Westphalia, dualism and contextual interpretation : how to better engage international law in domestic judicial decisions

Abstract

The matrix within which the states operate and international affairs are conducted continues to be based on the Westphalian model, with its external-internal dichotomy. Consequently, the constitutional mandate of domestic courts is to interpret and apply domestic law, not international law. It is if, and to the extent that national legal rules of reception allow international law to be part of national law that the latter may have an impact domestically. This dualist logic is challenged by globalisation and inter/supra/transnational governance. Question: What are the changes required in the methodology of interpretation and application of law that would allow judges to better contribute to the actualisation of such normative inter-permeability? The paper argues that only a slight adjustment in the methodology of interpretation and application of law is needed for domestic courts to better engage international law. Indeed, a reinforced argument of contextual interpretation constitutes the appropriate means to operationalise a systematic role for international law in domestic judicial decision-making.