Document Type

Article

Publication Date

2021

Abstract

International law in the form of treaty and custom is primarily shaped by national executives and legislatures. To be sure, “judicial decisions” are deemed a “subsidiary means for the determination of [international] law,” but that still does not give domestic courts an everyday role in the generation of universal norms and international law. This article proposes a more dynamic reality which elevates the importance of municipal courts in the generation and creation of international law. The truth is that domestic courts interact regularly to announce and create important universal norms—by, for instance, adjudicating expropriation claims, passing on the recognition and enforcement of foreign judgments and arbitral awards, or deciding human rights cases. It is here where “international due process” is hammered-into-form by sovereign states; it is here where judiciaries judge judiciaries, articulate the propriety of each other’s acts, and in the process elevate vital normative standards to announce what precisely qualifies as “justice, very simple, very fundamental, and of such general acceptance by all civilized countries as to form a part of the international law of the world.” (E. Borchard, 1939).

In some ways, this is a situation of necessity, especially as individuals become the subjects and swords of international law vis-à-vis sovereign states. Custom rarely speaks to individual rights and fundamental norms of due process; aside from the vague sentiments of investment treaties and a few human rights conventions, States seldom agree to give individuals international rights; and the rule of law can hardly depend on the written constitutions of states around the world to gauge their acceptance of and adherence to general principles, especially when those paper declarations are rarely more than mollifying aspirations. If applicable and universal norms are best shaped by the reasoned adjudication of competing positions, then municipal courts are the best hope for these norms taking root in international law.

If international law is to strengthen the positive law footing that it acquired over the course of the last century, then municipal courts must add texture and perspective on what it means to afford a litigant international due process, what constitutes a minimally-adequate forum for pressing one’s rights, and when a taking will violate international law. “It is,” after all, “emphatically the duty of the Judicial Department to say what the law is” (Marbury v Madison), and this should be true for international law as much as it is in domestic legal systems. This is an important function of the unitary sovereign in the twenty-first century, and in improving the vertical relationship between individuals and states.

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