Domestic Courts Should Embrace Sound Interpretative Strategies in the Development of Human Rights-Oriented International Law

There are two significant trends in how domestic courts applying international law: (i) they are exploiting all the creative potential of customary international law by pioneering the determination of new customery rules, or favouring the evolution of old ones. However, in so doing, they have often asserted the existence of international customs without sufficient reference to international precedents, or regarded international teatry rules as corresponding ipso facto to general international law; (ii) they constantly apply the interpretative methods of modern costitutionalism to solve the conflicts between international norms, or to propose an evolutive interpretation of customary and treaty norms on the protetcion of human rights. However, they tend to go too far, violating some well-established norms of customary international law and given rise to plethora of interpretations from state to state. The upshot of these trends is that recent national judicial practice marks a turning point in the formation of customary international law and general principles of law. Domestic courts have also developed a creative judge-made law. However, judges cannot use their freedom to interpretation in an arbitrary way. They would risk handing down illegitimate and ineffectual decisions. Moreover, judicial creativity may also run counter to the practice the executive organs of the various states adopt in their diplomatic intercourse. Too much discretionary power in the hands of the judiciary may, from the domestic point of view, also violate the democratic principle of the separation of powers. The only correction to these shortcomings is to adhere to strict methodological principles in setting out the grounds for any innovative decision. It is the fulfilment of these very conditions wich characterizes courts as independent bodies in a rule-of-law-based legal system. Courts must respect precise formal constraints, such as the obbligation not to exceed the limits of their competence and to give priority to norms of a higher rank. According to legal hermeneutics formal criteria must be coupled with substancial control over the correspondence of the norms to the changing ethical convictions and expectations of the community, and the conformity of judge-made law with the existing legal system. The first type of control has been carried out exspecially by expanding on the content of general principles of law and jus cogens, wheras the second is expressed by canons of balancing and proportionally.