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

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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).

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

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