Neither Dr Jekyll, nor Mr Hyde, Just a National Judge… National Courts’ Strategies of Resistance to International Law

KFG Working Paper Series, No. 52, Berlin Potsdam Research Group “The International Rule of Law – Rise or Decline?” 2021

53 Pages Posted: 19 Dec 2021

See all articles by Apollin Koagne Zouapet

Apollin Koagne Zouapet

Berlin-Potsdam Research Group "International Rule of Law: Rise or Decline ?"

Date Written: October 2021

Abstract

The development and expansion of international law have also led to greater demands on national courts to interpret and apply international law. However, while this increased demand has confirmed the role of the domestic court as an organ of international law, it has also led to a tension between its tasks as guardian of the rule of law at the domestic level and as guarantor of compliance with the international rule of law. The Kadi case of the European Court of Justice (ECJ), the Solange case of the German Constitutional Court and the Mara’abe case of the Israeli High Court of Justice (HCJ) are some of the symbols of this tension and illustrate the techniques and strategies developed by the domestic courts to apply international law while preserving the domestic legal order. This paper analyses the application of international law by domestic courts and tries to identify the techniques and strategies used by them to oppose, circumvent, undermine or resist international law, sometimes arguing that it is necessary to develop it. In so doing, the paper highlights the difficulties of role splitting (dédoublement fonctionnel) as conceived by Georges Scelle: even in its application of international law, the domestic judge never ceases to be the agent of a domestic legal order whose interests he or she has at heart.

Suggested Citation

Koagne Zouapet, Apollin, Neither Dr Jekyll, nor Mr Hyde, Just a National Judge… National Courts’ Strategies of Resistance to International Law (October 2021). KFG Working Paper Series, No. 52, Berlin Potsdam Research Group “The International Rule of Law – Rise or Decline?” 2021, Available at SSRN: https://ssrn.com/abstract=3948145 or http://dx.doi.org/10.2139/ssrn.3948145

Apollin Koagne Zouapet (Contact Author)

Berlin-Potsdam Research Group "International Rule of Law: Rise or Decline ?" ( email )

Habelschwerdter Allee 34a
Berlin, DE Berlin 14195
Germany

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