National Perspectives on International Constitutional Review: Diverging Optics
Forthcoming, Erin Delaney and Rosalind Dixon eds., Comparative Judicial Review, Edward Elgar Publishing, 2018.
iCourts Working Paper Series No. 92
39 Pages Posted: 13 Apr 2017 Last revised: 25 Apr 2017
Date Written: April 12, 2017
Why might national judges facilitate or tacitly undermine state respect for international law and IC legal rulings? I discuss two diverging optics – the luxury optic and the fail-safe optic – through which national judges approach international law and IC review of state actions. The luxury optic suggests that although ICs may exercise valid legal authority to generate binding legal rulings, IC rulings are external and domestically superfluous, providing neither binding nor guiding jurisprudence relevant in the national realm. The fail-safe optic, by contrast, insists that IC rulings must guide and perhaps even bind national legal review. I argue that political motives, rather than legal constraints, help to define and shape national judicial optics. Using illustrations of national judicial responses to decisions of a diverse array of international courts, the chapter explains how these optics end up shaping national legal and political cultures of constitutional obedience to international law. Finally, I discuss and illustrate an intermediate position where national supreme courts defend the supremacy of the national constitution while using their constitutional authority to support national adherence to international law as interpreted by ICs.
Keywords: International constitutional review, international courts, legal authority, international law, national courts, constitutional law, comparative law
JEL Classification: K10, K30
Suggested Citation: Suggested Citation