The reception by the International Court of Justice of decisions of domestic Courts
The case-law of the International Court of Justice (ICJ, or ‘Court’) is full of references to decisions of domestic courts. Recent and ongoing cases in which the Court has been confronted with prior decisions of domestic courts include:
- Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), in which Belgium demands extradition of Mr. Hissène Habré, former President of the Republic of Chad, but the Chambre d’accusation of the Dakar Court of Appeal had held that it was without jurisdiction over the request for Mr. Habré’s extradition, on the grounds that he enjoyed immunity from jurisdiction by virtue of having been Head of State at the time the acts occurred.
- Jurisdictional Immunities of the State (Germany v. Italy), in which Germany alleges that “[t]hrough its judicial practice . . . Italy has infringed and continues to infringe its obligations towards Germany under international law”.
- Request for Interpretation of the Judgment of 31 March 2004 in the Case concerning Avena and Other Mexican Nationals (Mexico v. United States of America)(Mexico v. United States of America), in which the Court discussed whether the Avena Judgment lays down or implies that the courts of the United States are required to give direct effect to that judgment.
These cases may signal a trend. Domestic courts increasingly are asked to examine question of international law and/or questions that are relevant to subsequent proceedings in the ICJ. Conversely, the ICJ is more and more asked to review matters that also have been reviewed by domestic courts. That trend appears to be a consequence of the escalating degree in which international law deals with matters that are (also) regulated by domestic law, as well as the allocation of international rights and duties to individuals, who naturally tend to bring their claims before domestic courts. These developments have inspired a burgeoning literature that holds we have entered an era of judicial cooperation, communication and dialogue between courts of different states and between domestic and international courts.