Judging Judges: Do Judges Meet Their Constitutional Obligation to Settle Disputes in Conformity with 'Principles of Justice and International Law'?

EUI LAW Working Paper No. 2008/01

34 Pages Posted: 15 Feb 2008

See all articles by Ernst-Ulrich Petersmann

Ernst-Ulrich Petersmann

European University Institute - Department of Law (LAW)

Date Written: January 2008

Abstract

This contribution argues that the universal recognition of human rights requires judges to take human rights more seriously in their judicial settlement of disputes "in conformity with the principles of justice and international law", as prescribed in the Vienna Convention on the Law of Treaties (Preamble VCLT) as well as in the UN Charter (Article 1). Section I explains the constitutional duty of judges to interpret law and settle disputes in conformity with principles of justice as increasingly defined by human rights. Section II argues that the "multilevel judicial governance" in Europe - notably between the European Community (EC) Court of Justice and its Court of First Instance, the EC courts and national courts, the European Free Trade Area (EFTA) Court and national courts, and the European Court of Human Rights (ECtHR) and national courts - was successful due to the fact that this judicial cooperation was justified as multilevel protection of constitutional citizen rights and, mainly for this reason, was supported as "just" by judges, citizens and parliaments. Section III concludes that the European "solange-method" of judicial cooperation "as long as" other courts respect constitutional principles of justice should be supported by citizens, judges, civil society and their democratic representatives also in judicial cooperation with worldwide courts and dispute settlement bodies. As explained in Section IV, in a world that continues to be dominated by power politics and by reasonable "constitutional pluralism", it is easier for international judges to meet their obligation to settle disputes "in conformity with principles of justice" if courts cooperate and base their "judicial discourses" on "public reason", respect for human rights and judicial protection of the constitutional principles underlying human rights law.

Keywords: courts, international economic law, governance, human rights, European Union

Suggested Citation

Petersmann, Ernst-Ulrich, Judging Judges: Do Judges Meet Their Constitutional Obligation to Settle Disputes in Conformity with 'Principles of Justice and International Law'? (January 2008). EUI LAW Working Paper No. 2008/01. Available at SSRN: https://ssrn.com/abstract=1093622 or http://dx.doi.org/10.2139/ssrn.1093622

Ernst-Ulrich Petersmann (Contact Author)

European University Institute - Department of Law (LAW) ( email )

Via Bolognese 156 (Villa Salviati)
50-139 Firenze
Italy

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