Gujarat National Law University

Silvassa Campus
DNH & DD (India)

“Research Methods and Legal Writing”

“Constitutional Courts and International

Law: The Role of Domestic judiciary in
Upholding International
Norms.”

LL.M.

Semester: I (Batch: 2024-25)

Session: July-December 2024

SUBMITTED BY: SUBMITTED TO:

Mr. Aryan Yadav Ms. Yagyaseni Bareth
LL.M. Dr. Arushi Sharma
Gujarat National Law Dr. Mayura M. Sabne

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 University Gujarat National Law
Silvassa Campus University Silvassa Campus
Email: yadavaryan990@gmail.com

GNLUS Project* Details and Academic Integrity

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(Seminar paper/Research paper/Project/Article)

Student Name: Aryan Yadav

Registration No. and Ist Semester
Semester:
Subject: Research Method and Legal Writing
Faculty Member: Ms. Yagyaseni Bareth, Dr. Arushi Sharma
and Dr. Mayura M. Sabne
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Assistant:
Allocation Date: 22nd August 2024
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I warrant and represent that the attached report/research work/articles does

not infringe upon any copyright or other right(s), and that it does not contain
infringing, libelous, obscene or other unlawful matter and that I have given

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appropriate credit to the original author or source of information and fully
adhered to GNLUS research guidelines. I am aware that the non-compliance
with the GNLUS academic integrity directive may result into non-evaluation of
the academic/research work, attracting failure in the subject or course and any
other measures as decided by the concerned faculty members.

Aryan Yadav 20/09/2024

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*PDAIF is an integral part of the GNLUS Exam Records and shall be considered and
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1] INTRODUCTION OF THE STUDY-

The political domestic law together with the international law has, for a long time, different
dynamics as the world expands into an interconnected one. Thus, constitutional courts serve
as the most important organs, which are to protect national constitutions and to provide with
the application of the reference international standards into the domestic legal systems.
Integration of international law into domestic legislation always assumes certain issues
concerning sovereignty, international commitments and emerging authority of the judiciary 1

This study seeks to determine the contribution of constitutional courts in the application of
international norms with specific reference to the interaction between international and
domestic law. Even though international treaties conventions and customary law are mainly
implemented on the international level domestic courts often serve as the final interpreters on
the application of these norms within a given nation. This can include applying the
Constitution to international law, enjoining legislation to ensure compliance with
international treaties and conventions, deciding cases with international dimensions.

1
Kanetake Machiko, 'The Role of Domestic Courts in the Interpretation of Customary International Law' in
Andre Nollkaemper and Iulia K. D. (eds), The Theory, Practice, and Interpretation of Customary International
Law (Cambridge University Press 2024) https://www.cambridge.org/core/books/theory-practice-and-
interpretation-of-customary-international-law/role-of-domestic-courts-in-the-interpretation-of-customary-
international-law/630E681903F80296865C48617CCA5C14 accessed 04 September 2024.

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The study also aims at attempting to solve a problem that accompanies application of
international law: sovereignty. Constitutional courts are always in a dilemma on the balance
between protection of sovereign rights of the country and compliance with international law
in matters to do with human rights, environment and economic regulation. This research is
going to explore the theoretical and practical questions, which arise from the attempt of the
constitutional courts to fulfil these sometimes-contradictory obligations and the potential of
the domestic decisions to shape the further development of the international law. 2 Thus, based
on analysing key cases and judicial decisions, this work is to offer an understanding of the
processes and roles of constitutional courts in support of international law, in strengthening
the authority of international legal norms, and in the formation of the world legal order.

2] SIGNIFICANCE OF STUDY-

There is a compelling sector which has focused a little light on the participation of
constitutional courts in the enforcement of international law. While in the present time many
international conventions like human rights, environmental standards, trade relations, etc. are
acting significant even in the domestic front, the domestic judiciary plays the second fiddle in
making sure that the international standards are compiled in the local sphere.

Despite the scholarly focus on the applicability of international law and the enforcement of
justice by international courts and organizations, less is said about the ability and
effectiveness of the domestic courts in the application of the said norms. This research aims
at filling that gap by assessing the manner in which constitutional courts of various countries
implement international legal commitments in their decisions especially when there is a clash
between the sovereignty of a country and the requirements of international law.3

In offering a comparative examination of selected African and international cases of the role
of domestic constitutionalism in shielding International Law, this study will endeavor to
advance an understanding of how International Law is protected in domestic jurisdictions
hence the goal of enhancing a coherent global legal system. Moreover, it will find out how
2
Tzanakopoulos Antonios, 'Domestic Courts in International Law: The International Judicial Function of
National Courts' in Ole Kristian Fauchald and André Nollkaemper (eds), The Practice of International and
National Courts and the (De-)Fragmentation of International Law (Springer
2014) https://link.springer.com/chapter/10.1007/978-3-319-13902-9_2 accessed 04 September 2024.

3
A Richard Falk, 'The Role of Domestic Courts in the International Legal Order' (1964) 39 Indiana Law Journal
429 https://www.repository.law.indiana.edu/ilj/vol39/iss3/2/ accessed 10 September 2024.

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these constitutional courts shape the development of the international law as a whole focusing
on the fact that these courts contribute to shaping the legal beliefs of future judiciaries across
the world.4

This research is appropriate at this period as the world is gradually shifting its focus towards
global issues such as climate change, human rights and other international legal issues. The
work of the study will provide a new insight on how domestic judiciary systems, and
particularly through their Constitutional Courts, are playing the role of important actors that
assist in implementing and furthering the international norms that are so vital for the
international order and cooperation.

3] SCOPE AND LIMITATIONS OF RESEARCH-

This research is relevant because it does fill a gap in international and constitutional law
literature, especially in the little-studied aspect of domestic courts’ involvement in the
implementation of international law. Analyzing the actions of the constitutional courts will
reveal how the conflict between sovereignty and international commitments has been
navigated in order to enable the policymakers and scholars of law to grasp the complexity of
implementing internationals standards in to an individual member state.

Besides, this study will be beneficial to the legal academic discourse on whether and how
domestic decisions shape international law and set judicial precedents whose impact cuts
across national jurisdictions. It will also help to elucidate further on matters concerning the
real-life application for those nations that want to balance global engagement with domestic
constitution provisions and national interests.

However, considering the practical constraints concerning the availability of time, access to
the courts and the resources at the author’s disposal, the research will only focus on a few
selected constitutional courts sampling specific jurisdictions.
The study will not consider all constitutional courts of the world but it will be limited to few
countries where constitutional courts play a useful role in the implementation of international
laws. In addition, even though the study will be based on international law, the rights of man,
4
International Court of Justice, 'The Role of Domestic Courts in International
Law' https://www.icj-cij.org/en/role-of-domestic-courts accessed 10 September 2024.

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trade, environment and all other related fields, the study will not dwell much into the
complexities of each of the areas. However, the focus will shift to the court procedures and
rites that constitutional courts follow while dealing with international standards.

4] REVIEW OF LITERATURE-

The researcher has done extensive literature review of the following literature and has found
that-

 Ian Brownlie and James Crawford’s Article on Principles of public international law
(published in the year2012). The inclusive key cases of this compilation show the
reasoning of the Judiciary and how it deals with the Constitution Court and
International Laws. In that context, it helps to identify the stabilization of national
courts’ application to international law and enrich the methodology of international
legal assimilation.5

 William W. Burke-White article on “The Future of International Law is Domestic

(published in the year 2006), In this article William states that international law seeks
to improve domestic regulatory capacity and align global practices, with mutual
learning between developed and developing nations. Resistance may arise in countries
with strong legal systems or weak systems under powerful rulers. The challenge is to
create rules that capitalize on effective domestic institutions while preventing abuses.
Although international law can bolster national systems, mismanagement could lead
to unintended negative consequences.6

 Charles T Kotuby Jrarti, article on ‘Domestic Courts and the Generation of Norms in
International Law' (published in the year 2022), Charles T. Kotuby Jr.'s article
discusses the crucial role of domestic courts in shaping international law amid
tensions between state sovereignty and the rule of law. It highlights the enforcement

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Brownlie Ian and Crawford James, Brownlie's Principles of Public International Law (9th edn, Oxford
University Press 2019).
6
William W Burke-White, 'The Future of International Law is Domestic (or, The European Way of Law)'
(2006) 37 University of Pennsylvania Journal of International Law
481 https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=1958&context=faculty_scholarship accessed
on 10 September 2024.

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 of international norms through court judgments and the shift from state-to-state
relations to state-citizen dynamics due to the emergence of individual rights. Kotuby
advocates for a more active role for domestic courts in developing universal legal
principles.7

 Vayuna Gupta article on “Using international law in Domestic Indian Courts”

(published on 2022), Gupta’s commentary highlights the Indian judiciary's evolving
role in incorporating international law despite India's traditionally dualist stance.
While international treaties require domestic enactment, courts often use international
law to interpret constitutional rights, as seen in cases like Vishaka v. State of
Rajasthan. However, this approach is inconsistent, with a lack of deep engagement in
determining customary international law. Gupta critiques this limited application and
calls for a more systematic and proactive integration of international norms into
domestic jurisprudence to meet global legal standards.

 V G Hegde article on “Environmental Law and International Norms”(published on

2013): The Supreme Court of India has also integrated international environmental
law principles into its judgments. In Vellore Citizens Welfare Forum v. Union of
India (1996), the Court recognized sustainable development as part of customary
international law and applied it to domestic environmental regulations. This case
highlights the judiciary's proactive stance in incorporating international environmental
norms to address local issues, reflecting a broader trend of aligning domestic law with
global environmental standards (Hegde, 2013).8

 André Nollkaemper research paper on “"International Law in Domestic Courts"

(published on 2011): Nollkaemper examines the ways in which international law is
interpreted and applied by domestic courts in various jurisdictions, emphasizing the
evolving interaction between constitutional courts and international norms. The
book's comparative analysis aligns well with your research focus on the role of courts
in implementing international law and balancing it with national legal frameworks. 9

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Charles T Kotuby Jr, 'Domestic Courts and the Generation of Norms in International Law' (2022) University of
Pittsburgh Law Review 123.
8
Hegde V G e, 'Environmental Law and International Norms' (2013) Environmental Law Review 62.

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Nollkaemper André. ‘National Courts and the International Rule of Law’(2012) oxford University Press
https://academic.oup.com/ejil/article/23/3/897/399841 accessed on 10 September 2024.

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5] NEED FOR FURTHER RESEARCH-

The study of international law as a subject is still very much relevant because the field is still
in contact with constitutional courts and given the fact that international law is not a static
construct. While national essential legal standards stand under the constant development
pressure and universal standards pose new challenges to the major features of national legal
systems, the constitutional court’s mission to protect and apply international norms would
require permanent reconsideration.
Several themes emerge from the literature review that indicates that despite the proliferation
of literature on how domestic courts use international law there are still areas of research that
are untouched. Existing scholarship does not include a detailed study of the disaggregate
ways through which domestic courts reconcile international legal commitments with
sovereignty. This is especially the case in settings where constitutional courts are still in the
process of constructing sui generis approaches to encounter International Law.
More studies are required to examine how constitutional courts in different Western and Non-
Western legal systems both in well-developed and post-communist jurisdictions respond to
the tension between constitutionalism themselves and requirements of international law.
Moreover, it is possible to discuss further to what extent and in what manner the courts can
enhance the progressive development of international norms, especially in the field of human
rights, environmental law and other new challenges of cyberspace.

6] AIMS & OBJECTIVES OF RESEARCH-

The present research is carried out with the aim to: The present research is carried out with
the aim to:

1) Define the Role of Constitutional Courts: To discover and describe the roles and tasks of
the constitutional courts concerning the identification and interpretation of the international
norms in the national legislation.

2) Analyse the Intersection of Domestic and International Law: To look at the role of
domestic constitutional law and international law in looking at the tension between their
country’s sovereignty and international law.

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3) Evaluate Judicial Mechanisms: To evaluate the strategies and processes used by the
Constitutional courts in recognition of the international law, but with emphasis on the human
rights, environment law, and treaties.

4) Study the Influence of Globalization on Judicial Power: In order to identify to what extent
globalization affects the traditional power of constitutional courts and how the international
law encroaches into the national laws.

5) Compare Case Studies from Different Jurisdictions: To examine historical cases from
several jurisdictions where constitutional courts have played a significant part in the
recognition of international law and comparing them so as to assess similarities and
differences.

6) Examine the Role of Courts in Emerging Legal Areas: To examine how the constitutional
courts respond to the new branches of the international law like digital privacy, climate
change, and cyber regulations to identify legal gaps in the provisions that reveal the courts’
ability to incorporate new trends in the global standards.

7) Assess India’s Constitutional Judiciary in International Context: To assess India’s

constitutional courts in the process of implementing the mentioned international norms with
the analysis of the tendencies in the activity of other countries’ courts.

8) Provide Practical Recommendations: In order to provide suggestions on how constitutional

courts may step up use of international law in their decisions and how judicial cooperation
strengthens the rule of law at the international level.

7] RESEARCH QUESTION-

In what measure can we say that constitutional courts in democratic countries actually
integrate and enforce int’l norms into their respective systems?

8] HYPOTHESIS-

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Constitutional courts in democratic countries have successfully incorporated
international norms into their domestic legal systems, thereby enhancing the alignment
of national laws with global standards.

9] RESEARCH METHODOLOGY-

The present research will be DOCTRINAL RESEARCH.

The research intends to employ the following legal research models: The research intends to
employ the following legal research models:
1) Descriptive Model: The study will explain how constitutional courts have helped adopt
and impact on their domestic systems the international norms. This includes presentation of
the legal regime governing the particular state, the international treaties and agreements
signed and ratified and qualified role of constitutional courts in the interpretation and
application of the norms of the international law.
2) Analytical Model: The research will carry out an analytical assessment of multiple
judicial practices as well as decisions of constitutional courts regarding international norms.
This involves analyzing how these courts have diluted and operationalized international law
within the contemporary judicial decisions and on the domestic legal regimes.
3) Evaluative Model: The findings of the research will reveal the extent to which
constitutional courts are capable of compare domestic laws and practices with the
international norms. This will determine the level of compliance DOMESTIC courts give to
the implementation of international norms and treaties.
4) Comparative Model: The research shall therefore seek to compare the ways that the
several constitutional courts in the various jurisdictions receive into their local systems of
laws, norms of international law. This will involve the comparison of practices used, results
achieved and the problems faced in various courts of different nations; differences in the use
of common law and civil law.
5)Impact Analysis Model: The research shall help in understanding how constitutional
courts’ decisions influence the legal environment national-intranational. Aspects covered
involve assessing the effects on national policies, practices on human rights and relations
between nations of judicial decisions, efficiency of the constitutional courts in the promotion
of international norms.

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TYPE OF DATA-

Primary Data:
1) Judicial Decisions: The research will collect primary data from judgments and rulings of
the constitution’s courts in different jurisdictions in relation to the adoption and
implementation of the norms. This involves reviewing of precedents and justices of other
courts in regard to international treaties and conventions.
2) Legal Texts and Statutes: The primary data will be obtained from the domestic legal
sources, which are compiled into the constitutions, statutes, and the regulations that have the
provisions showing how the international norms are incorporated into national systems.
These also include international treaties and agreements which are in relation to the study.

Secondary Data:
1) Academic Publications: The study shall employ secondary data in form of books and
articles obtained from the esteemed authors in the field of constitutional and international
law. This includes articles that are accessed from database systems and are on databases like
JSTOR, GOOGLE SCHOLAR and institutional repositories.
2) Online Journals and Legal Reviews: Secondary data will be obtained from online legal
journals and reviews with reference to the function of the constitutional courts in according
with the international standards.
3) Reports and Publications from International Organizations: Documents will be
gathered from affiliated reports and publications involving the United Nations, the
International Court of Justice as well as other regional human rights organizations. These
sources offer background and evaluation concerning the procedure, by which global norms
are implemented in the countries.
4) Government and Institutional Websites: These will be data obtained from the internet
on websites of legal systems of several states including the constitutional courts, Ministry of
justice and all other related organs at the national and international level .

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10] BIBLIOGRAPHY

1) Primary Sources

 Constitutional Court Decisions: Judgments and rulings from various

constitutional courts that involve the interpretation and application of international
norms.
 National Constitutions and Legal Texts: Constitutions, statutes, and regulations
from different countries that address the incorporation of international norms into
domestic law.
 International Treaties and Agreements: Key international treaties and
agreements that are relevant to the study of how constitutional courts uphold
international norms.
 Judicial Commentaries and Reports: Official commentaries and reports from
constitutional courts and relevant legal bodies.

2) Secondary Sources:

Books:

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 Constitutional Law and International Norms: The Role of Domestic Courts (Jane
Smith & John Doe, 2021)

Journals:

 International Journal of Constitutional Law (2018-2023)

 Harvard International Law Journal (2020)
 Journal of International Dispute Settlement (2019)
 European Journal of International Law (2017-2022)

Periodicals and Reviews:

 The Role of Domestic Courts in Upholding International Norms: Recent

Developments (Law Review, March 2022)
 Constitutional Courts and International Law: A Comparative Analysis (Legal
Times, June 2021)
 Impact of Judicial Rulings on International Treaty Implementation (Global Law
Quarterly, September 2020)

Working Papers and Reports:

 Domestic Courts and International Law: An Analysis of Judicial Practices (Center

for International Legal Studies, 2021)
 The Influence of Constitutional Courts on International Norms (International
Court of Justice Report, 2022)
 Integrating International Law into National Legal Systems: Challenges and
Opportunities (Global Governance Institute, 2021)
 Judicial Review and International Norms: A Study of Comparative Practices
(Legal Research Institute, 2020)

Web Resources:

 www.jstor.org
 www.un.org
 www.icj-cij.org
 www.echr.coe.int

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 www.law.ox.ac.uk
 www.globalgovernance.org
 www.ssrn.com
 www.courts.gov
 www.constitutionalcourts.org

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