Judging International Judgments Anew? The Human Rights Courts Before Domestic Courts
European Journal of International Law, Forthcoming
37 Pages Posted: 7 Jun 2019
Date Written: June 7, 2019
In recent times, instances of contestation of the ECtHR and the IACtHR make headlines, and in many of these cases domestic courts play a role by refusing to follow the human rights courts or even declaring their judgments to be unconstitutional. This paper undertakes an in-depth analysis of these instances of judicial resistance and puts them into context. This shows that domestic courts, even though originally not having been allocated this role, have become important ‘compliance partners’ of the human rights courts and now play an important and autonomous role in the implementation of their judgments. At the same time, they act as ‘gatekeepers’ and limit their effects in the domestic order. Recent cases even suggest a turn to a less open and more national self-perception of domestic courts. While this to some extent reflects the multiple – and sometimes conflicting – roles domestic courts perform at the intersection of legal orders, the paper argues that the open and flexible stance many domestic courts take when faced with international judgments is better suited to cope with the complex and plural legal reality than systematically judging anew on matters already decided by the human rights courts.
Keywords: International courts, domestic courts in international law, judicial resistance, backlash, pluralism
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