National Courts, Domestic Democracy, and the Evolution of International Law: A Reply to Eyal Benevenisti and George Downs
The heightened activities of international organizations and national governments have pertained both to traditional areas, as well as those, such as environmental law, which had hitherto been almost exclusively within the domain of domestic politics and law. Such developments have worried those who believe that decisions taken at the international level are insufficiently reflective of and constrained by democratic politics and basic principles of due process, and unfairly give preferences to powerful states over less powerful ones.
As a consequence, there has been a renewed effort – particularly within the past five years – to think about ways to limit powerful states, make international organizations more accountable, and increase popular influence in the international system. One approach has been to stress the rule of law, legalization, compliance, and formality. A second method – which often goes under the rubric of ‘global administrative law’ – provides solutions through the articulation and application of accountability and responsibility mechanisms and rules, such as more transparency in the work of international organizations, increased public deliberation in their organs, and greater participation of non-governmental organizations and other non-state actors in their activities. And yet a third technique promotes greater popular participation in foreign affairs through the activities of national institutions, including legislatures and courts. Eyal Benvenisti and George W. Downs have been the strongest proponents of this last tactic, and it is the subject of their article entitled "National Courts, Domestic Democracy, and the Evolution of International Law."
Benvenisti and Downs argue that national courts have rightly begun to defer less to their executive branches and increasingly to check executive authority in international affairs. By requiring governments to receive legislative sanction for their international actions or by countermanding those acts as breaches of national or international law, courts can "safeguard domestic democratic processes." National courts, in this way, are democracy-reinforcing institutions, ensuring the accountability of executive branch officials who are no longer properly limited by domestic popular political pressures but, rather, have been captured by discrete interest groups. Not only will national courts constrain executives through adjudicative processes, thereby increasing the opportunity for popular influence on foreign affairs, the coordination of activities and cooperation among national courts and between national courts and international courts will tend towards the harmonization of an increasingly fragmented international legal regime. Domestic courts will, by contributing to the establishment of a coherent international law, also control international organizations which, like national executive branches, lack sufficient monitoring. As with increased supervision of executive branches, greater judicial review will lead to the increased legitimacy of international institutions and their decisions.
National courts can therefore be an important solution to four interrelated problems of our era: the unchecked executive in foreign affairs; the unaccountable international institution; the democratic deficit in international relations; and the fragmentation of international law. Ironically, the parochial interests of national courts will serve to stabilize and democratize the international order.
Jacob Katz Cogan, National Courts, Domestic Democracy, and the Evolution of International Law: A Reply to Eyal Benevenisti and George Downs, 20 Eur. J. Int'l L. 1013 (2009)