Duelling for Supremacy: International Law vs National Fundamental Principles, pp. 106-126, Fulvio Maria Pambino, ed., Cambridge University Press, 2019
17 Pages Posted: 11 Mar 2019
Date Written: September 1, 2018
After decades of avoiding meaningful engagement with international law, Greek courts engaged more seriously in the years of the crises. Under conditions of ‘normality’, cases ‘at the edge’ are few, and domestic courts may be unwilling in such circumstances to openly contest international law. This chapter demonstrates how Greek courts opted for avoidance in cases they thought that international law somehow left something to be desired when pitted against the Greek Constitution. They avoided international law by mechanistically invoking the Constitution’s normative supremacy even when they did not need to do so. This is undoubtedly resistance, but only formally principled resistance – and certainly not ‘reasonable’ resistance. But when international law is employed by both regulators and challengers as a sword and a shield on matters of high political and legal importance, resistance is no longer cheap, and can no longer be unprincipled. The stakes are too high, but so are the possibilities to influence the content and development of international law. In those circumstances, Greek courts seemed far more comfortable to forget about resisting and fall into line. Resistance here would be costly, not less so in terms of the quality of argument to be put forward. Resistance is not always futile. Sometimes, even if potentially futile, it is direly needed. Unprincipled resistance is always futile, however, and definitely not useful in preparing one for proper contestation when the circumstances call for it.
Keywords: human rights, EU law, financial crisis, refugee crisis, resistance, domestic courts and international law
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