The Strength of Weak Review: National Courts, Interpretive Canons, and Human Rights Treaties

Abstract

AbstractEnforcement of international law is often delegated to national courts, creating a space for them to play a part in international judicialization. Under what conditions can they do so? We argue that the answer depends on the relationship between the political and legal constraints national courts face. National courts must be careful to safeguard their independence in the face of potential backlash, but they face constraints in terms of the legal mechanisms available to them when enforcing international law. We focus on the availability of two legal mechanisms: direct effect, under which courts apply treaties directly, setting aside inconsistent domestic laws; and canons of interpretation, under which courts strive to interpret domestic laws in conformity with treaties. We find that the effects of human rights treaty ratification is greater when courts have the canon available to them than it is when courts have direct effect available to them.