National Courts as International Actors: Jurisdictional Implications

35 Pages Posted: 31 Oct 2008

See all articles by Yuval Shany

Yuval Shany

Hebrew University of Jerusalem - Faculty of Law and Institute of Criminology; Israel Democracy Institute

Date Written: October 29, 2008

Abstract

As an empirical matter, there is a little question that international law is being increasingly applied today by national courts around the world in a more consequential manner. Moreover, in the words of one scholar: references to foreign law and international law are being transformed from the shield that protected the government from judicial review to the sword by which the government's (or governments') case is struck down (emphasis added). Indeed, examination of recent decisions in the UK and Israel suggests an increasing willingness on the part of some national courts to use international law as a meaningful tool for critical review of government policy and legislation relating to sensitive security-related matters.

The present article examines whether, in light of these developments, some national courts should now be conceptualized as de facto international actors fulfilling an international judicial function (drawing inspiration from Georges Scelles's classic work on dedoublement fonctionnelle). In addressing this question, I discuss the potential motivations that underlie the application of international law by national courts and argue that if national judges apply international law out of a sense of legal obligation then their ultimate loyalty to national interests does not contradict their international law-applying role.

The final part of the articles discusses some jurisdictional implications that may arise from the increased approximation of the judicial functions of national and international courts. In a nutshell, I argue there that if national courts are increasingly operating like international courts, a more robust legal framework should be considered for coordinating between national and international legal procedures and judicial decisions. When viewed from that perspective, the decision of the majority on the U.S. Supreme Court in Medellin, which extended little deference to the judgment issued by the International Court of Justice on the same matter, appears disappointing.

Keywords: International law in domestic courts, international judiciary, fragmentation of interntaional law, international rule of law

Suggested Citation

Shany, Yuval, National Courts as International Actors: Jurisdictional Implications (October 29, 2008). Hebrew University International Law Research Paper No. 22-08, Available at SSRN: https://ssrn.com/abstract=1292056 or http://dx.doi.org/10.2139/ssrn.1292056

Yuval Shany (Contact Author)

Hebrew University of Jerusalem - Faculty of Law and Institute of Criminology ( email )

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Israel Democracy Institute ( email )

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