Agora 2: National Law as a Generator of International Law

National law, both statutory and case-law, can influence international law in many ways. National law may serve as a template for treaties or lead to the development of customary law and, most importantly, national law may evidence general principles of law. Classic examples are the impact of the US Foreign Corrupt Practices Act on the OECD Anti-Bribery Convention or the Truman Proclamation’s influence on the customary international law of the continental shelf. A particularly fascinating role is played by domestic courts; their jurisprudence may take on a special law-making role as relevant state practice and, often at the same time, as opinio iuris evident in many immunity and extraterritorial jurisdiction cases.
This agora will address the various ways that national law and jurisprudence influence international law. What is the particular role of domestic courts? Does this role depend on national traditions? Is it shaped by transnational judicial dialogue or are courts in different states acting as isolated agents? How have international courts incorporated national law or national law concepts in their reasoning? How do international courts and tribunals ‘select’ the domestic case law on a particular matter?