National Courts, Domestic Democracy, and the Evolution of International Law

14 Pages Posted: 21 Apr 2009 Last revised: 6 Aug 2012

See all articles by Eyal Benvenisti

Eyal Benvenisti

University of Cambridge Faculty of Law

George W. Downs

New York University (NYU)

Date Written: February 1, 2009

Abstract

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.

Suggested Citation

Benvenisti, Eyal and Downs, George W., National Courts, Domestic Democracy, and the Evolution of International Law (February 1, 2009). European Journal of International Law, Vol. 20, Issue 1, pp. 59-72, 2009. Available at SSRN: https://ssrn.com/abstract=1389126 or http://dx.doi.org/10.1093/ejil/chp004

Eyal Benvenisti (Contact Author)

University of Cambridge Faculty of Law ( email )

Lauterpacht Centre for International Law
5 Cranmer Centre
Cambridge, CB3 9BL
United Kingdom

George W. Downs

New York University (NYU) ( email )

Bobst Library, E-resource Acquisitions
20 Cooper Square 3rd Floor
New York, NY 10003-711
United States
212-998-8020 (Phone)

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