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Reclaiming Democracy: The Strategic Uses of Foreign and International Law by National Courts

Published online by Cambridge University Press:  27 February 2017

Eyal Benvenisti
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Extract

Not so long ago the overwhelming majority of courts in democratic countries shared a reluctance to refer to foreign and international law. Their policy was to avoid any application of foreign sources of law that would clash with the position of their domestic governments. Many jurists find recourse to foreign and international law inappropriate. But even the supporters of reference to external sources of law hold this unexplored assumption that reliance on foreign and international law inevitably comes into tension with the value of national sovereignty. Hence, the scholarly debate is framed along the lines of the well-known broader debate on “the countermajoritarian difficulty.” This article questions this assumption of tension. It argues that for courts in most democratic countries—even if not for U.S. courts at present—referring to foreign and international law has become an effective instrument for empoweringthe domestic democratic processes by shielding them from external economic, political, and even legal pressures. Citing international law therefore actually bolsters domestic democratic processes and reclaims national sovereignty from the diverse forces of globalization. Stated differently, most national courts, seeking to maintain the vitality of their national political institutions and to safeguard their own domestic status vis-a-vis the political branches, cannot afford to ignore foreign and international law.

Type
Research Article
Information
American Journal of International Law , Volume 102 , Issue 2 , April 2008 , pp. 241 - 274
Copyright
Copyright © American Society of International Law 2008 

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Footnotes

*

Professor of Law, Tel Aviv University. I thank Ziv Bohrer, Shai Dothan, George W. Downs, Alon Harel, Tally Kritzman, Ariel Porat, and Eran Shamir–Borer for their very helpful comments on previous versions, and Shay Gurion for excellent research assistance. This article is based partly on research conducted since September 11, 2001, on the ways that national courts cope with international terrorism, funded by the Israel Science Foundation and the Minerva Center for Human Rights at Tel Aviv University. The article was written during a sabbatical leave made possible by a Humboldt Research Award of the Alexander von Humboldt Foundation.

References

1 The most passionate debate exists in the United States, most recently triggered by the decision in Roper v. Simmons, 543 U.S. 551 (2005). See, e.g., Alexander Aleinikoff, T., International Law, Sovereignty, and American Constitutionalism: Reflections on the Customary International Law Debate , 98 AJIL 91 (2004)Google Scholar; Roger, P. Alford, Misusing International Sources to Interpret the Constitution , 98 AJIL 57 Google Scholar; Anupam, Chander, Globalization and Distrust , 114 Yale L.J. 1193 (2005)Google Scholar; Vicki, Jackson, Constitutional Comparisons: Convergence, Resistance, Engagement , 119 Harv. L. Rev. 109 (2005)Google Scholar; Harold Hongju, Koh, International Law as Part of Our Law , 98 AJIL 43 (2004)Google Scholar; Gerald, L. Neuman, The Uses of International Law in Constitutional Interpretation , 98 AJIL 82 Google Scholar; Richard, A. Posner, The Supreme Court 2004 Term—Foreword: A Political Court , 119 Harv. L. Rev. 32 (2005)Google Scholar; Judith, Resnik, Law’s Migration: American Exceptionalism, Silent Dialogues, and Federalism’s Multiple Ports of Entry , 115 Yale L.J. 1564 (2006)Google Scholar; Jeremy, Waldron, Foreign Law and the Modem Ius Gentium, 119 Harv. L. Rev. 129 (2005)Google Scholar; Melissa, A. Waters, Creeping Monism: The Judicial Trend Toward Interpretive Incorporation of Human Rights Treaties , 107 Colum. L. Rev. 628 (2007)Google Scholar; Ernst, A. Young, Foreign Law and the Denominator Problem , 119 Harv. L. Rev. 148 (2005)Google Scholar.

2 See Alford, supra note 1, at 59 (characterizing an “international contermajoritarian difficulty” that results from “the strategy to utilize international law to interpret the Constitution”).

3 See, e.g., Medellín v. Texas, No. 06–984 (U.S. Mar. 25, 2008), available at <http://www.supremecourtus.gov/opinions/07pdf/06–984.pdf>. For an explanation of the Court’s retreat from international law during the Cold War era, see Harold, Hongju Koh, Transnational Public Law Litigation , 100 Yale L.J. 2347, 2360–66 (1991)Google Scholar.

4 Eyal, Benvenisti, Judicial Misgivings Regarding the Application of International Law: An Analysis of Attitudes of National Courts , 4 Eur. J. Int’l L. 159 (1993)Google Scholar.

5 The Arantzazu Mendi, [1939] A.C. 256, 264 (H.L.) (appeal taken from Eng.) (“Our State cannot speak with two voices on such a matter, the judiciary saying one thing, the executive another.”); see also Benvenisti, supra note 4, at 173–74; Ralph Steinhardt, Human Rights Litigation and the “One Voice” Orthodoxy in Foreign Affairs, in World Justice? U.S. Courts and International Human Rights 23 (Mark, Gibney ed., 1991)Google Scholar.

6 Koh, supra note 3.

7 Benvenisti, supra note 4, at 175.

8 See Anne–Marie, Slaughter, A Typology of Transjudicial Communication , 29 U. Rich. L. Rev. 99, 103–06 (1994)Google Scholar. In fact, as Karen Knop has noted, the transjudicial dialogue on human rights has blurred the distinction between comparative constitutional law and international law. Karen, Knop, Here and There: International Law in Domestic Courts , 32 N.Y.U. J. Int’l L. & Pol. 501 (2000)Google Scholar.

9 Anne–Marie, Slaughter, A New World Order 79 (2004)Google Scholar.

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11 See Hilton v.Guyot, 159 U.S. 113,163(1895) (“The extent to which the law of one nation. . . shall be allowed to operate within the dominion of another nation, depends upon . . . ‘the comity of nations.’”). For recent U.S. Supreme Court judgments concerning foreign state immunity and the interpretation of the Warsaw Convention, see Permanent Mission of India to the UN v. City of New York, 127S.Ct. 2352 (2007), and Olympic Airways v. Husain, 540 U.S. 644 (2004). Recently, the Supreme Court of Canada invoked “international comity” and “the objectives of order and fairness” in delineating Canada’s jurisdiction over Internet service providers. Soc’y of Composers, Authors & Music Publishers v. Canadian Ass’n of Internet Providers, [2004] 2 S.C.R. 427, 456, para. 60; see also August, Reinisch, The International Relations of National Courts: A Discourse on International Law Norms on Jurisdictional and Enforcement Immunity , in The Law of International Relations—Liber Amicorum Hanspeter Neuhold 289 (August, Reinisch & Ursula, Kriebaum eds., 2007)Google Scholar (discussing interjudicial dialogue on state immunity and the immunities of international organizations); Slaughter, supra note 9, at 86–91 (discussing the emergence of judicial comity in transnational civil litigation).

12 On the expansion of judicial power (and judicial autonomy) in recent years, see Ran, Hirschl, Towards Juristocracy: The Origins and Consequences of the New Constitutionalism (2004)Google Scholar (explaining this phenomenon as resulting from elites’ attempt to secure their dominant positions against challenges of the majority through the political process); Alec, Stone Sweet, The Politics of Constitutional Review in France and Europe , 5 I–Con 69, 80–81 (2007)Google Scholar (explaining the “juridical coup d’ état in France during the 1980s as a result of the frequent alternation of power among the political parties).

13 For an analysis of such noncooperative behavior, see infra notes 133–37 and corresponding text.

14 The Paquete Habana, 175 U.S. 677 (1900) (prize law); Hilton v. Guyot, 159 U.S. 113 (1895) (enforcement of foreign judgments); The Schooner Exchange v. M’Faddon, 11 U.S. (7 Cranch) 116 (1812) (foreign sovereign immunity).

15 Slaughter, supra note 9, at 12 (noting “the rising need for and capacity of different domestic government institutions to engage in activities beyond their borders, often with their foreign counterparts”).

16 Koh, supra note 3, at 2383–94, distinguishes between three types of judicial concerns: separation–of–powers concerns, judicial competence concerns, and comity concerns. The more frank judicial statements doubt whether their “engagement in the task of passing on the validity of foreign acts of state may hinder rather than further [their] country’s pursuit of goals,” Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 423 (1964), and mention the advantage of the diplomatic approach to resolving difficulties between sovereign nations over unilateral action by the courts of one of them, United States v. Alvarez–Machain, 504 U.S. 655, 669 n.16 (1992).

17 Benedict, Kingsbury, Nico, Krisch, & Richard, B. Stewart, The Emergence of Global Administrative Law , 68 Law & Contemp. Probs. 15 (2005)Google Scholar (elaborating on the different modalities of global regulation and the challenges they present); Weiler, J. H. H., The Geology of International Law—Governance, Democracy and Legitimacy , 64 Zeitschrift FÜr AuslÄndisches Offentliches Recht und VÖlkerrecht 547 (2004)Google Scholar (describing the emergence of the latest “layer” of international lawmaking—the regulatory layer).

18 As Curtis Bradley observes, the three branches of the U.S. government have kept the domestic political and legal processes insulated from the direct influence of external policy and lawmaking through a variety of “non–selfexecution filters.” Curtis, A. Bradley, International Delegations, the Structural Constitution, and Non–Self–Execution , 55 Stan. L. Rev. 1557, 1587–95 (2003)Google Scholar.

19 Helen V. Milner, Interests, Institutions, and Information (1997); Eyal, Benvenisti, Exit and Voice in the Age of Globalization , 98 Mich. L. Rev. 167 (1999)Google Scholar. On the influence exerted by domestic interests in negotiating trade agreements, see George, W. Downs & David, M. Rocke, Optimal Imperfection? (1995)Google Scholar.

20 On the growing power of private actors in transnational regulation, see, for example, Kingsbury, Krisch, & Stewart, supra note 17.

21 Legalization and World Politics (Judith, L. Goldstein et al. eds., 2001)Google Scholar.

22 United States v. Alvarez–Machain, 504 U.S. 655, 669 n.16 (1992).

23 This is not to suggest that all international delegations result in undesirable consequences from the perspective of democracy. A responsible and effective international institution, such as the European Court of Human Rights, can improve democratic processes and promote individual rights in member states. See, most recently, Robert, O. Keohane, Stephen, Macedo, & Andréw, Moravcsik, Democracy–Enhancing Multilateralism (IILJ Working Paper 2007/4, 2007)Google Scholar, available at <http://www.iilj.org>. But such institutions constitute only a small part of the various formal and informal institutions that regulate our lives, and their performance often leaves much to be desired. See infra notes 145–46 and corresponding text. In the key areas of regulation discussed in this article, the international institutions have failed to match the national courts’ level of scrutiny of intergovernmental cooperation.

24 Milner, supra note 19; Robert, D. Putnam, Diplomacy and Domestic Politics: The Logic of Two–Level Games , 42 Int’l Org. 427 (1988)Google Scholar.

25 See supra note 18, and infra notes 68–69 and corresponding text.

26 See, e.g., Arrest Warrant of 11 April 2000 (Dem. Rep. Congo v. Belg.), 2002 ICJ Rep. 3, paras. 56–58 (Feb. 14) (examining national courts’ jurisprudence to assess the extent to which heads of state enjoy immunity in foreign courts).

27 On the interplay between a supreme court (as the principal) and lower courts (as its agents), see McNollgast, , Conditions for Judicial Independence , 15 J. Contemp. Legal Issues 105 (2006)Google Scholar; McNollgast, , Politics and the Courts: A Positive Theory of Judicial Doctrine and the Rule of Law , 68 S. Cal. L. Rev. 1631 (1995)Google Scholar. The dependence of an international tribunal on national courts that are not formally bound by its decisions is even greater. Domestic courts have more enforcement powers than international tribunals. André, Noukaemper, Internationally Wrongful Acts in Domestic Courts , 101 AJIL 760, 796 (2007)Google Scholar. The tense relations that developed between the European Court of Justice and some of the national courts, in particular the German and Italian courts, confirm this theoretical observation. See Juliane, Kokott, Report on Germany , in The European Court and National Courts—Doctrine and Jurisprudence 77 Google Scholar ( Anne–Marie, Slaughter, Alec, Stone Sweet, & Weiler, J. H. H. eds., 1998)Google Scholar; Bruno, de Witte, Direct Effect, Supremacy, and the Nature of the Legal Order , in The Evolution of EU Law 177 (Paul, Craig & Gráinne, de Búrca eds., 1999)Google Scholar.

28 The lack of certainty about any such coordination lay at the basis of their earlier policy of deferment. See text at note 7 supra.

29 See the quote from the Alvarez–Machain judgment in text at note 22 supra.

30 Regina v. Bow St. Metro. Stipendiary Magistrate, ex parte Pinochet Ugarte (No. 3), [2000] 1 A.C. 147, 244 (H.L.) (appeal taken from Eng.) (per Hope, L.J.); see also Regina v. Sec’y of State for the Home Dep’t, ex parte Adan, [2001] 1 All E.R. 593, 616 (per Hobhouse, L.J.).

31 Jones v. Ministry of Interior (Kingdom of Saudi Arabia), [2006] UKHL 26, para. 63, [2007] 1 A.C. 270 (appeal taken from Eng.) (per Hoffmann, L.J.).

32 See infra text at notes 100–28.

33 For an analysis of the active role played by national courts in strengthening the EU, see Joseph, H. H. Weiler, A Quiet Revolution: The European Court of Justice and Its Interlocutors , 26 Comp. Pol. Stud. 510 (1994)Google Scholar.

34 For example, in the 2004 case Ferrini v. Federal Republic of Germany, the Italian Court of Cassation criticized a decision of the Greek Court of Cassation of 2000, Prefecture of Voiotia v. Federal Republic of Germany, while the House of Lords criticized the Ferrini judgment in Jones, supra note 31, paras. 22, 63. See Pasquale De, Sena & Francesca De, Vittor, State Immunity and Human Rights: The Italian Supreme Court Decision on the Ferrini Case, 16 Eur. J. Int’l L. 89, 101–02 (2005)Google Scholar; see also infra note 136.

35 Minors Oposa v. Sec’y of Dep’t of Env’t & Natural Res. (Sup. Ct. 1993), 33ILM 173 (1994). This celebrated case was cited by the Bangladeshi and Indian courts, and in numerous scholarly articles across the globe. See, e.g., Farooque v. Gov’t of Bangladesh, 17 B.L.D. (A.D.) 1 (1997) (App. Div. 1996), available at <http://www.elaw.org/resources/printable.asp?id=139>; A.P. Pollution Control Bd. (II) v. Nayudu, [2000] INSC 679, [2001] 2 S.C.C. 62 (India Sup. Ct.), available at <http://www.commonlii.org/in/cases/INSC/2000/679.html>.

36 See text at notes 78–99 infra.

37 Indeed, judgments discussed in part II are replete with references to comparative constitutional law and in particular to international law as interpreted by other courts. The discord within the U.S. Supreme Court regarding comparative constitutional law and its reluctance in recent years to cite international law may perhaps be influenced by the relative robustness of the domestic processes in the United States, which currently do not require judicial support. On the debate in the United States on this matter, see supra note 1.

38 See the decisions of the Canadian, New Zealand, and Indian courts, discussed in notes 56, 58, and 59 infra and corresponding text.

39 Convention Relating to the Status of Refugees, July 28, 1951, 189 UNTS 150, amended by Protocol Relating to the Status of Refugees, Jan. 31, 1967, 19 UST 6223, 606 UNTS 267 [hereinafter 1951 Refugee Convention].

40 See Slaughter, supra note 9, ch. 2.

41 Hersch, Lauterpacht, The Development of International Law by the International Courtof Justice 227–28, 267–93 (1958) (“effective” interpretation)Google Scholar; Rudolf, Bernhardt, Evolutive Treaty Interpretation, Especially of the European Convention on Human Rights , 42 Germ. Y.B. Int’l L. 11 (1999)Google Scholar; Maclachlan, C., The Principle of Systemic Integration and Article 31(3)(c) of the Vienna Convention , 54 Int’l & Comp. L.Q. 279 (2005)Google Scholar; French, D., Treaty Interpretation and the Incorporation of Extraneous Legal Rules , 55 Int’l & Comp. L.Q. 281 (2006)Google Scholar (“systemic” interpretation).

42 See, e.g., Theodor, Meron, Revival of Customary Humanitarian Law , 99 AJIL 817, 819–20 (2005)Google Scholar. Meron comments on the ICJ’s “complete failure to inquire whether opinio juris and practice support the crystallization of [the relevant articles] into customary law.” Meron welcomes this “more relaxed approach” and views it as “essential. . . to the effectiveness of customary law.” Id.

43 See text at note 11 supra.

44 The main UN body set up to curb terrorism is the Counter–Terrorism Committee. For its mandate and activities, see Counter–Terrorism Committee (2007), at <http://www.un.org/sc/ctc/>.

45 See the U.S. government’s 2003 PSI, CRS Report for Congress, Proliferation Security Initiative (PSI) (Sept. 14, 2006), available at <http://fpc.state.gov/documents/organization/74917.pdf>.

46 See Financial Action Task Force, 9 Special Recommendations (SR) on Terrorist Financing (TF) (2004), available at <http://www.fatf–gafi.org>.

47 See Eur. Parl. Ass., Alleged Secret Detentions and Unlawful Inter–state Transfers of Detainees Involving Council of Europe Member States, Doc. No. 10957 (2006), available at <http://assembly.coe.int/Documents/WorkingDocs/doc06/edocl0957.pdf>; see also Monica, Hakimi, The Council of Europe Addresses CIA Rendition and Detention Program , 101 AJIL 442 (2007)Google Scholar.

48 In some countries, this legislative process was brief and did not encounter any significant opposition. Bills were passed within a few weeks or days (or even hours in the case of Germany) of the September 11 events. On the legislative changes in the various democratic countries, see the comparative studies in Terrorism as a Challenge for National and International Law: security Versus Liberty? (Walter, C. et al. eds., 2004)Google Scholar; Kent, Roach, Sources and Trends in Post 9/11 Anti–terrorism Laws (U. Toronto Legal Stud. Res. Paper 899291, Apr. 2006)Google Scholar, available at <http://ssrn.com/abstract=899291>.

49 On this wartime jurisprudence, see William, H. Rehnquist, All The Laws But One: Civil Liberties In Wartime (1998)Google Scholar; Brian Simpson, A. W., In The Highest Degree Odious: Detention Without Trial In Wartime Britain (1994)Google Scholar.

50 As Justice Jackson, wrote in dissent in Korematsu v. United States , 323 U.S. 214, 245 (1944)Google Scholar:

In the very nature of things, military decisions are not susceptible of intelligent judicial appraisal. They do not pretend to rest on evidence, but are made on information that often would not be admissible and on assumptions that could not be proved. . . . Hence courts can never have any real alternative to accepting the mere declaration of the authority that issued the order that it was reasonably necessary from a military viewpoint.

51 Lord, Hoffmann explained in Secretary of State for the Home Department v. Rehman , [2001] UKHL 47, [2001] 3 W.L.R. 877 Google Scholar, para. 50 (appeal taken from Eng.), his approval of the secretary of state’s decision to deport a Pakistani national based on (disputed) evidence linking him to Islamic terrorist groups operating on the Indian subcontinent:

[T]he question of whether something is “in the interests” of national security is not a question of law. It is a matter of judgment and policy. Under the constitution of the United Kingdom and most other countries, decisions as to whether something is or is not in the interests of national security are not a matter for judicial decision. They are entrusted to the executive.

Lord Slynn, id., para. 26, stated that “the commission must give due weight to the assessment and conclusions of the Secretary of State in the light at any particular time of his responsibilities, or of government policy and the means at his disposal of being informed of and understanding the problems involved.” Lord Slynn added that the secretary of state is “in the best position to judge what national security requires even if his decision is open to review. The assessment of what is needed in the light of changing circumstances is primarily for him.” Lord, Steyn, id., para. 29, asserted: “The dynamics of the role of the Secretary of State, charged with the power and duty to consider deportation on grounds of national security, irresistibly supports this analysis.”Google Scholar

52 As Lord Steyn asserted in the same judgment, id., para. 29,” [T]he tragic events of 11 September 2001 in New York reinforce compellingly that no other approach is possible.”

53 Lord, Steyn, 2000–2005: Laying the Foundations of Human Rights Law in the United Kingdom , 4 Eur. Hum. Rts. L. Rev. 349, 350 (2005)Google Scholar.

54 Suresh v. Canada (Minister of Citizenship & Immigration), [2002] 1 S.C.R. 3 (considering the matter of Suresh, a member of the Tamil Tigers, who were fighting against the Sri Lankan government, and approving in principle the decision to deport Suresh to Sri Lanka, despite the possibility that he would be tortured there). For criticism of the decision, see, for example, Kent, Roach, Must We Trade Rights for Security? The Choice Between Smart, Harsh, or Proportionate Security Strategies in Canada and Britain , 27 Cardozo L. Rev. 2151, 2194 (2006)Google Scholar.

55 See also the order of October 16, 2006, by Deputy Judge MacKay of the Federal Court of Canada in Re JabalLzh, [2006] F.C. 1230, 2006 Fed.C.C. lexis 1441 (ruling that an Egyptian national who had resided in Canada since May 1996 could be deported, but not to countries where he would face a serious risk of being tortured).

56 Charkaoui v. Canada (Citizenship & Immigration), [2007] S.C.C. 9, 2007 Can. Sup. Ct. lexis 9.

57 For a review of these decisions, see Eyal, Benvenisti, United We Stand: National Courts Reviewing Counterterrorism Measures , in Counterterrorism: Democracy’s Challenge (Andrea, Bianchi & Alexis, Keller eds., forthcoming 2008)Google Scholar.

58 The prohibition on torture has been the focus of several decisions, including Suresh, [2002] 1 S.C.R. 3; A (FC) v. Sec’y of State for the Home Dep’t, [2005] UKHL 71; and Zaoui v. Attorney–General (No. 2), [2006] 1 N.Z.L.R. 289 (Sup. Ct.), 2005 NZLR lexis 22. The U.S. Supreme Court referred to the Third 1949 Geneva Convention in Hamdan v. Rumsfeld, 126 S .Ct. 2749 (2006), and the Israeli Court has been actively engaged in the interpretation and implementation of the law on armed conflict. On the jurisprudence of the Israeli courts related to counterterrorism, see Daphne, Barak–Erez, The International Law of Human Rights and Constitutional Law: A Case Study of an Expanding Dialogue , 2 I–CON 611 (2004)Google Scholar; Yigal, Mersel, Judicial Review of Counter–terrorism Measures: The Israeli Model for the Role of the Judiciary During the Terror Era , 38 N.Y.U. J. Int’l L. & Pol. 67 (2005)Google Scholar.

59 The Indian Court, in the case of People’s Union for Civil Liberties v. Union of India, [2004] 1 LRI 1 (Sup. Ct. 2003), available at <http://www.commonlii.org/in/cases/INSC/2004/18.html> (concerning the constitutionality of the Indian 2002 Prevention of Terrorism Act), refers to the institution of the “independent counsel,” appointed in New Zealand and elsewhere. Id., para. 60.

60 A (FC) v. Sec’y of State for the Home Dep’t, [2005] UKHL 71 (appeal taken from Eng.). See also Lord Carswell’s opinion in the Belmarsh Detainees decision, A (FC) v. Secretary of State for the Home Department, [2004] UKHL 56, para. 150 (appeal taken from Eng.) (citing President Barak of the Israel High Court of Justice on the need to follow the rule of law when combating terrorism).

61 In the recent Charkaoui decision, supra note 56, the Canadian Supreme Court presented the procedure adopted in the United Kingdom as a model for the Canadian Parliament’s consideration when it reenacts the statute. See id., para. 86 (“Why the drafters of the legislation did not provide for special counsel to objectively review the material . . . as . . . is presently done in the United Kingdom, has not been explained.”).

62 People’s Union for Civil Liberties v. Union of India, supra note 59, paras. 10, 12.

63 Id, para. 12 (quoting A v. Sec’y of State for the Home Dep’t, [2002] EWCA (Civ) 1502, [2004] Q.B. 335, para. 44).

64 See text at notes 100–28.

65 See discussion of Suresh, text at note 54 supra; Zaoui, supra note 58.

66 In the European Arrest Warrant Act case, the German Constitutional Court examined the European Arrest Warrant Act passed by the German Bundestag to implement the Framework Decision on the European Arrest Warrant, which had been promulgated with a view to facilitating inter–European cooperation in combating crime and terrorism. The Court found the Act to infringe on constitutional rights in a manner beyond what was necessary to meet the goals of the European policy. It thus remanded the matter to the legislature to revise the Act so that the restriction of the fundamental right to freedom from extradition would be proportionate. Bundesverfassungsgericht [BVerfG], July 18, 2005, No. 2 BvR 2236/04, available at <http://www.bverfg.de/entscheidungen/rs20050718_2bvr223604en.html>. In 1996 the French Constitutional Council sent back to the legislature certain measures concerning illegal entrants suspected of being terrorists that criminalized assistance to them and authorized searching them without a judicial warrant. Conseil constitutionnel, decision no. 96–377DC, July 16, 1996, translated at <http://www.conseil–constitutionnel.fr/langues/anglais/a96377dc.pdf>. See also Charkaoui, supra note 56, which required the Canadian legislature to respond by reshaping the hearing procedures.

67 The French Constitutional Council found a certain measure unconstitutional because it had retroactive force in overseas territories. Decision no. 96–377DC, supra note 66. The German Constitutional Court found the Air Security Act of 2005 unconstitutional because it violated, inter alia, the principle of human dignity. BVerfG, Feb. 15, 2006, 115 Entscheidungen des Bundesverfassungsgerichts [BVerfGE] 118, availableat <http://www.bverfg.de/entscheidungen/rs20060215_lbvr035705.html>; see Nina Naske & Georg Nolte, Case Report: “Aerial Security Law,” in 101 AJIL 466 (2007). In 2004 the Indian Supreme Court resorted to implicit constitutional review when it read into the 2002 Prevention of Terrorism Act several additional conditions to some key provisions of the Act, viewing such conditions as constitutionally required. People’s Union for Civil Liberties v. Union of India, supra note 59.

68 Rasul v. Bush, 542 U.S. 466 (2004); Hamdi v. Rumsfeld, 542 U.S. 507 (2004).

69 Hamdan v. Rumsfeld, 126 Sup.Ct. *2749 (2006) (lexis).

70 Justice Stevens, writing for the majority, stated that common Article 3’s “requirements are general ones, crafted to accommodate a wide variety of legal systems. But requirements they are nonetheless. The commission . . . convened to try Hamdan does not meet those requirements.” Id. at *2798.

71 As Justice Breyer said in concurring in Hamdan, id. at *2799:

The Court’s conclusion ultimately rests upon a single ground: Congress has not issued the Executive a “blank check.” . . . Nothing prevents the President from returning to Congress to seek the authority he believes necessary.

Where, as here, no emergency prevents consultation with Congress, judicial insistence upon that consultation does not weaken our Nation’s ability to deal with danger. To the contrary, that insistence strengthens the Nation’s ability to determine—through democratic means—how best to do so. The Constitution places its faith in those democratic means. Our Court today simply does the same.

72 According to Justice Kennedy (joined by Justices Souter, Ginsburg, and Breyer): “Because Congress has prescribed these limits, Congress can change them, requiring a new analysis consistent with the Constitution and other governing laws.” Id. at *2808 (emphasis added).

73 Boumediene v. Bush, 127 S.Ct. 1478 (2007), reh’g granted, 127 S.Ct. 3078. The Military Commissions Act of 2006 was passed by the U.S. Senate on September 28, and by the U.S. House of Representatives on September 29 of that year in response to the decision in Hamdi.

74 John, Yoo, Op–Ed, Sending a Message: Congress to Courts: Get out of the War on Terror , Wall St. J. Online, Oct. 19, 2006 Google Scholar, at <http://www.opinionjournal.com/editorial/feature.html?id=110009113>.

75 Military Commissions Act of 2006, Pub. L. No. 109–366, 120 Stat. 2600, §950j(b) (to be codified at 10 U.S.C. §§948a–950w and other sections of titles 10, 18, 28, and 42).

76 Id. §948b(g).

77 Particularly in the United Kingdom, the courts have only the authority under the Human Rights Act of 1998 to declare a legislative act incompatible with the European Convention on Human Rights without invalidating it.

78 The list includes the courts in Brazil, Chile, Costa Rica, Ecuador, India, Nepal, Pakistan, Peru, the Philippines, South Africa, Sri Lanka, Tanzania, Turkey, and Uganda. For a review of the practice of these courts, see William, Onzivu, International Environmental law, the Public’s Health, and Domestic Environmental Governance in Developing Countries , 21 am. U. Int’l L. Rev. 597, 665–72 (2006)Google Scholar; Carl, Bruch et al., Constitutional Environmental Law: Giving Force to Fundamental Principles in Africa , 26 Colum. J. Envtl. L. 131, 132–35, 150–88 (2001)Google Scholar; Sheetal, B. Shah, Illuminating the Possible in the Developing World: Guaranteeing the Human Right to Health in India , 32 Vand. J. Transnat’l 1435 (1999)Google Scholar; Michael, J. Andersen, International Environmental Law in Indian Courts, 7 Rev. Eur. Community & Int’l Envtl. L. 21 (1998)Google Scholar; Daniel, Bodansky & Jutta, Brunnée, The Role of National Courts in the Field of International Environmental Law, 7 Rev. Eur. Community & Int’l Envtl. L. 11 (1998)Google Scholar; Vijayashri, Sripati, Toward Fifty Years of Constitutionalism and Fundamental Rights in India: Looking Back to See Ahead (1950–2000) , 14 Am. U. Int’l L. Rev. 413, 470–71 (1998)Google Scholar.

79 See Shikhar, Ranjan, Legal Controls on the Transboundary Movements ofHazardous Wastes into India—An Evaluation , 41 Indian J. Int’l L. 44 (2001)Google Scholar (describing the Indian government’s response, primarily by introducing new legislation, as coming only after the courts have acted on public petitions).

80 Research Found, for Sci., Tech. & Natural Res. Policy v. Union of India, W.P. 657/1995, Jan. 5, 2005, available, at <http://www.judis.nic.in/supremecourt/qrydisp.asp?tfhm=26698>.

81 Abraham, C. M., Environmental Jurisprudence in India 62 (1999)Google Scholar; see also Shah, supra note 78, at 483–84 (noting that the Indian Court has justified its interventions in the environmental sphere by asserting that it is temporarily filling the void created by the lack of strong executive and legislative branches).

82 In Steel Authority of India Ltd. v. National Union of Waterfront Workers, [2001] 7S.C.C. 1, available at<http://www.commonlii.org/in/cases/INSC/2001/445.html>, the Indian Supreme Court refused to give an expansive interpretation of provisions of the Contract Labour (Regulation and Abolition) Act of 1970, finding them to be “clear and explicit.” The Court failed to find any flaw in the Act, which, it stated, “was passed to prevent die exploitation of contract labour and also to introduce better conditions of work.” Labor unions in India have been successful in securing legislation designed to protect their interests, although ultimately their victories have led to an increase in the informal sector. Timothy, Besley & Robin, Burgess, Can Labor Regulation Hinder Economic Performance? Evidence from India , 119 Q.J. Econ. 91 (2004)Google Scholar.

83 See, e.g., Dep’t for Env’t, Food & Rural Affairs v. ASDA Stores Ltd., [2003] UKHL 71, [2004] L.L.R. 439 (appeal taken from Eng.) (determining that the contravention of European Community marketing standards does not as such create criminal responsibility). Lord Nicholls of Birkenhead trusts the judgment of Parliament. Id., para. 26.

84 See, e.g., Narmada Bachao Andolan v. Union of India, [2000] 10 S.C.C. 664, available at <http://judis.nic.in/supremecourt/qrydisp.asp?tfnm=17165> (approving the displacement of indigenous and tribal populations due to the construction of a dam on the Narmada River, with the court considering, inter alia, ILO Convention No. 107, the Indigenous and Tribal Peoples Convention of 1957, and principles of international environmental law). An alternative explanation of the judicial preference to protect the environment but not labor rights would be class differences. Upendra Baxi criticizes the Steel Authority decision, supra note 82, as an example of the Indian courts’ inclination to “generate a tender solicitude for the rights (guaranteed by multilateral trade agreements of which the WTO is an exemplar) of the multinational corporations and of the ‘community’ of direct foreign investors even at the cost of the not so ‘benign neglect’ of the fundamental rights of Indian citizens.” Upendra, Baxi, “A Known but an Indifferent Judge”: Situating Ronald Dworkin in Contemporary Indian Jurisprudence , 1 I–Con 557, 568 (2003)Google Scholar; see also Usha, Ramanathan, Illegality and the Urban Poor , 41 Econ. & Pol. Wkly. 3193 (2006)Google Scholar, available at <http://www.epw.org.in/epw/user/viewAbstract.jsp> (suggesting that Indian courts give precedence to urban developers over slum dwellers and narrowly interpret laws that protect the poor).

85 Zia v. WAPDA, P L D 1994 Sup. Ct. 693, available at <http://www.elaw.org/assets/word/Zia%20v.%20WAPDA.doc>.

86 Farooque v. Gov’t of Bangladesh, supra note 35. After noting the recent trend of judicial activism of the Supreme Court of India to protect the environment through public litigation, Judge Rahman observed that in Bangladesh “such cases are just knocking at the door of the court for environmental policy making” and that the court was involving itself in them. A global trend toward liberalizing the rules of standing was exemplified by the Indian Supreme Court, which “took the view that when any member of a public or social organization so espouse[d] the cause of the poor and the down–trodden, such member should be permitted to move the Court even by merely writing a letter without incurring expenditure of his own.” Furthermore, he added:

The operation of Public Interest Litigation should not be restricted to the violation of the defined fundamental Rights alone. In this modern age of technology, scientific advancement, economic progress and industrial growth the socio–economic rights are under phenomenal change. New rights . . . call for collective protection and therefore we must act to protect all the constitutional, fundamental and statutory rights as contemplated within the four corners of our Constitution.

87 Bulankulama v. Sec’y, Ministry of Indus. Dev., [2000] L.K.S.C. 18, available at <http://www.commonlii.org/lk/cases/LKSC/2000/18/html>.

88 A.P. Pollution Control Bd. (II) v. Nayudu, supra note 35.

89 Kumarv. State of Bihar, [1991] S.C.C. 598, availableat <http://www.commonlii.org/in/cases/INSC/1991/3.html>; Narmada Bachao Andolan, supra note 84.

90 Essar Oil Ltd. v. Halar Utkarsh Samiti, [2004] 2 S.C.C. 392, available at <http://www.commonlii.org/in/cases/INSC/2004/31.html>.

91 Vellore Citizens Welfare Forum v. Union of India, [1996] 5 S.C.C. 6A7 Google Scholar , available at <http://www.commorlii.org/in/cases/INSC/1996/1027.html> (sustainable development, polluter pays, precautionary principle); Indian Council for Enviro–Legal Action v. Union of India, 1996 A.I.R. SC 1446 Google Scholar, available at <http://www.commonlii.org/in/cases/INSC/1996/244.html> (polluter pays); Mehta v. Union of India, [1996] INSC 1661 Google Scholar, available at <http://www.commonlii.org/in/cases/INSC/1996/1661.html> (precautionary principle).

92 See generally Karnataka Indus. Areas Dev. Bd. v. Kenchappa, 2006 A.I.R. SC 2546 Google Scholar, available at <http://www.elaw.org/resources/printable.asp?id=3133>. See also Narmada Bachao Andolan, supra note 84.

93 Karnataka Indus. Areas Dev. Bd., supra note 92, para. 54: “The Earth Summit held in Rio de Janeiro in 1992 altered the discourses of environmentalism in significant ways. Sustainability, introduced in the 1987 Brundtland Report—Our Common Future—and enacted Rio agreements, became a new and accepted code word for development” (emphasis added).

94 Vellore Citizens Welfare Forum, supra note 91 (referring to the concept of sustainable development). The Kerala High Court viewed the other principles as part of customary international law based on the Indian Supreme Court’s reasoning. Soman v. Geologist, [2004] 3 K.L.T. 577, para. 15, available at <http://www.elaw.org/resources/printable.aspFid=2680>.

95 Research Found, for Sci., Tech. & Natural Res. Policy v. Union of India, supra note 80, para. 33.

96 Zia, supra note 85, para. 9. Despite the fact that the international documents do not have the force of binding law, the Court observed,

the fact remains that they have a persuasive value and command respect. The Rio Declaration is the product of hectic discussion among the leaders of the nations of the world and it was after negotiations between the developed and the developing countries that an almost consensus declaration had been sorted out. Environment is an international problem having no frontiers creating transboundary effects. In this field every nation has to cooperate and contribute and for this reason the Rio Declaration would serve as a great binding force and to create discipline among the nations while dealing with environmental problems. Coming back to the present subject, it would not be out of place to mention that Principle No. 15 envisages rule of precaution and prudence.

97 Bulankulama v. Sec’y, Ministry of Indus. Dev., supra note 87 (Sri Lanka, referring to the international declarations as “international standard setting instruments”); Surya Prasad Sharma Dhungel v. Godavari Marble Indus., 4 Int’l Envtl.L. Rep.321 (2004) (Nepal Sup. Ct. 1995) (en banc), available at <http://www.elaw.org/resources/printable.asp?id=2287> (referring to the principle of sustainable development); Farooque v. Gov’t of Bangladesh, supra note 35 (referring to the Rio Declaration on Environment and Development as a source of inspiration).

98 See Harish, Salve, Justice Between Generations: Environment and Social Justice , in Supreme but Not Infallible: Essays in Honour of the Supreme Court of India 360, 372 (Kirpal, B. N. et al. eds., 2000)Google Scholar (suggesting that in Centre for Environment Law, WWF I v. Union of India , [1999] 1 S.C.C. 263 Google Scholar, the Indian Supreme Court ordered the closing of tanneries despite the fact that those tanneries were “a major foreign exchange earner for the country as leaders in the export of leather goods”).

99 A prominent commentator has accused the Indian Supreme Court of “licit and illicit judicial complicity with global capitalism.” Baxi, supra note 84, at 569.

100 On the modifications introduced by destination states since the early 1990s, see Jane, Mcadam, Complementary Protection in International Refugee Law (2007)Google Scholar; James, C. Hathaway, Harmonizing for Whom? The Devaluation of Refugee Protection in the Era of European Economic Integration , 26 Cornell Int’l L.J. 719 (1993)Google Scholar; Gerald, L. Neuman, Buffer Zones Against Refugees: Dublin, Schengen, and the German Asylum Amendment , 33 Va. J. Int’l L. 503 (1993)Google Scholar; Karin, Oellers–Frahm & Andreas, Zimmermann, France’s and Germany’s Constitutional Changes and Their Impact on Migration Law: Policy and Practice , 38 Ger. Y.B. Int’l L. 249 (1995)Google Scholar; Liza, Schuster, A Comparative Analysis of the Asylum Policy of Seven European Governments , 13 J. Refugee Stud. 118 (2000)Google Scholar. See also the special issue of volume 13 of the Journal of Refugee Studies, No. 1, March 2000, devoted to the policies of European countries.

101 Hugo, Storey, The Advanced Refugee Law Workshop Experience: An IARLJ Perspective , 15 Int’l J. Refugee L. 422, 422 (2003)Google Scholar.

102 IARLJ Constitution, as amended Oct. 17, 1998 Google Scholar, available at <http://www.iarlj.nl/general/>.

103 Id., Art. 2(2).

104 James, C. Hathaway, A Forum for the Transnational Development of Refugee Law: The IARL J’s Advanced Refugee Law Workshop , 15 Int’l J. Refugee L. 418, 419 (2003)Google Scholar.

105 In particular, the qualification for refugee status was discussed. See 1951 Refugee Convention, supra note 39, Art. 1A(2):

For the purposes of the present Convention, the term “refugee” shall apply to any person who

. . .

(2). . . owing to well–founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country . . . .

106 Januzi (FC) v. Sec’y of State for the Home Dep’t, [2006] UKHL 5, [2006] 2A.C. 426, para. 62 (appeal taken from Eng.).

107 Canada (Attorney Gen.) v. Ward, [1993] 2 S.C.R. 689.

108 In re Acosta, 19 I. & N.Dec. 211 (1985), 1985 BIA lexis 2. It is noteworthy that the decision takes into account “various international interpretations” of the term “refugee” in the Convention, explaining that it was appropriate to do so “ [s]ince Congress intended the definition of a refugee in [the implementing legislation] to conform to the [Convention].” The board noted, however, that “these interpretations are not binding upon us in construing the elements created by [the implementing legislation], for the determination of who should be considered a refugee is ultimately left . . . to each state in whose territory a refugee finds himself.” In addition, the decision stated that “[w]hile we do not consider the [Office of the United Nations High Commissioner for Refugees’] Handbook to be controlling, the Handbook nevertheless is a useful tool to the extent that it provides us with one internationally recognized interpretation of the [Convention].” Id. at 220–21.

109 A v. Minister for Immigration & Ethnic Affairs, (1997) 190 C.L.R. 225; see also Al–Kateb v. Godwin, (2004) 219 C.L.R. 562; Minister for Immigration & Multicultural Affairs v. Khawar, (2002) 210 C.L.R. 1; S v. Minister for Immigration & Multicultural Affairs, (2004) 217 C.L.R. 387; Minister for Immigration & Multicultural Affairs v. Applicant Z, (2001) 116 F.C.R. 36 (Fed. Ct. Austl.); Applicant S v. Minister for Immigration & Multicultural Affairs, [2001] FCA 1411 (Fed. Ct. Austl.); In re GJ, [1998] Immigr. & Nationalityl. Rep. 387 (N.Z. Refugee Status Auth.);Regina v. Immigration Appeal Tribunal, ex parte Shah, [1999] 2 A.C. 629, 643 (H.L.) (appeal taken from Eng.).

110 Ex parte Shah, supra note 109, at 643 (Steyn, L.J.).

111 Sanchez–Trujillo v. INS, 801 F.2d 1571, 1576 (9th Cir. 1986).

112 Hernandez–Montiel v. INS, 225 F.3d 1084, 1093 (9th Cir. 2000).

113 For example, the House of Lords in Januzi, supra note 106, prefers the English and Canadian approach to that supported by some courts in New Zealand and Australia.

114 The U.S. Supreme Court decision in Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155,183 (1993), is an example of narrow interpretation. On the basis of a textual reading of the 1951 Convention in light of its travaux préparatoires, the Court concluded that the non–refoulement obligation did not apply to individuals situated outside the territorial jurisdiction of the state. For criticism of this interpretation, see Harold Hongju, Koh, The “Haiti Paradigm” in United States Human Rights Policy , 103 Yale L.J. 2391 (1994)Google Scholar. This interpretation, however, was endorsed by the House of Lords in Regina v. Immigration Officer at Prague Airport, ex parte European Roma Rights Centre, [2004] UKHL 55, para. 17 (appeal taken from Eng.), and by the Australian High Court in Khawar, supra note 109, para. 42. Lord Bingham of Cornhill emphasized that “[t]he House was referred to no judicial authority to contrary effect.” Ex parte Eur. Roma Rights Ctr., supra, para. 17.

115 Hernandez–Montiel, supra note 112.

116 Regina v. Sec’y of State for the Home Dep’t, ex parte Adan, supra note 30, at 616 (Hobhouse, L.J.):

The scheme of the Geneva Convention is that any such differences should be referred to and resolved by the International Court of Justice under art 38 of that convention. However there is no prospect that the presently relevant difference (which has existed now for many years) will be resolved in that way.

So long as such differences continue to exist, the intention of the Geneva Convention to provide a uniformity of approach to the refugee problem will be frustrated and the scheme of the international response will remain grossly distorted.

117 Id. at 617.

118 See Oellers–Frahm & Zimmermann, supra note 100, at 260–63 (noting that the constitutional amendment in France was designed to circumvent the outcome of a previous decision of the Constitutional Council).

119 On the differences of interpretation, see Catherine, Phuong, Persecution by Non–state Agents: Comparative Judicial Interpretations of the 1951 Refugee Convention , 4 Eur. J. Migration & L. 521 (2002)Google Scholar. The European Union’s Qualification Directive of 2004, infra note 140, resolved these differences, recognizing nonstate actors as potential persecutors. Guy, S. Goodwin–g=Gill & Jane, Mcadam, The Refugee in International Law 98–100 (3d ed. 2007)Google Scholar. On the “long battle” in Germany over legislation that, inter alia, would adopt this interpretation, see Marion, Schmid–Drüner, Germany’s New Immigration Law: A Paradigm Shift? 8 Eur. J. Migration & L. 191 (2006)Google Scholar.

120 Adan, supra note 30, at 600.

121 Adan, supra note 30. Most recently, the Canadian Federal Court, following the approach of the House of Lords, refused to allow the return of a Colombian asylum seeker to the United States. Canadian Council for Refugees v. The Queen, [2007] F.C. 1262, available at <http://www.canlii.org/en/ca/fct/doc/2007/2007fcl262/2007fcl262.pdf>.

122 “Defection” is used in the sense of failing to adopt the position of the majority of courts, which, as Goodwin– Gill and McAdam suggest, seems to be the more plausible interpretation of the Convention text. Goodwin–Gill & MCAdam, supra note 199, at 98–100.

123 Oellers–Frahm & Zimmermann, supra note 100.

124 Bundesverwaltungsgericht [Federal Administrative Court] [BVerwG], Jan. 18, 1994, 95 Entscheidungen des Bundesverwaltungsgerichts [BVerwGE] 42. Article 16a(1) of the Basic Law provides: “Persons persecuted on political grounds shall have the right of asylum” (emphasis added). The German legislation, according to this court, was in line with the 1951 Convention, since the Convention also insisted on state–sponsored persecution as a condition for “refugeeness.” This interpretation was based, according to established rules of treaty interpretation, on the ordinary meaning of the text, in light of its object and purpose. The Convention, recalled the court, was drafted with the persecution by regimes such as Nazi Germany and the Soviet Union in mind. See Berthold, Huber, The Application of Human Rights Standards by German Courts to Asylum–Seekers, Refugees and Other Migrants , 3 Eur. J. Migration & L. 171, 174 (2001)Google Scholar.

125 BVerwG, Apr. 15, 1997, 104 BVerwGE 254. The German court ruled further that the obligation under the European Convention on Human Rights not to expel individuals to jurisdictions where they might face inhumane treatment was also confined to situations where such treatment was expected from the ruling state authority or, exceptionally, the quasi–state authority. Id. at 269.

126 BVerwG, Apr. 15, 1997, 104 BVerwGE 265, 272 (referring to Ahmed v. Austria, 1996–VI Eur. Ct. H.R. 2195). Another explanation given for disregarding the European Court’s ruling was that it was obiter dictum. BVerwG, Sept. 2, 1997, 105 BVerwGE 187, 189; see Huber, supra note 124, at 176.

127 BverfG, Aug. 10, 2000, No. 260/98, available at <http://www.bundesverfassungsgericht.de/entscheidungen/rk20000810_2bvr026098.html>. Note that according to the prevailing German law at the time, if an asylum seeker was neither recognized as entitled to asylum under Article 16a(1) of the Basic Law nor granted the status of a refugee under section 51 of the Aliens Act, then he or she might still enjoy so–called subsidiary protection. The latter satisfied the requirements of the European Convention on Human Rights, see T.I.v. United Kingdom, 2000–III Eur. Ct. H.R. 435, and the House of Lords, which approved the removal of Tamil refugees from the United Kingdom to Germany, see Regina v. Sec’y of State for the Home Dep’t, ex parte Thangarasa, [2002] UKHL 36, [2003] 1 A.C. 920 (appeal taken from Eng.).

128 See Neuman, supra note 100 (referring to the potentially adverse consequences of convergence in Europe in the early 1990s).

129 Currently, interjudicial cooperation cannot be traced in the sphere of labor law. National courts do cite international standards, including ILO conventions, but not each other. For a compendium of national judgments referring to international labor law, see Use of International Law by Domestic Courts, available at <http://training.itcilo.it/ils/CD_Use_Int_Law_web/Additional/English/default.htm>.

130 Novartis AG v. Union of India (Aug. 6, 2007, High Ct. Madras), available at <http://www.commonlii/in/cases/INTNHC/2007/2604.html>.

131 “We have borne in mind the object which the Amending Act wanted to achieve namely,... to provide easy access to the citizens of this country to life saving drugs and to discharge the [legislature’s] Constitutional obligation of providing good health care to its citizens.” Id., para. 19.

132 This decision follows an aborted attempt by international pharmaceutical corporations to bring suit against South African legislation that authorized the compulsory licensing of life–saving drugs, claiming that it was a violation of South Africa’s TRIPS–based obligations. The case was dropped in 2001 after the court allowed nongovernmental organizations to present affidavits. Pharm. Mfrs. Ass’n of S. Afr. v. South Africa, No. 4138/98 (High Ct., withdrawn Apr. 17, 2001). On this litigation, see David, Barnard, In the High Court of South Africa, Case No. 4138/98: The Global Politics of Access to Low–Cost AIDS Drugs in Poor Countries , 12 Kennedy Inst. Ethics J. 159 (2002)Google Scholar.

133 House of Lords judgment in the Pinochet case, supra note 30.

134 In this respect, the U.S. courts again stand out: inasmuch as they are not particularly anxious to protect their domestic processes from external influence, see text at notes 3 and 25, they are the least perturbed by the potential adverse consequences of rendering judgments against foreign violators of international law. Sosa v. Alvarez–Machain, 542 U.S. 692 (2004).

135 Compare the Pinochet decision, supra note 30 (no immunity for former heads of state against prosecution for acts of torture), with the Lords judgment in Jones, supra note 31 (immunity against prosecution for acts of torture for incumbent officials of a foreign state, Saudi Arabia), and the Qaddafica.se., as analyzed in Salvatore, Zappala, Do Heads of State in Office Enjoy Immunity from Jurisdiction for International Crimes? The Ghaddafi Case Before the French Cour de Cassation , 12 Eur. J. Int’l L. 595 (2002)Google Scholar (the French court relied on customary law to suggest vaguely that Qaddafi enjoyed immunity, but without explaining which type of immunity and whether it would expire when he is no longer in power).

136 The Greek Supreme Court rendered a default judgment against Germany for war crimes during World War II, awarding damages. Prefecture of Voiotia v. Fed. Republic of Germany, Areios Pagos [Supreme Court], 11/2000; see Maria Gavouneli & Ilias Bantekas, Case Report: Prefecture of Voiotia v. Federal Republic of Germany, in 95 AJIL198 (2001). The German Supreme Court, however, refused to recognize the Greek judgment. Bundesgerichtshof [BGH] [Supreme Court], June 26, 2003, III ZR 245/98 (Distomo Massacre case), translated in 42 ILM 1030 (2003). The Italian Court of Cassation reached a conclusion similar to that reached by the Greek court in a suit brought by Italian citizens against Germany. Ferrini v. Fed. Republic of Germany, cass., sez. un., Mar. 11, 2004, 87 Rivistadi diritto internazionale 539 (2004)Google Scholar; see Andrea, Bianchi, Case Report: Ferrini v. Federal Republic of Germany, in 99 AJIL 242 (2005)Google Scholar. But in a parallel decision, the same court refused to consider a suit brought by Serbian citizens against Italy for war crimes during the 1999 NATO Kosovo campaign. President of Council of the Minister v. Markovic, cass., sez. un., June 5, 2002, No. 8157, translated in 128 ILR 652; see also Markovic v. Italy, App. No. 1398/03 (Eur. Ct. H.R. Dec. 14, 2006) (Grand Chamber), available at <http://www.echr.coe.int>.

137 See supra notes 4–11 and corresponding text.

138 On this delegation, see supra text at notes 17–24.

139 The possibility of judicial review by national courts of Security Council resolutions under Chapter VII is discussed in Erika de, Wet & André, Nollkaemper, Review of Security Council Decisions by National Courts , 45 Ger. Y.B. Int’l L. 166 (2002)Google Scholar. The authors review three decisions of three different courts—the Dutch District Court, Milosevic v. The Netherlands, translated in 48 Neth. Int’l L. Rev. 357 (2001)Google Scholar; The Swiss Federal Supreme Court, Rukundo v. Fed. Office of Justice , App. Nos. 1A.129/2001, 1A.130/2001/viz (Sept. 3, 2001)Google Scholar, available at <http://www.bger.ch/index/juridiction/jurisdiction–inherit–template/jurisdiction–recht/jurisdiction–recht–urteile2000.htm>; and the U.S. Court of Appeals for the Fifth Circuit, Ntakirutimana v. Reno, 184 F.3d 419 (5th Cir. 1999). These decisions demonstrate the variation in views regarding the authority to review such acts, but none of the courts was particularly willing to question the legality of those acts: the U.S. court found the issue to be beyond the scope of habeas review, while the Dutch and Swiss courts showed significant deference to Security Council resolutions. Similar deference was given by the British Court of Appeal in Regina (Al–Jedda) v. Secy of State for Defence, [2006] EWCA Civ 327, [2007] Q.B. 621, para. 71, as well as by the Swiss Supreme Court in Nada v. SECO, Nov. 14, 2007, 133 Entscheidungen des Schweizerischen Bundesgerichts II 450. But see the House of Lords decision in Jedda, infra note 145.

140 See Council Directive 2004/83/EC of 29 April 2004 on Minimum Standards for the Qualification and Status of Third Country Nationals or Stateless Persons as Refugees or as Persons Who Otherwise Need International Protection and the Content of the Protection Granted, 2004 O.J. (L 304) 12; Council Directive 2001/55/EC of 20 July 2001 on Minimum Standards for Giving Temporary Protection in the Event of a Mass Influx of Displaced Persons and on Measures Promoting a Balance of Efforts Between Member States in Receiving Such Persons and Bearing the Consequences Thereof, 2001 O.J. (L 212) 12, both available at <http://eur–lex.europa.eu>; Reynolds, S., European Council Directive 2001/55/EC: Towarda Common European Asylum System , 8 Colum. J. Eur. L. 359 (2002)Google Scholar. For an earlier similar move, see James, C. Hathaway, Harmonizing for Whom? The Devaluation of Refugee Protection in the Era of European Economic Integration , 26 Cornell Int’l L.J. 719 (1993)Google Scholar.

141 See Eyal, Benvenisti & George, W. Downs, The Empire’s New Clothes: Political Economy and the Fragmentation of International law , 60 Stan. L. Rev. 595 (2007)Google Scholar.

142 Robert, B. Ahdieh, Between Dialogue and Decree: International Review of National Courts , 79 N.Y.U. L. Rev. 2029 (2004)Google Scholar (discussing incidents where international tribunals examined the compatibility of national court decisions with the international obligations of their countries).

143 See Tom, Ginsburg, Bounded Discretion in International Judicial Lawmaking , 45 Va. J. Int’l L. 631, 656–68 (2005)Google Scholar (describing the various strategic limits on judicial discretion of international tribunals).

144 This practice is inherent in the process of fragmenting international law. See Benvenisti & Downs, supra note 141, at 614–19. On exiting treaties, an option unavailable in domestic law, see Ginsburg, supra note 143, at 658; Laurence, R. Heifer, Exiting Treaties , 91 Va. L. Rev. 1579 (2005)Google Scholar.

145 The European Court of Human Rights has been criticized for its timidity in reviewing governmental policies in situations of national emergencies. See Oren, Gross & Fionnuala, NÍaoiÁin, Law in Times of Crisis: Emergency Powers in Theory and Practice 268–89 (2006)Google Scholar. They find that “states can rest assured, to some degree, that their overall sovereign rights to resort to exceptional measures in times of crisis are not affected, nor will their political reactions and measurements be undercut.” Id. at 289. The result is an ineffective review mechanism that endows governmental action with legitimacy. Id. at 324; see also Ralph, Wilde, Legal “Black Hole”? Extraterritorial State Action and International Treaty Law on Civil and Political Rights , 26 Mich.J.Int’l 1.739, 783 (2005)Google Scholar. recently, the house of lords indicated its readiness to review compliance of britain with its human rights obligations even when it operates under un security council resolutions. regina (on the application of al–jedda) (fc) v. sec’y of state for defence, [2007] ukhl 58 (appeal taken from eng.).

146 Christian, Joppke & Elia, Marzal, Courts, the New Constitutionalism and Immigrant Rights: The Case of the French Conseil Constitutionnel , 43 Eur. J. Pol. Res. 823, 837 (2004)Google Scholar, suggest that national courts, rather than the European Court of Human Rights, have been the ones to promote migrant rights.

147 Slaughter, supra note 9.

148 Arrest Warrant of 11 April 2000 (Dem. Rep. Congo v. Belg.), 2002 ICJ Rep. 3 (Feb. 14); Al–Adsani v. United Kingdom, 2001–XI Eur. Ct. H.R. 79.

149 Jones, supra note 31, para. 24 (Bingham, L.J.); see also id., paras. 48–49 (Hoffmann, L.J.).

150 See supra note 27 and corresponding text.

151 These terms are aptly used in Barry, Friedman, The Birth of an Academic Obsession: The History of the Countermajoritarian Difficulty, Part Five , 112 Yale L.J. 153 (2002)Google Scholar.

152 See supra note 1. For an outline of the debate concerning the legitimacy of comparative constitutionalism, see Christopher, McCrudden, Transnational Judicial Conversations on Constitutional Rights , 20 Oxford J. Leg. Stud. 499, 528–29 (2000)Google Scholar.

153 On global governance and democracy, see Joshua, Cohen & Charles, F. Sabel, Global Democracy:’37 N.Y.U. J. Int’l L. & Pol. 763 (2006)Google Scholar; Ruth, W. Grant & Robert, O. Keohane, Accountability and Abuses of Power in World Politics , 99 Am. Pol. Sci. Rev. 1 (2005)Google Scholar; Kingsbury, Krisch, & Stewart , supra note 17Google Scholar; Weiler, supra note 17; John, Ferejohn, Accountability in a Global Context (IILJ Working Paper 2007/5, 2007)Google Scholar, available at <http://www.iilj.org>.