Other useful observations of MacDonald’s that are worth highlighting include the reference to the Court of Appeal’s blend of interpretive biases as leading – as often is the case – to conceptual confusion (in this case between customary and conventional international law); the inclusion of the Divisional Court’s “bright line” rationale characterizing the division of responsibilities between domestic and international courts followed by a brief documentation of the principle’s growing impracticality and obsolescence, and the description of how NCs continue to emphasize the importance of continuity and their fealty to their traditional role even as they venture further and further into the international legal sphere. This is an excellent example of how low visibility, incremental change can achieve a great deal at relatively low political cost.

We thank Professor Akande for his thoughtful review of our main arguments presented in our recent EJIL essay. We reproduce a number of his points below and respond to each of them in turn. A fuller treatment of a number of the issues that Akande raises can be found in several of our recent publications in this area (see Benvenisti 2008, Benvenisti & Downs 2009, and Benvenisti & Downs forthcoming 2009).

1. Akande writes: “Courts can move towards control of executive action in the area of foreign policy but not necessarily embrace international law. For example, national courts may apply stricter domestic constitutional standards to restrain executive conduct and in so doing may ignore international law.”

We of course acknowledge this avenue that NCs have been using (like, for example, the Solange jurisprudence). In Benvenisti & Downs 2009 we write: “[D]omestic courts have a range of options to rationalize their negative reaction to actions of [International Organizations, (IOs)] and [informal transnational institutions (ITIs)]. Their reaction can be a refusal to give effect to an act of the IO, following a finding that the act was outside the scope of authority of the IO [...] or incompatible with another set of norms, be it international norms (such as a jus cogens norm or a human rights norm) or a norm of the domestic legal order that has precedence over the act of the IO (such as the practice of the German constitutional court in the cases involving judgments of The ECJ and the EctHR).”

The point that must be emphasized, however, is that by resorting to international law, NCs can facilitate coordination with other NCs that are bound by the same norms, and limit the discretion that International Tribunals [ITs] have to develop international law further.

 2. Akande writes: “On the other hand, courts may engage with and apply international law in the area of foreign affairs in a way which enhances rather than constrains executive power. [...] a willingness to utilise international law so as to permit the executive to free itself of restraints which it would have had were international law not taken into account.”

It is certainly true the NCs have traditionally supported the efforts of executive branches to free themselves external constraints. We argue however that NCs have recently begun to re-examine this position in light of indications that executive branches employing international regulatory institutions to escape domestic deliberation and scrutiny. By stating that NCs “are beginning more aggressively to engage in the interpretation of international law” we wanted to draw attention to the growing competition between NCs, their respective executive branches, and executive-dominated ITs with respect to the oversight of IO regulatory policy making and the interpretation of international law.

 3. According to Akande, “B&D do not, at least in this article, address the criticism that restraining democratically elected executive branches by resort to international law standards (or even with the use of comparative law) is undemocratic and undermines domestic constitutional division of powers. [...] Presumably, what they mean is that it enhances protection of individual rights (be it human rights or other legally conferred protections on citizens and domestic groups).”

Monitoring the boundaries of executive discretion and safeguarding the quality of democratic deliberation in the light of changes in both domestic and international law is an inescapable function of NCs, and its importance increases as an ever-expanding proportion of regulatory law is originating within IOs. 

In the essay we hint to what we explore in greater detail in our other writings: “Better insulated that their political branches from both domestic and foreign special-interest pressure, the courts could pressure their governments to seek legislative approval of their actions, or block certain policies as incompatible with constitutional and international legal texts. By creating clearer boundaries that placed limits on executive unilateralism in the area of foreign policy, they could better safeguard domestic democratic processes and reinforce their own autonomy.”

 4. Akande notes: “domestic pressure (be it from the judicial branch, from the legislature or from public opinion) might help the executive branch in explaining its positions to negotiating partners. However, this does not mean that the executive branches will still not regard judicial intervention as an unhelpful and unwelcome. Afterall, the courts may be constraining the executive from doing what it wishes to do.”

It is certainly true that executives rarely welcome the imposition of constraints by any rival branch of government, although they do occasionally find it useful when it allows them to extract a concession from a foreign state that they could not have obtained otherwise. However, the general point that NCs need to proceed cautiously with respect to intervention in the international realm is well taken.  Fortunately, while the executive branch may often be a NC’s chief domestic audience, it is not its only one. The legislative branch and the institutions that make up civil society are important as well, and their approval can compensate to some extent for executive branch disapproval.

 5. “the Courts that are adopting this less deferential attitude to the executive are those of western, wealthy states who are best placed to withstand external pressure.”

This is still often the case but it is no longer the entire picture. We note judgments of courts from developing countries that manage to withstand external pressures to which their executives had succumbed to.

 6. Akande points out several other difficulties with the growing assertiveness by NCs: the predominance of courts of developed countries, the concerns with growing fragmentation when NCs of developing countries will “demand seats at the table.” We agree, and so we write: “When this happens it is likely that cooperation among national courts will become far more difficult-if also potentially more equitable-than it has up to this point. Courts, like the states that they represent, may discover that the common ground among them is limited and begin to split into rival blocks that compete for dominance of the international regulatory system or choose to circumvent it by focusing on the development of regional systems. In either case, the prospect that each block will be willing to unilaterally engage in the review of policies of international organizations, and is likely to do so in a different way, raises the specter of either greater instability and fragmentation in the international regulatory system, or a long-period of gridlock during which progress on critical regulatory problems comes to a virtual halt, or both.”

 7. Finally, Akande writes, “[o]ne further area where there is reason to be cautious about the application of international law by national courts is when those national courts seek to apply international law not against their own governments but against foreign governments.”

 Such an outcome is certainly possible, but there are reasons to believe that it is less of a threat than it might first appear to be. Such aggressiveness would inevitably provoke retaliation and  result in situation where all NCs would be the losers. Given that NCs are increasingly aware that the face a host of similar problems and a common set of “enemies” that are easily identified; it would be quite counterproductive to undermine their fra

Eyal Benvenisti is Professor Human Rights Law at Tel Aviv University and George Downs is Professor of Politics at New York University. Their Article “National Courts, Domestic Democracy, and the Evolution of International Law is published in the current volume (20) of EJIL and is available here.

1. The Impact of Globalization on National Courts

           Traditionally, the common practice of national courts across the globe has been to avoid any application of international law that would clash with the position of their governments, a deference that helped to insure their executive branches unfettered discretion in external affairs. In recent years, however, national courts have begun to venture into the international arena to take issue with the positions of their governments regarding the interpretation of treaties and to constrain what had previously been their free hand in international bargaining. This move into the international realm has been complemented by a newfound willingness on the part of national courts to coordinate with each other in reviewing the acts of international organisations and in collectively interpreting the shared legal texts of international law and comparative constitutional law.

There is little indication that the change is related to any alteration in the process by which judges are selected or to the growing salience of international law school curricula in recent years. The chief motivation of national courts remains that of protecting the domestic rule of law rather than that of promoting global justice. In this essay and elsewhere, we argue that what has changed is the context which national court judges find themselves operating in. The accelerating globalization has altered the assessment of national courts about the nature of the primary threats to the domestic order and the strategies they will need to adopt in order to cope with them.

Since the early 1990s, intergovernmental coordination has become a prerequisite for the regulation of a host of activities in areas such as the environment, national security, and financial markets that had previously been the exclusive province of individual state governments. This coordination effort has been driven and controlled by the executive branches of the states involved and in most cases dominated by those of the powerful developed countries. As a result, an ever-increasing number of regulatory policy decisions with important domestic consequences issues are being relegated to the fragmented transnational sphere and escaping the scrutiny of the domestic democratic and supervisory processes that had developed over the years through the efforts of civil society, legislatures and courts. Under these conditions the continued passivity of courts in the face of a rapidly expanding international regulatory apparatus raises constitutionally-related concerns about excessive executive power and risks serious erosion in the effective scope of judicial review. 

 2. The Emergence of Inter-Judicial Dialogue as a Response to Globalization

As a consequence, national courts have begun to exploit the expanding scope and fragmented character of international regulation to create opportunities to act collectively by engaging in a loose form of inter-judicial coordination. Fortunately for these courts, they are increasingly discovering that they can help maintain the space for domestic deliberation and strengthen the ability of their governments to withstand the pressure brought to bear by foreign and local interest groups and powerful foreign governments.  The most effective way for them to do this is to insure to the extent possible that their judgments complement rather than conflict with those of other national courts. Better insulated than their political branches from both domestic and foreign special-interest pressure, the courts can pressure their governments to seek legislative approval of their actions, or block certain policies as incompatible with constitutional and international legal texts. By creating clearer boundaries that place limits on executive unilateralism in the area of foreign policy, they can better safeguard domestic democratic processes and reinforce their own autonomy. These stricter demands on their executive do not necessarily jeopardize the latter’s bargaining position vis-à-vis its negotiating partners. Pressure exerted on a government by its disapproving court can, in fact, result in greater bargaining leeway for that government, enabling it to credibly claim that it is unable to bow to the pressure of the foreign negotiators.

Increasingly this requires national courts to monitor the opinions of other courts at both the national and international level and to engage in what amounts to tacit coordination. The optimal way for courts to initiate and maintain the necessary cooperation is through mutual exchange of information. Their judicial reasoning and outcomes convey information about their commitment to cooperating. More specifically, their reliance on the same or similar legal sources facilitates this communication and, to a considerable extent, signals their commitment. The use of comparative analysis is a signal that courts are willing to learn from one another, or are seeking support from other jurisdictions for their judgments, or both. International law, the source of collective standards, is a most valuable coordination tool for national courts. In this regard, the exponential growth of areas subject to inter-governmental regulation facilitated inter-judicial dialogue that developed into cross-signaling which, in turn, could nurture cooperation. The growth of common spheres for judicial action and the willingness of courts to exploit the discretion that fragmentation provides them with facilitate court cooperation by enlarging the scope and frequency of inter-judicial dialogue.

3. The Potential Contribution of national Courts to Global Governance

Indirectly and perhaps inadvertently, this inter-judicial dialogue has also made the national courts key players in the evolution of the global legal order.  The newly acquired tools for interjudicial coordination and cooperation holds out the possibility that national courts may also be able to play an important collaborative role in helping international courts create a coherent a web of linked obligations out of the fragmented international legal space.  Even more importantly, such coordination could address what is arguably the growing “judicial deficit” in the global governance system that has paradoxically emerged from the lack of effective judicial review of international organizations despite the proliferation of international tribunals. In this essay and in subsequent publications we argue that progress in containing executive power via judicial oversight is likely to be driven from below and led by national rather than by international courts. 

    National courts, especially those of the powerful democratic states, are best  positioned to do this both because they possess far more structural independence than do international tribunals and because it is they who stand to lose the most from the continued transfer of regulatory authority to the international level. Unlike international tribunals whose independence is constantly jeopardized by the threat of further fragmentation and loss of business to competing tribunals, national courts know that their executive is firmly tied to the national constitution from which it cannot exit and which the courts have the responsibility and sole authority to protect, for the benefit of the domestic population. Judges in national courts are relatively more independent than judges in international tribunals, and enjoy broader public support for their decisions. Their independent source of authority – the domestic constitutions – serves as the basis of an autonomous legal system, one that no international norm has the authority to affect.  

       In our subsequent writings we also assess the promise of coordination between national and international courts and the character that that it might take. Although friction between international and national courts is not likely to disappear anytime soon, their inter-dependency can be expected to ultimately lead both parties to acquire more experience in dealing with each other, and together contribute to a more coherent, transparent and accountable global legal system.