Chapter 11: The Political Economy of International Lawmaking by National Courts
Many scholars who sought to expand the discretion of international courts, and thereby, presumably, to limit State sovereignty above and beyond the original intent of State executives, luminaries such as Scelle, Lauterpacht and Conforti, as well as the members of the Institut de Droit International (IDI), have prodded national courts (referred to as ‘municipal’ or ‘domestic’ courts) to accept their role as local agents of the international legal system. The IDI Resolution from 1993, while acknowledging that a national court has to apply International Law (IL) ‘through its own methods of interpretation within each State’, urges national courts to ‘bas[e] themselves on the methods followed by international tribunals’ and ‘mak[e] every effort to interpret it as it would be interpreted by an international tribunal and avoid […] interpretations influenced by national interests.’ But insights from Political Economy (PE) suggest that this promise faces serious challenges. National constitutions and domestic politics heavily shape the scope of discretion that national courts enjoy. Throughout the twentieth century, domestic pressures led national courts to adopt a deferential attitude towards their respective executive branches. And when, since the early 2000s, national courts of key countries in Europe and Asia have begun to change course, they have sought to chart their own courses and explored unique trajectories for the development and implementation of IL rather than simply mimicking international courts. As this Chapter will suggest, insights from PE can offer an explanation.
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