Here and There: International Law in Domestic Courts

Noting that in the growing discourse on domestic implementation national-level courts are reduced to simple enforcers of international law, this Article explores the interpretive trends and theoretical possibilities of using international law in judicial reasoning. Using the Canadian case of Baker as an illustration, the author explores the traditional model of international law in domestic courts, which focuses on bindingness and all-or-nothing application, and transjudicialism, in which the authority of international law is persuasive rather than binding. She suggests that these models need to be questioned because they are too simple and they overlook the possibility of domestic interpretation as a means to particularize and justify international law. She concludes that: "One way to begin this inquiry is, ironically, to make foreign the law that international lawyers have long tried to make familiar. By recognizing the similarity of international law and foreign law as the translation of norms from "elsewhere", we not only see the shape of the problem more clearly, but also are able to learn from comparative law's theorizing of solutions."