WPS 2014-08: National Courts and Interpretative Approaches to International Law: The Case against Convergence

Olga Frishman and Eyal Benvenisti

Should national courts act as agents of the international community and promote a global rule of law based on a hierarchical structure which puts international tribunals – primarily the International Court of Justice – at its apex? For that purpose, must national courts abandon their current practices of divergent methods of interpretation and use the same rules of interpretation of international law that international courts apply? In this chapter we reject this “convergence thesis.” Even when taking only global interests into account, we argue that the convergence thesis is neither necessary nor sufficient to promote collective values; in fact it is counterproductive. Instead we outline a middle road for national courts to take: neither a solipsistic outlook that requires national courts to put national interests above all is appropriate, nor a cosmopolitan attitude that regards national courts as mere agents of the international legal system operating within states. Instead, we offer an approach that is informed by the vision of sovereignty as a trusteeship of humanity, which requires national courts to take global interests into account when interpreting international law. This view does not necessarily imply that national courts should reject international rules of interpretation, but it does imply that they should not aspire to mimic international courts.

Olga and Eyal NCs and Interpretation of IL WPS 8-14 (PDF)