Sources and the Enforcement of International Law

This chapter examines the role of domestic courts in the ideal continuum commencing from sources and ultimately ending in the enforcement of the law in a specific case. It asks whether domestic court decisions are a cause (source) or an effect (enforcement) of international law. The chapter argues that the enforcement of international law is reflexive, rather than reactive. There is thus no real continuum, with domestic courts occupying this or that position on it. Rather, domestic court decisions are both part of the cause and of the effect of international law. The enforcement of a rule of law in a specific case constitutes, in accordance with the sources doctrine, yet another brick in the wall of that same ever-changing rule. And given the increasingly important position that domestic courts are assuming in the enforcement of international law, they become ever more important agents of the development of that law.

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