About The project
Project 10-ECRP-028, European Collaborative Research Projects in the Social Sciences (ECRP) – ECRP VI (2010)
Project Leader: Amsterdam Center for International Law, University of Amsterdam
This project is funded by the European Science Foundation (ESF) as a European Collaborative Research project in the Social Sciences (ECRP). The main cooperating partners are the universities of Amsterdam, Berlin (Humboldt), Lodz, Oslo and Vienna. The universities of Salamanca, Siena and Tel Aviv are associated partners.
The project contributes to our understanding of how national courts engage in the interpretation, application and development of international law through transnational judicial ('court-to-court') dialogue. The project is induced by the widespread exchange of views on the interpretation of international standards between states and regions. Domestic courts are at the heart of this development. They engage in 'judicial dialogues', by referring to decisions of international and foreign courts. Transnational judicial dialogues can strengthen the rule of law, allowing domestic courts to arrive at the best responses to shared problems and clarifying shared normative frameworks. The phenomenon of judicial dialogues raises several questions, however. Unless conducted in accordance with sound criteria, transnational dialogues could undermine the role of courts as guardians of the rule of law. The project provides a systematic empirical analysis of the extent of judicial dialogues on international law. It uncovers methodologies of courts, as well as their motivations to engage in such dialogues. It identifies 'best practices' for determining when and how domestic courts should rely on foreign and international interpretations. The project provides critical information to scholars, practitioners and policymakers in the field of the rule of law and human rights.
Main aim of the Project is to explore:
- the role of domestic courts in rule of law protection through international law, focusing especially on "transnational judicial dialogues" about international law;
- trends in judicial dialogues: how often and in what situations courts engage in dialogues with international or foreign courts;
- practical challenges to dialogue, such as access to judgments, translations, commentaries, etc, preventing courts from learning how courts elsewhere treat comparable questions;
- how judicial dialogue impacts international law and whether it should, e.g. when dialogue is driven by personal attitudes of judges, the frequency with which courts are seized of international matters, or procedural and regional differences.
In addition, the research will result in the production and analyses of case-reports on the application of international law by domestic courts, with a view to increasing the insight into the practices of domestic courts and to make that practice available to courts elsewhere.
The head of the Polish team is the Principal Investigator, who provides general supervision over the project and researchers. The Principal Investigator, Anna Wyrozumska, is Professor of public international law, author of a number of publications on public international law, in particular the monograph "Umowy międzynarodowe. Teoria i praktyka" (International Agreements. Theory and Practice, 2007), and has judicial practice as ad hoc judge of the European Court of Human Rights and conciliator and member of the Bureau of the OSCE Court of Conciliation and Arbitration. Prof Wyrozumska is also President of the Legal Advisory Committee of the Polish Minister for Foreign Affairs and President of the Polish Branch of the International Law Association. Prof Wyrozumska is currently conducting her research on the boundaries of judicial activism in international and European law as a leader of a research group (the post-doctoral researchers of the Polish team are members of this group). The country team cooperates with researchers from Eastern European countries (in particular Czech Republic, Hungary, Lithuania, Russia and Ukraine).
Research team investigates how Polish domestic courts find themselves in international context – how and when they use international law, and whether they engage in a "judicial dialogue" with international and foreign courts. The team identifies judgments of Polish courts pertaining to the application of international law, analyses them, and assesses and comments on the selected judgments against the background of international law. Polish practice is compared with the practice of other Eastern European countries.
The research focuses on three main research problems/areas:
- The contribution of Polish courts in the development of public international law. The objective of this research is to explore how Polish courts apply rules of general international law, inter alia rules on immunities (especially state immunity), jus cogens norms, and human rights norms, and to identify the reasons why Polish courts are active or restrained in their application of international law. We also trace the application of the Vienna Convention on the Law of Treaties, especially the principles of interpretation.
- The influence of the international rule of law on the Polish legal system, and the application of international human rights protection instruments by Polish courts.
- The engagement of Polish courts in international and transnational judicial dialog. The objective of this research is to explore why and how Polish courts refer to the case law of external courts (national and international), and to analyse the influence of the jurisprudence of international courts on the domestic application of the international law norms and conditions.
Polish practice of applying international law and engaging judicial dialog is compared with the practice of other Eastern European countries. We have invited researchers from such other countries to join the research, by presenting to them the examples from Polish practice and the results of our investigation and invite them to compare them to their country practice and comment on similarities and differences. Mid -term results of research were disseminated during international conference 'Eastern Europe and Judicial Dialogue on International Law' – Lodz 5-6 April 2013.