Teaching the World Court Makes a Bad Case - Revisiting the Relationship between Domestic Courts and the ICJ

21 Pages Posted: 13 Jul 2018 Last revised: 17 Jul 2018

See all articles by Raffaela Kunz

Raffaela Kunz

Max Planck Society for the Advancement of the Sciences - Max Planck Institute for Comparative Public Law and International Law

Date Written: July 13, 2018

Abstract

Sentenza 238/2014 of the Italian Constitutional Court (ItCC) highlights the important role domestic courts play in international law. More than prior examples, it illustrates the ever more autonomous and self-confident stance of domestic courts on the international plane. But the ruling of the Italian Constitutional Court also shows that more engagement with international law does not necessarily mean that domestic courts enhance the effectiveness of international law and become ‘compliance partners’ of international courts. The Sentenza rather suggests that domestic courts in times of global governance and increased activity of international courts see their role at the intersection of legal orders also as ‘gate-keepers’, ready to cushion the domestic impact of international law if deemed necessary. The judgment of the ItCC thus offers a new opportunity to examine the multifaceted and complex role of these important actors that apply and shape international law, while always remaining bound by domestic (constitutional) law. This paper does so by exploring how domestic courts deal with rulings of the World Court. It shows that despite the fact that in numerous situations domestic courts could act as compliance partners of the ICJ, in reality more often than not, they have refused to do so and deferred in the implementation of its judgments to the political branches. Assessing this practice, the paper argues that domestic courts should take a more active stance and overcome the purely interstate view which seems at odds with present day international law. While it seems too far-reaching to expect domestic courts to follow international courts unconditionally, the paper cautions that the risk of setting dangerous precedents by openly defying international judgments is considerable. Given that there is no simple way out for domestic courts in cases of conflict between international and domestic (constitutional) law, courts should carefully balance the different interests at stake, namely the interest of an effective system of international adjudication on the one hand and the protection of fundamental domestic principles on the other hand, keeping in mind that at the end of the day a functioning international legal system will to a large extent depend on them.

Keywords: Domestic courts in international law, relationship between international and domestic law, conflicts of law, legitimate resistance, constitutional identity

Suggested Citation

Kunz, Raffaela, Teaching the World Court Makes a Bad Case - Revisiting the Relationship between Domestic Courts and the ICJ (July 13, 2018). Max Planck Institute for Comparative Public Law & International Law (MPIL) Research Paper No. 2018-12. Available at SSRN: https://ssrn.com/abstract=3213345 or http://dx.doi.org/10.2139/ssrn.3213345

Raffaela Kunz (Contact Author)

Max Planck Society for the Advancement of the Sciences - Max Planck Institute for Comparative Public Law and International Law ( email )

Im Neuenheimer Feld 535
69120 Heidelberg, 69120
Germany

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