National Courts, Domestic Democracy, and the Evolution of International Law: A Reply to Eyal Benvenisti and George Downs

Abstract

Benvenisti and Downs’ article addresses a very complex topic which raises a host of difficult problems for which no clear and easy answers are readily available. Accordingly, and in view of the limited space that has been allocated for this response, I had to be selective and restrict myself by adding some other colours and different perspectives to the picture that has been painted by the authors. My response will start by discussing first the analytical framework before moving towards a critique in substance. It should be noted from the outset that I generally agree with the analytical frame­ work and the diagnosis of the relation ­ ship between national and international courts, their governments, and contract­ ing parties (i.e. their ‘Masters’), their con­ straints and the various interests involved. As the authors correctly point out, two main interrelated developments have been shaping the position and room for manoeuvre of national and international courts. Essentially, it can be stated that the proliferation of international courts and tribunals has resulted in an institution­ alization or ‘thickening’ of international law, giving these judicial and (quasi) judicial bodies extra power to shape the development of international law. But this proliferation of international courts and tribunals is simultaneously accom­ panied by the increasing fragmentation of international law because of the lack of a formal hierarchy between all the vari­ ous international judicial bodies.1 At the