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.