The European Journal of International Law Vol. 20 no. 1 © EJIL 2009; all rights reserved
National Courts, Domestic Democracy, and the Evolution of International Law
* Professor of Law, Tel Aviv University. This author would like to thank the Israel Science Foundation for a grant on which part of this research was based
** Professor of Politics, New York University
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Abstract |
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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 and application of international law. This change has been precipitated by the recognition of courts in democratic states that continued passivity in the face of a rapidly expanding international regulatory apparatus raises constitutionally-related concerns about excessive executive power and risks further erosion in the effective scope of judicial review. To avoid this, 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 co-ordination. Such collective action increases their ability to resist external pressures on their respective governments, and reduces the likelihood that any particular court or country that it represents will be singled out and punished as an outlier by either domestic or foreign actors. Should this strategy continue to be refined and developed, it holds out the promise of enabling national courts not only to safeguard their role domestically but to function as full partners with international courts in creating a more coherent international regulatory apparatus.