Judicial Strategies and Their Impact on the Development of the International Rule of Law

A shorter version appears in Machiko Kanetake and André Nollkaemper (eds.), The Rule of Law at the National and International Levels: Contestations and Deference (Oxford: Hart Publishing, 2014), Chapter 3

University of Cambridge Faculty of Law Research Paper No. 25/2014

26 Pages Posted: 28 Mar 2014 Last revised: 8 Apr 2014

See all articles by Veronika Fikfak

Veronika Fikfak

University of Cambridge - Faculty of Law

Date Written: March 26, 2014

Abstract

International scholars describe domestic courts as agents in the international legal order, acting in the service of the international rule of law. These courts are the first post of call where international claims are adjudicated and they are therefore the ideal organs to ensure that international law is applied as law, even against a reluctant Executive, whose actions threaten to breach the State’s international obligations. But what does it mean to say that courts protect the rule of international law? What type of behaviour does this rule require of domestic courts? The issue of how courts should act has become especially problematic in the context of challenges individuals have brought against decisions of international institutions, which the Executive has sought to enforce domestically and which arguably limit individuals’ human rights without according any opportunity for review at an international level. Faced with applications for review of legality, domestic judges have had to choose between refusing the implementation of these 'strict' international decisions and abstaining from review altogether, thus giving these international decisions their full effectiveness. Stuck between a rock and a hard place, this chapter discusses whether domestic courts can reconcile the competing interests of individuals, international institutions and the international legal order. It investigates what strategies courts have at their disposal to undertake review which provides due process protections to individuals whilst at the same time avoiding a challenge of the authority of the international institution and ensuring the international rule of law.

Keywords: domestic courts, international law, rule of law, dialogue, security council

JEL Classification: K1, K3, K33

Suggested Citation

Fikfak, Veronika, Judicial Strategies and Their Impact on the Development of the International Rule of Law (March 26, 2014). A shorter version appears in Machiko Kanetake and André Nollkaemper (eds.), The Rule of Law at the National and International Levels: Contestations and Deference (Oxford: Hart Publishing, 2014), Chapter 3; University of Cambridge Faculty of Law Research Paper No. 25/2014 . Available at SSRN: https://ssrn.com/abstract=2417200

Veronika Fikfak (Contact Author)

University of Cambridge - Faculty of Law ( email )

10 West Road
Cambridge, CB3 9DZ
United Kingdom

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