Shany: National Courts as International Actors: Jurisdictional Implications

Yuval Shany (Hebrew Univ. - Law) has posted National Courts as International Actors: Jurisdictional Implications. Here's the abstract:

As an empirical matter, there is a little question that international law is being increasingly applied today by national courts around the world in a more consequential manner. Moreover, in the words of one scholar: "references to foreign law and international law are being transformed from the shield that protected the government from judicial review to the sword by which the government's (or governments') case is struck down" (emphasis added). Indeed, examination of recent decisions in the UK and Israel suggests an increasing willingness on the part of some national courts to use international law as a meaningful tool for critical review of government policy and legislation relating to sensitive security-related matters. The present article examines whether, in light of these developments, some national courts should now be conceptualized as de facto international actors fulfilling an international judicial function (drawing inspiration from Georges Scelles's classic work on dedoublement fonctionnelle). In addressing this question, I discuss the potential motivations that underlie the application of international law by national courts and argue that if national judges apply international law out of a sense of legal obligation then their ultimate loyalty to national interests does not contradict their international law-applying role. The final part of the articles discusses some jurisdictional implications that may arise from the increased approximation of the judicial functions of national and international courts. In a nutshell, I argue there that if national courts are increasingly operating like international courts, a more robust legal framework should be considered for coordinating between national and international legal procedures and judicial decisions. When viewed from that perspective, the decision of the majority on the U.S. Supreme Court in Medellin, which extended little deference to the judgment issued by the International Court of Justice on the same matter, appears disappointing.