Domestic Courts and the Defense of Shared Fundamental Values

16 Pages Posted: 10 Sep 2018

Date Written: September 8, 2018

Abstract

According to the “counter-limits” doctrine, firstly developed by domestic constitutional courts with regard to the process of European integration, the internal mechanism of adaptation to international law is interrupted in the event of international rules found to be incompatible with the fundamental principles of the domestic legal order. When applied, the doctrine leads to State’s non-compliance with an international obligation. Nevertheless, it is hereby argued that “counter-limits” may have a positive impact on international law, contributing to its development in a human rights-focused direction. In order to substantiate this position, the paper provides a brief overview of the foundations of the doctrine and of the ratio behind it, as well as of its recent applications. Subsequently, three arguments in favour of an optimistic perspective are put forward: the similarity of content between fundamental principles enshrined in national constitutions and international law, the concept of State sovereignty which emerges from recourse to “counter-limits”, and the law-making role of States.

Keywords: Reassertions of sovereignty, “counter-limits” doctrine, protection of fundamental human rights, role of domestic courts, dialogue among courts

Suggested Citation

Facchinetti, Anna, Domestic Courts and the Defense of Shared Fundamental Values (September 8, 2018). European Society of International Law (ESIL) 2018 Research Forum (Jerusalem), Available at SSRN: https://ssrn.com/abstract=3246186 or http://dx.doi.org/10.2139/ssrn.3246186

Anna Facchinetti (Contact Author)

Università degli Studi di Pavia ( email )

Corso Strada Nuova, 65
27100 Pavia, 27100
Italy

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