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Response to Alison MacDonald’s and Dapo Akande’s comments

Published on July 14, 2009        Author: 

We thank Alison MacDonald for her illuminating and extremely useful perspective on the developments in the approach of the British courts to adjudication based on international law. In many respects the changing attitude toward international law,  headed by the House of Lords under the unmistakable leadership of Lord Bingham, has provided an example for other national courts (NCs) to follow, starting in 2004 with the so-called Belmarsh Detainees judgment, that stunning 8-1 majority declaration that found the detention of foreign suspected terrorists incompatible with the Human Rights Act.  Such leadership is critical to change the status quo not only within a jurisdiction but also regionally and perhaps even globally (and no doubt, as MacDonald suggests, it facilitated a mutually reinforcing relationship between the House of Lords and the ECtHR).

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). Read the rest of this entry…

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“National Courts, Domestic Democracy, and the Evolution of International Law”: A summary in the context of our current research

Published on June 22, 2009        Author: 

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.   Read the rest of this entry…

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