International Law and National Courts: Between Mutual Empowerment and Mutual Weakening

Authors

• Osnat Grady Schwartz, University of California Berkeley

Abstract

Over the past two decades, national courts have increasingly engaged with international law in fields and cases they used to avoid before. This Article argues that national courts' voluntary/discretionary application of international law and their greater openness to it are incentivized by the power offered to courts by international law. It empowers them directly - through making them direct subjects of it, advancing the rule of law, and offering institutional backup in the form of international courts and tribunals - and indirectly - by offering them a normative tool kit to be used in their decisions and amplify their legitimacy. Simultaneously, national courts' application of international law empowers the latter, generating a cycle of mutual empowerment between the two. With that, this cycle may reverse into mutual weakening if the application of international law actually and seriously challenges the state's institutional rules and procedures, national interests, or the public and public values.

Disciplines

Courts | International Law | Judges | Law

Recommended Citation

Osnat G. Schwartz, International Law and National Courts: Between Mutual Empowerment and Mutual Weakening, 23 Cardozo J. Int'l & Comp. L. 587 (2015).
Available at: https://larc.cardozo.yu.edu/cjicl/vol23/iss3/5