Domestic Courts and Sovereignty

Abstract

In recent years, the world has witnessed the emergence of an increasing number of international courts and tribunals. This paper seeks to assess the effect that the emergence of these tribunals and courts has had on the jurisprudence of domestic courts and national judges. The main claim advanced in this paper is that the effect of international tribunals is not to limit national decision making, but rather to reinforce the decision making power of domestic courts. Domestic courts use the potential power of international law in order to strengthen their own position, and re-define the term domestic sovereignty. In order to cooperate with and enforce international law, domestic courts and national judges use terms usually associated with sovereignty. In other words, the real effect of international tribunals is not to create an international hierarchical judicial structure, nor is it to create judicial networks. Rather, the modern system of international adjudication supports the independence of domestic courts, and creates incentives to national judges to enforce international law domestically. This move, it is claimed, is desirable from both an international perspective and a domestic perspective. Based on the model of internalization I claim that participation of domestic courts in the enforcement of international law is critical to its acceptance and legitimacy.