The Role of Domestic Courts in Ascertaining and Shaping Public International Law
Domestic courts are usually seen as providing an auxiliary service in determining rules of public international law in so far as their decisions are regarded as subsidiary sources of international law in the sense of Article 38 (1)(d) of the Statute of the International Court of Justice. Although the language of this provision does not expressly refer to domestic courts it is nowadays largely accepted that it is not restricted to international ones. In addition to their role of providing evidence for the existence of international law, domestic courts can also have a more direct impact on international law. Their decisions are acts of state organs and as such potential elements of state practice as well as evidence of opinio juris und thus partake in the creation and consolidation of international law. Further, national courts may sometimes step into the shoes of their international counterparts to enforce international law, in particular, where the latter are non-existent or not available. It is this triple role of domestic courts which will be analysed on the basis of a number of practical examples, demonstrating that domestic courts are recipients, shapers and agents of international law.