Cogan: National Courts as Checks on Executive Power: A Response to Benvenisti and Downs

ILR's editor, Jacob Katz Cogan (Univ. of Cincinnati - Law), has posted National Courts as Checks on Executive Power: A Response to Benvenisti and Downs (European Journal of International Law, forthcoming). Here's the abstract:

The proliferation of international law and institutions over the past two decades has produced both excitement and anxiety. Cooperation and coordination - formal and informal - has allowed states and other international actors to get at global and regional problems and facilitate international exchange much more so than in the past. The heightened activities of international organizations and national governments have pertained both to traditional areas, as well as those, such as environmental law, that had hitherto been almost exclusively within the domain of domestic politics and law. Such developments have worried those who believe that decisions taken at the international level are insufficiently reflective of and constrained by democratic politics and basic principles of due process, and unfairly give preferences to powerful states over less powerful ones.

In their article “National Courts, Domestic Democracy, and the Evolution of International Law,” 20 European Journal of International Law 59 (2009), Eyal Benvenisti and George W. Downs argue that national courts are the best device for the control of powerful executive branches and the facilitation of popular participation in international affairs. In this short response, I counter that national courts are unlikely to be as effective as the authors hope and desire. There are considerable doubts that national courts are strong enough to take on these difficult tasks. And there are serious reasons to be suspicious that national courts are to be counted on to do so. My aim, though, is not to dismiss national courts entirely. My point here is simply that the reliance placed by Benvenisti and Downs on domestic judiciaries is too great, even for the best of them. Indeed, those concerned with the transfer of decisionmaking to the international level are, quite strategically, not putting all their eggs in the judicial basket. Instead, we are seeing a complex and contentious constitutive process of adaptation of supervisory techniques.