National courts as international actors: jurisdictional implications
As an empirical matter, there is a little question that international law is being increasingly applied today by national courts around the world - a phenomenon that appears to be linked to the normative expansion of international law, the growing authority and influence of international institutions, and, more generally, to processes of economic, political and cultural interaction and integration (a.k.a. globalization). The increased reliance on international law by national courts may thus be a sign of the times: in an era of growing global inter-dependence, the invocation of international law responds to an increasing need to manage laws and policies across national boundaries. International law accommodates this need by equipping national courts with a "common language" through which they can communicate with institutions and constituencies situated in other polities; it also provides "focal points" for coordination and cooperation.
One result of the growing acceptance of the need for application of international law by national courts, has been the latter's concomitant disinclination to employ judicial 'avoidance techniques' – i.e., a series of techniques developed over time by national courts in order to reduce their exposure to international law (e.g., political question, act of state, non-justiciaiblity, lack of standing etc.) – shielding, in effect, governmental conduct from international law-based judicial review. Indeed, Eyal Benvenisti (who coined the term "avoidance techniques" in 1993), now acknowledges that national courts in many jurisdictions appear to be less deferential to the other branches of government and increasingly hold them accountable to international standards. In Benvenisti's own words – "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).
Part I of the present article introduces the proposition that a certain quantitative and qualitative change is taking place in the manner international law is being applied by national courts: more international law is applied by more national courts in a more consequential (and less parochial) way. The question I then focus on, in Part II, is whether, in light of these developments, some national courts should now be conceptualized as de facto international actors (drawing inspiration from Georges Scelles's classic work on dédoublement fonctionnel). 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.