of international legal literature. First, previous studies have analyzed domestic implementation of international law in terms of the role of domestic courts (Nollkaemper (2011). National courts and the international rule of law. Oxford University Press; Aust and Nolte (2016). The interpretation of international law by domestic courts : uniformity, diversity, convergence, Oxford University Press;
International Law Association (2016). Principles on the Engagement of Domestic Courts with International Law (Final report); Nollkaemper, Reinisch, Janik and Simlinger (2018). International law in domestic courts : a casebook, Oxford University Press). Second, existing literature discusses domestic implementation of international law as aspects of “foreign relations law” (e.g. Bradley (2019). The Oxford Handbook of Comparative Foreign Relations Law, Oxford University Press; Aust and Kleinlein, (2021). Encounters between Foreign Relations Law and International Law: Bridges and Boundaries, Cambridge University Press). Third, studies explore how national authorities interpret and apply international law (Roberts, Stephan, Verdier and Versteeg, (2018). Comparative International Law, Oxford University Press; Aust, Krieger and Lange (2024, forthcoming). Research Handbook on International Law and Domestic Legal Systems, Edward Elgar).
We wish to explore the relationship between the legislative, the executive, and the judiciary, in the domestic application and implementation of international law. Within this theme, several questions arise. These questions may be grouped into three main categories: First, does international law itself regulate how different branches of government should contribute to the domestic implementation of international law? Second, how do different branches of government contribute to the development of a domestic regulatory framework for the implementation of international law? And third, how do different branches of government operate within this regulatory framework?
More concrete issues include (but are not limited to):
- International implementation obligations, namely rules (particularly in treaties/treaty regimes) specifying how international obligations shall be implemented domestically;
- Domestic implementation of international law in constitutions and legislation, and potential interpretative difficulties arising from different implementation techniques;
- Interpretation of domestic law in light of international law, including domestic principles of interpretation such as the principle of consistent interpretation;
- Interpretation of international law in a domestic context: what is the role of the legislator, executive organs and domestic courts;
- Who has the final authority to determine the content of domestic law when this is relevant in internationally contentious issues;
- How is the relationship between branches of government affected by the character of international legal norms (ie., treaty obligations, customary law, international soft law);
- Who decides in a domestic context whether an international treaty obligation is considered as self-excecuting;
- Are domestic courts bound by interpretation of international law by parliaments and the government, or to what extent should such interpretations be accorded weight;
- What is the role of the “political question” doctrine in restricting judicial review;
- Are lower courts bound by interpretation of international law by domestic apex courts;
- How do domestic legal systems solve norm conflicts between provisions of domestic origin and provisions stemming from international law?
The roundtable will use experiences from domestic jurisdictions to formulate pertinent questions more precisely. The roundtable will also provide a basis for structuring the proposed volume, including finding a balance between domestic case studies, comparative studies, and cross-cutting themes.
Participants at the roundtable will be invited to submit a 2-page summary of relevant dilemmas and challenges in their domestic jurisdictions no later than 22 November. The roundtable will be structured around the submitted responses. Participants will be expected to contribute actively to discussions, and selected participants may be invited to prepare individual presentations on relevant topics.
All participants will be invited to contribute a chapter to the proposed volume, but participation at the roundtable does not entail a commitment to do so. Contributors to the volume will be decided in a separate process shortly after the roundtable.
Program
09:00 – 09:15 Introduction
Today’s ambitions and proceedings.
09:15 – 10:15 Session I: International implementation obligations
How is the relationship between branches of government affected by the character of international legal norms (ie., treaty obligations, customary law, international soft law)? To what extent do treaties require action from specific national branches of government? When does international law consider treaty obligations as self-executing?
10:15 – 10:45 Coffee break
10:45 – 11:45 Session II: The role of the executive in relation to other branches of government
What is the interaction between the executive, the legislature and the judiciary in treaty negotiations, accession, representation in cases before international courts, exit? How do acts of the executive influence the position of other branches of government in the implementation/interpretation of international law?
11:45 – 13:15 Lunch
Din Deli, Kristian Augusts gate 15–17 – a five-minute walk from Stallen.
13:15 – 14:15 Session III: The role of the legislator in relation to other branches of government
What is the significance for other branches of government of incorporating international law partially or en bloc at the constitutional or legislative level? Methods of incorporating treaties in legislation, and its effects on the other branches.
14:15 – 14:45 Coffee break
14:45 – 15:45 Session IV: The role of the judiciary in relation to other branches of government
What is the significance of interpretations of international law in the preparatory works of legislation? What is the significance of (consistent) executive policy on the interpretation/application of international law? What is the scope of a “political questions” doctrine?
15:45 – 16:00 Moving forward
Further process towards an edited volume.