Neither Dr Jekyll, nor Mr Hyde, Just a National Judge…: National Courts’ Strategies of Resistance to International Law

Abstract

The development and expansion of international law have also led to greater demands on national courts to interpret and apply international law. However, while this increased demand has confirmed the role of the domestic court as an organ of international law, it has also led to a tension between its tasks as guardian of the rule of law at the domestic level and as guarantor of compliance with the international rule of law. The Kadi case of the European Court of Justice (ECJ), the Solange case of the German Constitutional Court and the Mara’abe case of the Israeli High Court of Justice (HCJ) are some of the symbols of this tension and illustrate the techniques and strategies developed by the domestic courts to apply international law while preserving the domestic legal order. This paper analyses the application of international law by domestic courts and tries to identify the techniques and strategies used by them to oppose, circumvent, undermine or resist international law, sometimes arguing that it is necessary to develop it. In so doing, the paper highlights the difficulties of role splitting (dédoublement fonctionnel) as conceived by Georges Scelle: even in its application of international law, the domestic judge never ceases to be the agent of a domestic legal order whose interests he or she has at heart.