Three Cheers for the Application of International Law by Domestic Courts! Or should that be two? A response to Benvenisti & Downs.

Last month, Professors Eyal Benvenisti and George Downs posted a summary of their latest EJIL article – “National Courts, Domestic Democracy and the Evolution of International Law”  – which set out the issues discussed in that article (available here) in the context of the authors’ scholarship in this area. The article impressively surveys trends regarding the extent to which domestic courts will defer to the executive branch in the area of foreign affairs. It also considers what the authors see as growing inter-judicial cooperation which enhances the increasing boldness of courts not only with regard to their executives but also in reviewing the policies of international organizations. The article argues that unlike the position nearly two decades ago, domestic courts are increasingly abandoning their traditional deference to the executive when dealing with questions of foreign affairs. The evidence for this assertion is not set out in this article but is considered elsewhere by Professor Benvenisti. The comments by Alison MacDonald here on this blog support this assertion, at least as far as English courts are concerned. Benvenisti and Downs find the reasons for this change of judicial attitude in changes in assumptions which had previously underpinned the idea that foreign policy ought to be the preserve of the executive. The assumptions which are now being undermined are said to be that: (i) the boundary between domestic and foreign affairs was well defined with both being distinct; (ii) the executive was best placed to protect the domestic interest in international affairs and (iii) international interaction should be as free of legal restraints as possible. The changes in these assumptions seem to be persuasive in explaining a change on the part of domestic courts with regard to judicial intervention in foreign affairs. Even if the change of assumptions did not precede a change in attitude, increased judicial intervention would not be consistent with these assumptions. Benvenisti &Downs’ (B&D) arguments regarding the changes in the relationship between national courts and domestic executives and the use of international law by national courts to restrain their executives are plausible but are not always compelling, nor do they always follow logically from the evidence.

Judicial Oversight of Foreign Policy and Judicial Embrace of International Law do not always go together

One of the themes which underlines the article seems to be an assumption that a move away from deference to the executive in foreign affairs will usually be a move towards engagement with international law and vice versa. This point can be seen in the opening sentence of the abstract of the article: “National courts are gradually  abandoning their traditional policy of deference to their executive branches in the field of foreign policy and beginning more aggressively to engage in the interpretation of international law.” However, the two do not necessarily go together and have not always gone together in domestic judicial practice. 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. More strikingly, domestic courts may place restraints on the executive as they reject international law as controlling or as a justification for executive action. The European Court of Justice’s much discussed decision in Kadi (see discussion on this blog here, here and here) is an example of this. In that case, the ECJ held that a Regulation adopted by the Council of the EC and which implemented a UN Security Council Resolution imposing targeted sanctions on individuals was invalid. There, the ECJ applied “domestic” European standards in order to review the acts of the EC political branches in a manner which can hardly be described as engagement with or acceptance of international law.

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. Domestic courts may even use international law as a way of bypassing, undermining or, more subtly, interpreting away otherwise applicable domestic constraints. English courts have done this on some occasions in recent years. The House of Lords decision in Al Jedda would be an example of this. In that case, the English courts allowed the executive to use a UN Security Council to justify a detention that could not be justified on the basis of domestic legislation (the Human Rights Act – which implemented the ECHR). Another example would be the decision of the English Court of Appeal in the Al Sadoon case [which has been discussed on this blog here and here]. In that case, the Court of Appeal used the international law obligations of the UK (its treaty obligations to Iraq) in order to interpret and constrain the application of the ECHR and the Human Rights Act. These  decisions are remarkable because of the willingness of the courts to embrace international law. It is particularly striking that in Al Jedda, there is little discussion in the House of Lords (though there was in the courts below) of how the UN Security Council resolution becomes relevant in English law. However, the result was 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.

The Application of International Law and Domestic Democracy

This latter phenomenon, also challenges another argument of Professors Benvenisti & Downs (B&D). This is the argument that abandoning the deference to executive action in foreign affairs and placing stricter limits on the executive protects and enhances domestic democratic processes. According to B& D:

“By creating clearer boundaries which placed limits on executive unilateralism in the area of foreign policy, they [national courts] could better safeguard domestic democratic processes and reinforce their own autonomy.”

The way in which the point is stated, it is not quite clear whether B&D are simply describing a belief  they ascribe to national courts or whether this is an argument of the authors. The general tenor of the article suggests the latter. However, 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. This is an argument that that is often advanced by conservatives in the US who reject the use of sources of law that are not rooted in domestic democratic processes. Many will not agree with it. However a piece that advances the starkly contrasting point that using international law and comparative law to constrain the executive actually promotes domestic democratic processes needs to address this point. Perhaps B& D should have made clearer what they mean when they argue that national judicial supervision of foreign affairs enhances domestic democracy. 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). That is of course a good thing. However, we need to be clear that achieving such protection by judicial action against the wishes of the elected branches has implications for separation of powers and for democracy. The end results may not be bad. But we need to address the concerns.

One might think that a consequences of increased judicial participation in regulating foreign affairs is that the executive branch has less room to manoeuvre when it acts abroad. However, B&D argue that:

“they [national courts] had reason to believe that these stricter demands on their executive would not necessarily jeopardize the latter’s bargaining position vis-à-vis its negotiating partners but might actually provide credibility to the government’s reluctance to succumb to external pressures demanding compliance with certain policies.” [64]

Here it is clear that B&D are not only describing a belief but also stating national courts have good reason to entertain that belief. B&D are undoubtedly correct that 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. Also, there is a slight incongruity here as 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.

Domestic Courts and International Organizations

In their article Professors Benvenisti & Downs see the promise of interjudicial cooperation not only in providing restraint on the domestic executive but in “address[ing] what is arguably the growing ‘judicial deficit’ in the global governance system which has emerged from the lack of effective judicial review of international organization policies.”[ p.68] In addressing this ‘promise’, the authors consider not just the benefits of such review by domestic courts but also the risks. However, it seems to me that one of the benefits mentioned is overplayed. B&D acknowledge that for the moment, only a small group of courts of powerful countries are engaging in this type of review.  They go on to state that :

“To the extent that these national courts are those of democratic states and reliably represent their respective domestic constituencies, they are likely to be no less representative of the global constituency than the international decision-makers and judges designed by state executives. ” [69]

In short, this type of domestic review is no worse than review by international tribunals. This seems to me to undermine and undervalue the importance of having diverse views. Why is it assumed that national judges representing the domestic constituency of a small group of States represent the global interest. There is an assumption here that there is a universal outlook on international or global set of values which can be captured by any participant acting in good faith. A contrasting view would be that one of the advantages of international tribunals over domestic courts, in the application of international law, is that they represent a less parochial view of international law simply because they are composed of diverse nationalities. Indeed B&D hint at the limitations of national judicial action when they speak of the “class, gender, and ethnicity biases” that may exist [pp70-71], of the policy differences that exist between states that are often reflected in their courts” [p. 71] and of the fact that the courts they speak of in the article share a host of things in common. These common factors may not be universally shared and may lead to parochial international law which does not truly represent the international community.

 Along similar lines, it seems that one of the most obvious risks of a growing willingness of national courts to review acts of international organizations is (at present) a risk of creating more fragmentation in the international system. This is because of possible divergences in the application of international law by national courts but more likely because national courts will use different standards and principles (perhaps of domestic law) to review acts of international organizations. The Kadi and Abdelrazik cases (discussed here) are perhaps cases in point. Though there are systemic risks to such actions by domestic courts it may well be that the acknowledgement of these problems will lead to more effective scrutiny at international level. This could, in turn, lead to possible conflicts with international tribunals (as pointed out by B&D) or might lead to better coordination with international tribunals (as for example happens between domestic and regional courts in Europe).

National Courts and Foreign Democracy

One 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. This issue is perhaps outside the scope of the B&D article which deals with domestic courts and domestic democracy but they do touch, very briefly, on the issue when they mention the domestic decisions dealing with immunity of foreign governments and officials (p. 64). Both in the area of civil and criminal cases there are real questions about the appropriateness of domestic courts seeking to apply international law against foreign governments. For one thing, such domestic action may have an impact on foreign democratic decision making. Unilateral judicial action abroad may undermine local decisions made about how a country wishes to address past injustices. Also, to the extent that judicial decision making in certain areas of law require a balancing of competing considerations (eg in the application of limitations to human rights), one has to ask whether foreign judges who are divorced from the system and who have no accountability whatsoever to the country concerned are appropriately placed to engage in that task. Here too, there is a problem of parochial international law. It is one thing for a court to take a parochial view of international law as it applies to that country, it is another to take such a view when it is applied to another.  Moreover, application of international law by national courts against foreign States risks turning the traditional international system of dispute settlement on its head. The rule requiring consent of the State concerned before international courts can take action may be bypassed all too easily by national courts. Also the exhaustion of domestic remedies requirement of state responsibility may also be ignored.

 There is much to be optimistic about regarding the increasing application of international law by domestic courts. Professors Benvenisti & Downs are good cheerleaders. They also point out risks in these developments. However, there are other risks that we need to weigh carefully.