Abstract
International scholars describe domestic courts as agents in the international legal order, acting in the service of the international rule of law. These courts are the first post of call where international claims are adjudicated and they are therefore the ideal organs to ensure that international law is applied as law, even against a reluctant Executive, whose actions threaten to breach the State’s international obligations. But what does it mean to say that courts protect the rule of international law? What type of behaviour does this rule require of domestic courts? The issue of how courts should act has become especially problematic in the context of challenges individuals have brought against decisions of international institutions, which the Executive has sought to enforce domestically and which arguably limit individuals’ human rights without according any opportunity for review at an international level. Faced with applications for review of legality, domestic judges have had to choose between refusing the implementation of these 'strict' international decisions and abstaining from review altogether, thus giving these international decisions their full effectiveness. Stuck between a rock and a hard place, this chapter discusses whether domestic courts can reconcile the competing interests of individuals, international institutions and the international legal order. It investigates what strategies courts have at their disposal to undertake review which provides due process protections to individuals whilst at the same time avoiding a challenge of the authority of the international institution and ensuring the international rule of law.
Talk to us
Join us for a 30 min session where you can share your feedback and ask us any queries you have
Disclaimer: All third-party content on this website/platform is and will remain the property of their respective owners and is provided on "as is" basis without any warranties, express or implied. Use of third-party content does not indicate any affiliation, sponsorship with or endorsement by them. Any references to third-party content is to identify the corresponding services and shall be considered fair use under The CopyrightLaw.