Separating Powers: International Law before National Courts
The more international law, taken as a global answer to global problems, intrudes into domestic legal systems, the more it takes on the role and function of domestic law. This raises a separation of powers question regarding law-making powers. In this boo
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David Haljan
Separating Powers: International Law Before National Courts
123
David Haljan Institute for Constitutional Law University of Leuven Leuven Belgium
ISBN 978-90-6704-857-6 DOI 10.1007/978-90-6704-858-3
ISBN 978-90-6704-858-3
(eBook)
Library of Congress Control Number: 2012937467 T.M.C. ASSER
PRESS,
The Hague, The Netherlands, and the author 2013
Published by T.M.C. ASSER PRESS, The Hague, The Netherlands www.asserpress.nl Produced and distributed for T.M.C. ASSER PRESS by Springer-Verlag Berlin Heidelberg No part of this work may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, microfilming, recording or otherwise, without written permission from the Publisher, with the exception of any material supplied specifically for the purpose of being entered and executed on a computer system, for exclusive use by the purchaser of the work. The use of general descriptive names, registered names, trademarks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. Printed on acid-free paper Springer is part of Springer Science+Business Media (www.springer.com)
Preface
As any good constitutional lawyer will know, and be more than happy to expound on at length, the interaction between international law and national law is complex and difficult. It is easy enough at an academic level, or before the courts, to invoke international norms in national, domestic legal matters with little more than a general or passing regard for their constitutional status. The focus falls naturally upon their content, adding weight and advantage to press home a desired legal result, and upon the impression of global, trans-jurisdictional comity on at least that legal rule. But status and legal stature prove a somewhat more pressing immediate issue when the time comes actually and concretely to apply them. Countering the pressures of an internationalised world are the equal pressures of maintaining domestic legitimacy and constitutional loyalty. Although the event horizon for the courts may stretch to international distances, the practicable and effective scope of sight would seem to remain limited to national boundaries, if only because the courts are products of and representatives of such a nationaloriented constitutional footing. That constitutional tension serves as the impetus for this book. The central question is to what extent judges respect and enforce the national doctrine of the separation of powers in recognising and enforcing norms of international law. In a more compact form perhaps, the issue is what limits the separation of powers sets on the possibilities of national courts in various countries to interpret and apply norms of public international law. This is framed against the background of the ‘‘globalisation’’ of law. The question is thus to be read within a broader perspective of whethe
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