Domestic Courts as the 'Natural Judge' of International Law: A Change in Physiognomy
SELECT PROCEEDINGS OF THE EUROPEAN SOCIETY OF INTERNATIONAL LAW, Vol. 3, pp. 155-168, James Crawford and Sarah Nouwen, eds., Hart Publishing, 2011
16 Pages Posted: 1 Oct 2010 Last revised: 17 Jul 2011
Date Written: September 30, 2010
This paper examines whether domestic courts can be cast as the ‘natural judges’ of international law. ‘Natural judge’ is meant here in the sense of the ‘immediate,’ ‘ordinary’ judge of international law, who can only be removed through a centrally instituted judge. Given the lack of a centrally organized international judicial system, the suggestion that domestic courts are the ‘ordinary judges’ of international law has significant repercussions on the physiognomy of the international legal system. Despite the fact that in some of the decisions the reasoning of the courts is based solely on domestic law, the domestic law relied on - typically fundamental rights - is of universal radiance, as evidenced by almost universally ratified treaties and customary international law. Domestic courts are then in fact applying law based on internationally agreed standards as the immediate judges, offering effective remedies for the violation of rights influenced or shaped by, or interpreted under, international law. This trend can signify the move to a more effective application of international law, one taking place in court, even if a domestic court, rather than by a decision of the executive to invoke responsibility of another actor, or bring an international claim.
Keywords: Domestic Courts, Natural Judge, Immediate Judge, Relationship Between International Law and Domestic Law, International Law in Domestic Courts, Application of International Law by Domestic Courts, Decentralization, Institutionalization, Directionality of International Obligations
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