Judicial Misgivings Regarding the Application of International Law: An Analysis of Attitudes of National Courts

TLDR: In this article, a comparative analysis of national courts with respect to the application of international law is presented, showing that the existence of a similar pattern of behaviour in most jurisdictions, and the reasons that prompt most national courts to adopt an apprehensive approach towards international norms and the circumstances in which such an approach could be revised.

Abstract: Justice Powell remarked twenty years ago that '[u]ntil international tribunals command a wider constituency, the courts of the various countries afford the best means for the development of a respected body of international law.' Few would challenge this statement which underlines the promise of world-wide development and enforcement of international law by national courts. But can national courts really live up to this challenge? Apparently, there are weighty factors that inhibit national courts from the rigorous application and enforcement of international law. This is particularly the case when the application of international norms is sought in an attempt to constrain the activities of the national court's executive. The somewhat idyllic statement of Justice Powell is the starting point for this article. Sharing his aspiration, this article endeavours to explore its limitations. Only by understanding the factors that hinder national courts from becoming the enforcement agencies of international law will it be possible to assess the real potential of national courts in the international arena and the means to realize i t The first part of the article is an inquiry into die practice of national courts with respect to the application of international law. This comparative analysis demonstrates the existence of 'a similar pattern of behaviour in most jurisdictions. It provides the background for assessing the reasons that prompt most national courts to adopt an apprehensive approach towards international norms, and die circumstances in which such an approach could be revised. In light of this general study, the second part of die article examines more closely the jurisprudence of die Israeli Supreme Court in this context The claim I shall make in the second part is that die continuation of die