Concluding Observations

Summary

Having presented the preceding thirteen case studies of how domestic courts apply, or do not apply, international law in various post-conflict and transitional settings (specifically, in Afghanistan, Bosnia and Herzegovina, East Timor, Iraq, Nepal, the Russian Federation, Rwanda, Serbia, and South Africa, as well as two cross-cutting studies), the time has come to take stock and draw some conclusions, while duly acknowledging the heterogeneity of the legal systems and post-conflict situations studied. We structure these Concluding Observations under the headings that we identified in the Introduction, and use these to integrate the lessons learned from the case studies.

In section 1, we provide an overview of the types of ‘constitutional moments’ that allowed for an increased role of national courts in the application of international law in the various situations studied. In section 2, we discuss the form and substance of domestic courts’ empowerment to apply international law in the different settings. In section 3, we review the role of the various actors involved in receiving or importing international law. Any concerns of the reader that an overly optimistic picture is presented by this overview of empowerment techniques should be immediately assuaged in section 4, which addresses the various limitations of applying international law in domestic courts which may have grown more accustomed to a violent and authoritarian political order than to a robust rule of law. Finally, section 5 discusses the effects and legacy of international law implementation by domestic courts in post-conflict or transitional situations. It questions whether the application of international law really makes a difference for post-conflict societies, and whether international intervention produces any lasting effects in terms of rule of law entrenchment or broader societal stabilization.

It is to be stressed up front that the conclusions in section 5 concerning recent changes in the countries studied are by necessity tentative and can only be assessed conclusively over a longer time-horizon. Also, we do not suggest that the gap between official support for international law and the actual application of international law by domestic courts is a phenomenon peculiar to post-conflict societies.