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A Dialogue Model: The Role of the Domestic Judge in Security Council Decision-Making

Published online by Cambridge University Press:  31 July 2013

DEVIKA HOVELL
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Abstract

This article proposes a different theoretical account of the role of domestic courts when engaged in judicial review of decision-making by international institutions. Many domestic courts in democratic societies operate in accordance with a ‘public-law model’ when adjudicating questions related to international decision-making, underwritten by respect for doctrines such as the rule of law and separation of powers. Drawing on a case study of domestic-court decisions in the Security Council sanctions context, this article seeks to demonstrate how the public law model's focus on concepts of ‘bindingness’ and hierarchy between judicial and political organs can lead to distorted outcomes when applied to decision-making by international institutions. As an alternative, the author proposes a different theoretical account of the judicial role, described as the ‘dialogue model’, of courts when engaging in the review of Security Council decision-making. The idea is that domestic courts should confine themselves to tools of ‘interpretation’ and ‘declaration’ in their approach to international decision-making, so as to position their judgments in a more theoretically supportable way in the broader legal context.

Keywords

Security Councilsanctionsdomestic courtsdue processdialogue

Information

Type
INTERNATIONAL LAW AND PRACTICE: Symposium on Domestic Courts as Agents of Development of International Law
Information
Leiden Journal of International Law , Volume 26 , Issue 3 , September 2013 , pp. 579 - 597
Copyright
Copyright © Foundation of the Leiden Journal of International Law 2013 

1. Introduction

In the 1970s, Abram Chayes published an article in the Harvard Law Review on the ‘Role of the Judge in Public Law Litigation’.Footnote 1 In contrast to the traditional private law ‘dispute settlement’ conception of adjudication, Chayes chronicled an ‘emerging model of public law litigation’.Footnote 2 Under this public law model, the primary function of domestic courts was not the resolution of disputes between private parties, but rather an ‘expository’ function of interpreting and applying domestic regulation in accordance with the fundamental values of domestic society.Footnote 3 In this article, I argue that, in recent decades, there has been a further ‘paradigm shift’ in the judicial function. While the public law model is now well established, the scope of judicial review under the public law model is increasingly expanding to include an international dimension. A growing number of cases involve domestic courts in the review (whether direct or indirect) of decision-making by international institutions. While the ‘public law model’ recognized that domestic courts have a legitimate and distinctive role in the implementation of domestic regulation, domestic courts are increasingly involved in decisions about the application of global regulation to individuals. The question is whether this shift justifies a further reconceptualization of the judicial function of domestic courts.

Of course, the task in chronicling these ‘paradigm shifts’ in the judicial function is not a purely descriptive one. Identification of the appropriate judicial function of domestic courts is related to the legitimacy of judicial action, and influences the scope of the powers and limitations recognized by domestic judges.Footnote 4 If judges operate in accordance with the ‘public law model’ of adjudication when engaged in the review of international decision-making, the risk is that domestic courts will misconceive the scope of their legitimate role, with implications for the coherence and effectiveness of the broader system within which they operate. Nowhere is this more evident than in recent cases in which domestic (and regional) courts have engaged in review of Security Council decision-making.Footnote 5 As one domestic judge himself described it, domestic courts have been invited in an increasing number of cases to operate ‘deep inside the realm of international law – indeed inside the very chamber of the United Nations Security Council itself’.Footnote 6 It is not the domestic judge's natural habitat, and the discomfort is shared by domestic judges and international decision-makers alike. On the one hand, domestic courts have forged a valuable role, and proved to be one of the most effective sources of rights protection for individuals impacted directly by Security Council decisions. A key example is the Kadi litigation, the first phase of which culminated in a decision by the European Court of Justice to invalidate the EC regulation giving effect to the relevant Security Council resolution on the ground that it violated fundamental human rights principles of the European Community legal order.Footnote 7 On the other hand, reliance on a public law model of the judicial function has served to distort and fragment applicable international law, and threaten the power and effectiveness of a global institution as significant as the Security Council. The decision of the European Court of Justice in Kadi I, while hailed as a triumph for human rights, opened up a dangerous hole in the counterterrorist sanctions net developed by the Security Council.

In sections 2, 3 and 4 of this article, I discuss the limitations of the public law model in the Security Council sanctions context. The issue stems from the foundations of the public-law model in concepts such as the rule of law and separation of powers, which encourages dependence by domestic courts on two central underlying tenets that prove problematic in the Security Council context: a criterion of bindingness, reducing a court's toolkit to existing binding law, and the use of supremacy as a means to determine whether judicial or political organs are authoritative in a particular context. This reduces pivotal questions of law and authority to binary choices: law enforcement or law creation, binding or non-binding principles, judicial or political supremacy, international or domestic law. Transferred to the Security Council setting, where the parameters of law and authority remain in question, such clear-line dichotomies are difficult to draw. Problems with the public law model in the Security Council context are explored through a detailed case study of domestic-court intervention surrounding the issue of due process protections in the Security Council sanctions regime. In this context, reliance on the criterion of bindingness has led domestic courts to treat the question of due process in sanctions decision-making as a quest for existing binding principles of law, distorting the development of a procedural framework adapted to the Security Council setting. In particular, domestic-court judgments have tended to (i) ignore the contextual nature of procedural fairness, (ii) demand the imposition of an inappropriate ‘adjudicatory’ framework in the sanctions setting, and (iii) determine the applicability of due-process principles based on an inapplicable civil/criminal dichotomy. Reliance on notions of supremacy have led domestic courts to take an ‘all-or-nothing’ approach to their capacity to review Security Council decision-making, under which courts have either denied the power to review the Council's exercise of discretion, or assumed an inflated role effectively subsuming the Council's primary responsibility for the protection of international peace and security. Both approaches have proved normatively and practically problematic.

The object of section 5 of this article is to propose a different theoretical account of the role of domestic courts in Security Council decision-making. The aim is to locate a middle ground between the dichotomies created by the public law model of the judicial function. I define this middle position as the ‘dialogue model’. This proposal draws on a theoretical model that is gaining increasing support as a framework for decision-making by domestic courts about human rights.Footnote 8 The dialogue model seeks to recalibrate the lopsided choices provided by the public law model of the judicial function, and introduce greater equilibrium into the relationship between domestic courts and the Security Council. In broad terms, the proposed reconceptualization of the judicial function recognizes enhanced power in domestic courts, in the sense that courts are not merely enforcers, but also play a recognized role as sources of law, and also qualified authority, in the sense that domestic courts are a persuasive but not determinative authority on the legal position. Specifically, I argue that domestic courts can seek either to interpret Security Council resolutions consistently with fundamental human rights principles, or to declare such resolutions inconsistent with human rights principles, though both ‘interpretive’ and ‘declaratory’ contributions are subject to response and indeed repudiation by the Security Council. The aim in proposing this different theoretical account is to encourage the development of a legal culture in which both Council and courts come to see themselves in a collaborative dialectic or ‘dialogue’ aimed at achieving symbiosis between international security and individual rights.

2. Limitations of the public law model in the Security Council setting: the dual impediments of bindingness and supremacy

In advocating a reconceptualization of the relationship between domestic courts and the Security Council, it is important to start with an understanding of the ‘public law model’ of the judicial function, as traditionally conceived. Of course, any attempt to synthesize the judicial practice of the world's diverse legal traditions would need to occur at such a high level of abstraction as to be virtually meaningless. The following discussion is more narrowly focused, and stems from an analysis of the approach to judicial review by the more limited pool of courts that have engaged in review of Security Council decision-making to date. Most of the relevant jurisprudence derives from the legal systems of democratic countries, whose courts tend to share a number of central doctrines.

Domestic courts were originally conceived as an adjunct to a society in which the predominant social and economic arrangements were private, and where the primary function of courts was the resolution of disputes about the fair implications of individual interactions.Footnote 9 With the growth in governmental regulation in the nineteenth and early twentieth centuries, domestic courts were called on increasingly to vindicate constitutional or statutory policies, and a new model of judicial action and the judicial role emerged, described by Abram Chayes as the ‘public law model’. In contrast to the traditional bipolar form of litigation recognized under the dispute resolution model, the scope of those potentially affected by adjudication under the public law model was far broader. The distinctive features of public law adjudication led to an overriding concern with interest representation,Footnote 10 and a pervading focus on how to reconcile adjudication under the public law model with the majoritarian premises of democratic legal systems.Footnote 11 The legitimating aspects of the public law model, including structures for standing and justiciability, were developed based on a quest to accommodate the reality of judicial power with the theory of representative government.

Two broad doctrines have become central to confining the judiciary to its proper role under the public law model: the rule of law and the separation of powers.Footnote 12 Under the rule of law, according to Dicey's classical exposition, all governmental organs are subject to the ordinary law, and must not act outside it.Footnote 13 The power of judicial review of governmental decision-making is accordingly concerned largely with checking that governmental decision-makers do not act outside the law. Yet, in exercising this power of review, the role of courts is conventionally circumscribed by recognition of a separation between ‘judicial’ and ‘elective’ power, which translates into a separation between the power of ‘law enforcement’ vested in courts and the power of ‘law creation’, generally vested in the democratic legislature.Footnote 14 In simplified terms, the traditional public law model of the judicial function casts courts not as creators of new law, but as ‘transmission belts’ for the existing law, with their main task being to ensure governmental decision-makers stay within the boundaries set by the democratic branches of government.Footnote 15 Even in the more ‘creative’ realm of the development of the common law, it is recognized that judges must develop the law within the established normative system, ensuring historical continuity with existing legal principles, and that this body of law can be overruled by legislative enactment.Footnote 16

While this basic conception of the judicial function is evidently open to far more nuanced interpretation and indeed to critique,Footnote 17 it serves as the clearest depiction through which to highlight the two central features of the judicial function that create particular problems when applied to the review of international decision-making. These are (i) the notion of bindingness (restricting courts to the application of existing binding law), and (ii) the use of supremacy (as a description of the relationship between judicial and political organs). In the following two sections, I undertake a detailed case study of the impact of domestic court intervention in the Security Council sanctions context as a means of demonstrating in a more concrete fashion how conceptions of bindingness and supremacy play out when applied to the review of Security Council measures, and the problems they create.

3. The limitations of ‘bindingness’ in the Security Council sanctions context

Under the public law model, domestic courts are heavily reliant on a criterion of bindingness, which recognizes that a court's toolkit for the resolution of disputes is typically limited to existing binding law. As discussed, this is as a consequence of both the rule of the law and the separation of powers typically built into democratic legal systems, where law creation is recognized as the province of the representative political organs while courts are restricted to the enforcement of this law.

Applied to the Security Council sanctions setting, the criterion of ‘bindingness’ has proven an overly limiting concept for the determination of applicable principles. As is well known, the UN sanctions regime has been the subject of a raft of challenges in domestic courts, stemming predominantly from the perceived failure on the part of the Council to provide adequate procedural safeguards for individuals placed on sanctions blacklists. Faced with these challenges, domestic courts have responded with increasing fortitude, leading to a number of judgments in which courts have invalidated measures implementing Security Council sanctions on the basis of failure to accord to individuals a number of defined procedural safeguards. The problem is that these safeguards have been drawn by domestic courts from existing ‘binding’ principles of due process. Courts have tended to take one of two approaches in developing these principles: (i) a top-down approach, in which due-process principles have been drawn from international human rights law and applied directly to the Council,Footnote 18 or (ii) a bottom-up approach, in which principles have been drawn from domestic or regional law and applied against the domestic legislative mechanism implementing the relevant Security Council decisions. In the latter case, this has included due-process standards derived from domestic and regional legal sources, including the European Convention on Human Rights,Footnote 19 the Canadian Charter of Human Rights and Freedoms,Footnote 20 and UK common law.Footnote 21 Yet the application of existing principles to the Security Council setting has created problems in terms of their normative suitability and practical effectiveness. As the corpus of law binding the Council is uncertain and, at best, can be said to be in a process of development, domestic courts have drawn on legal principles developed to apply to domestic settings. In terms of the establishment of a procedural framework for the Security Council setting, this has had three negative implications: (i) it ignores the fact that procedural fairness is contextual, (ii) the distinctly domestic ‘adjudicatory’ model of procedural fairness is an awkward fit in the Security Council setting, and (iii) it has increased pressure to incorporate ill-fitting domestic classifications into Security Council sanctions decision-making. These issues shall be elaborated upon in turn.

3.1. The contextual nature of procedural fairness

As any public lawyer will readily identify, procedural fairness is not a universal concept intended to be transplanted between legal contexts, but is contextual. While procedural fairness or due-process rights are accepted by all common-law systems, and are recognized by many others,Footnote 22 this should not lead us into the error of thinking either that this makes the principles ‘universal’ or that they take the same shape or have the same scope in every legal system.Footnote 23 In the domestic literature on procedural fairness and due process, it is well established that different legal contexts legitimately require different procedural standards and operate according to different principles and values.Footnote 24 One of the foremost comparative volumes on due process notes that ‘there is no general blueprint to follow and the variety of approaches found in statutes is considerable’.Footnote 25 A procedural framework needs to be developed with careful reference to the conceptual nature of procedural fairness, and the role it can play in the Security Council context, having regard to institutional limitations including broad discretion, widely delegated powers, the emergency context, and a historic aversion to judicial review.

3.2. The inappropriateness of an adjudicatory framework

As things stand, domestic courts have demonstrated a tendency to apply a distinctly ‘domestic’ model of due process to the Security Council setting. This can be characterized as an ‘adjudicatory’ or court-based framework; that is, a system structured around a logically coherent and complete system of rules, where decisions are reached through the presentation of proofs in trial-type hearings and are subject to judicial review.Footnote 26 An aspect of almost all domestic case law responding to the Security Council sanctions regime has been an insistence on the inclusion of a judicial mechanism in the sanctions decision-making process, described variously in terms of the ‘right to judicial protection’,Footnote 27 ‘right of access to a court’,Footnote 28 ‘right to judicial review’,Footnote 29 or ‘right to an effective remedy before an impartial tribunal’.Footnote 30

The adjudicatory framework that is the hallmark of most domestic legal systems is potentially ill-suited to the Security Council setting. Such a framework was developed as a mechanism to deal with disputes that arise out of the distribution and power and the patterns of motivation typically found in domestic legal systems. Thomas Scanlon has recognized that this form of ‘due process’ is not readily exportable to regimes outside the domestic context on the ground that it depends on a minimal commitment to certain institutional tenets. These include, for example, the importance of belief in ‘the possibility of an independent judiciary’ and ‘the need to defend a charge publicly and with reference to a known law’.Footnote 31 These tenets do not form part of the Security Council framework, and their introduction would require a fairly radical change of mindset on the part of the permanent members of the Security Council.Footnote 32

The adjudicatory model, revolving around the necessity of judicial review, is not the only model of procedural fairness. Michael Bayles recognizes that ‘[t]he process benefits of adversary adjudication are often overestimated’ and there are ‘a number of more appropriate alternative decision-making models, particularly in the context of decisions to impose burdens on individuals’.Footnote 33 The ‘bindingness’ model has contributed to reliance by domestic courts on existing models of due process developed for domestic settings, rather than spurring courts to craft a due-process framework suitable for the Security Council sanctions setting. If domestic courts felt less shackled by the need to apply existing binding principles, and paid greater regard to the distinctive needs of the Security Council sanctions context, domestic-court judgments would operate less obstructively and more facilitatively in contributing to the development of a contextually appropriate model of due process in the Security Council setting.

3.3. Inapplicability of the civil/criminal dichotomy

A further consequence of the reliance by domestic courts on due-process standards developed for domestic settings is that it has led to a need to shoehorn the Security Council sanctions context into ill-fitting domestic classifications. One example is the long-running debate as to whether sanctions should be classified as civil or criminal in nature. This debate stems from the fact that most due-process guarantees in human rights instruments incorporate a procedural divide between civil and criminal cases in recognition of the civil/criminal dichotomy that is a hallmark of almost all domestic systems. For example, Article 6 of the European Convention on Human Rights distinguishes between civil and criminal trials, and identifies at least ten procedural rights applicable to those charged with criminal offences, though not to civil cases.Footnote 34

Of course, the civil/criminal dichotomy is not an aspect of the Security Council sanctions regime. Nevertheless, many courts (and indeed many academics) have engaged in consideration of whether sanctions are best classified as civil or criminal in nature. The Court of First Instance of the European Communities rejected the classification of sanctions as criminal measures. Using the example of assets freezes, the Court held that

the freezing of the applicant's funds is not a criminal conviction for the purposes of that case-law, since there has not been any classification as a criminal offence, since the measure in question concerns only a specific group of persons and since the severity of the measure is not sufficient for such purpose.Footnote 35

Similarly, the UN Human Rights Committee in Sayadi determined that, although the sanctions regime has serious consequences for the individuals concerned, it does not concern a ‘criminal charge’ in the meaning of Article 14(1), and therefore discloses no violation of the relevant due-process rights.Footnote 36 This exposes the danger that procedural fairness might be deemed inappropriate or unnecessary in the sanctions context because sanctions cannot be construed as ‘criminal’ in nature. Instead of attempting to derive procedural protections by reference to ill-fitting domestic categories, a more appropriate inquiry would be to have regard to the sanctions measures themselves, and develop protections appropriate to the gravity of the potential consequences for the affected individual.

4. The limitations of ‘supremacy’ in the Security Council sanctions context

Another implication of the public law model of the judicial function is that the relationship between legal and political organs tends to be considered in terms of either judicial or political supremacy. Applied to the Security Council sanctions context, this approach has led to something of an all-or-nothing approach to Security Council decision-making under which domestic courts have either abdicated any effective judicial role in the review of Council decision-making under international law, or assumed an illegitimately inflated role and overruled the exercise of Security Council discretion on the basis of domestic law. The effect has been to emphasize the polarization between courts and Council, and between domestic and international legal orders, at a time when it is arguable that we should be moving toward much greater integration.

4.1. The inadequacy of judicial abstention

Much of the earlier case law arising out of the Security Council sanctions regime was underpinned by a clear respect for Security Council supremacy in the sanctions context. Certain domestic courts determined that the combined effect of Articles 25 and 103 of the UN Charter left the Security Council essentially free to take whichever measures it chose in response to threats to international peace and security.Footnote 37 To the same effect, other courts have exhibited extreme deference to the Security Council by narrowly interpreting applicable principles. For example, in Kadi, the Court of First Instance rather controversially held that the right to a fair hearing had attained jus cogens status, yet found it had not been breached despite the fact that individuals had no right to be heard by the Sanctions Committee, the only authority competent to give a decision.Footnote 38 The Court held that ‘[s]uch a restriction of the right to be heard . . . is not . . . to be deemed improper in light of the mandatory prescriptions of the public international order’.Footnote 39 In similar terms, the Court of First Instance held that the right to effective judicial review had not been breached because the Security Council was entitled to immunity from jurisdiction under Articles 25 and 103 of the UN Charter.Footnote 40

A model of judicial abstention that recognizes international institutions as essentially free to do what they like is inappropriate in contemporary international society. The view that international institutions are manifestly a good thing that can do no wrong, whose functions could contribute only to the ‘salvation of mankind’, is the perspective of a bygone era.Footnote 41 It is increasingly recognized that international institutions are capable of all manner of missteps, omissions, and sins, including in some cases human rights violations,Footnote 42 and that there is a need to recognize a broader system of legal principles by which to check their conduct.Footnote 43 In contemporary international society, it is appropriate for domestic courts to assume a degree of authority to recognize greater legal limits on Security Council decision-making.

4.2. The inappropriateness of judicial supremacy

At the other extreme, some courts have assumed supremacy over the Security Council. In the sanctions context, it is a power that has been assumed by courts such as the European Court of Justice in Kadi and the UK Supreme Court in al Ghabra. Both courts ultimately invalidated the regional/domestic mechanism giving effect to the 1267 sanctions regime for inconsistency with principles of Community and UK law respectively. The exercise of such power by regional and domestic courts has been likened to a Marbury v. Madison moment.Footnote 44 From a normative perspective, it is, however, a difficult power to justify.

In historical terms, judicial supremacy was expressly rejected at the San Francisco Conference at which the UN Charter was drafted.Footnote 45 Instead, the drafters of the Charter placed the Security Council at the apex of decision-making about international peace and security and vested it with ‘primary responsibility for the maintenance of international peace and security’.Footnote 46 Even today, significant controversy attaches to the question whether the International Court of Justice have the power to review Security Council decision-making.Footnote 47 The ICJ has no power to bind the Security Council through its judgments.Footnote 48

Recognition of judicial supremacy in the Security Council context is also difficult to support on the basis of the limited scope of legal principles applicable to the Security Council. The indeterminate limitations on the Security Council under the Charter and international law, coupled with the ambiguity of many Security Council resolutions, have the capacity to give domestic courts disproportionate power to determine international policy. While in the domestic setting, courts are accustomed to filling gaps left by the legislature, in the Security Council context, these gaps become chasms. Although courts are recognized under Article 38(1) of the Statute of the International Court of Justice as having a role in the development of international law, this role is necessarily recognized as ‘subsidiary’, and not one of ‘supremacy’.Footnote 49 It is not the function of courts to create new aims for international society, or to impose on society new basic directives.Footnote 50 Courts vested with the power of review would inevitably be required to make difficult and largely unguided substantive choices among competing values, and indeed among inevitably controverted political, social, and moral conceptions of appropriate responses to threats to international peace and security. Judicial activism by a domestic court purporting to act as an unrepresentative and largely uninvited ‘guardian’ of the international legal order arguably undermines rather than enhances the legitimacy and effectiveness of Security Council decision-making.

5. The dialogue model: reconceptualizing the relationship between domestic courts and the Security Council

As the focus on bindingness and supremacy reflects, the public law model of the judicial function views the role of domestic courts in terms of binary choices: binding or not non-binding law; law enforcement, not law creation; judicial, not political, supremacy; domestic, not international, law (or vice versa). The problem is that, in the Security Council setting, questions of law and authority resist such clear-line dichotomies. This article proposes a different theoretical approach to the role of domestic courts in Security Council decision-making that seeks to locate a middle ground between the dichotomies generated by the public-law account of the judicial function. I define this middle position as the ‘dialogue model’. The core argument in favour of the dialogue model is that of balance. Rather than working in terms of binary choices, the model aims to reconcile the competing claims to authority by domestic courts and the Security Council.

The motivation for the proposed reconceptualization of the judicial function is that the public law model, encouraging a focus on binding law and questions of hierarchy between principles and institutions, misconstrues the role of domestic courts when they operate as agents of interpretation of international legal instruments. If domestic courts start to see themselves as part of a broader system, incorporating the capacity to review decision-making by international institutions, it is necessary to generate a model of the judicial function appropriate to the broader system within which a domestic court is operating.Footnote 51 This may mean that (where a domestic court engages in decision-making about international legal issues) its legitimating foundations have to be recalibrated for the entirety of the order (domestic and international), not just for one part of it.Footnote 52 In the following section, I suggest that two distinguishing characteristics of the relationship between domestic courts and the international legal system should be taken into account in reconceptualizing the judicial function: first, recognition of the enhanced power of domestic courts in the international context as ‘sources’ rather than merely ‘enforcers’ of international law; and second, recognition of the qualified authority of domestic courts as persuasive but not determinative authorities on the legal position. Taking these features into account, it is possible to develop a conception of the judicial function that positions courts in a more theoretically supportable way within the broader framework of the international legal system. My conclusion is that the judicial function of domestic courts is most appropriately characterized in terms of a persuasive contribution to a broader legal dialogue. More specifically, domestic courts may legitimately act as agents of interpretation of international decision-making (‘interpretive’ role), and/or as agents for the persuasive declaration of the compatibility (or incompatibility) of international decision-making with fundamental values (‘declaratory’ role), subject always to the capacity of the international decision-maker to reinterpret or repudiate the declarations of domestic courts. In the absence of any formal hierarchy between the Security Council and domestic courts, the idea is that courts and Council should regard themselves in an informal partnership. There is no doubt that domestic courts have a legitimate and valuable role to play in international decision-making, possessing both the capacity and expertise to propose means to accommodate rights claims within the international security framework, and to call attention to legal ‘blind spots’ overlooked by the Council, whether on account of inconvenience or inertia.Footnote 53

5.1. Enhanced power: domestic courts as a source of law

The public law model of the judicial function is based in part on recognition of a necessary separation between the judicial power of law enforcement and the political power of law creation. Within democratic legal systems, it is the representative source of the law being applied by courts that lends legitimacy to the judicial role. However, where courts are reviewing the decisions of international decision-makers such as the Security Council, the normative basis for this separation is lost. When domestic courts seek to review decisions made by international institutions, domestic courts are no longer acting as legitimate guardians and enforcers of domestic law. Instead, they are engaging with a body of law that finds its source in the broader international legal system.

In the international legal order, domestic courts are not mere enforcers, but are also recognized as sources of international law. First, decisions of domestic courts are evidence of state practice, relevant to the three primary sources of international law listed in Article 38(1) of the Statute of the International Court of Justice, including interpretation of treaties, the development of international custom and elaboration of general principles of law.Footnote 54 Second, judicial decisions are referred to expressly in Article 38 as a ‘subsidiary means for the determination of rules of law’.Footnote 55 It is accepted that the reference to ‘judicial decisions’ in this context includes decisions of domestic courts.Footnote 56 In practice, it has been noted that domestic court-decisions play an extremely important role in the identification and formation of international law, and are routinely cited as evidence of the meaning of international law.Footnote 57

In such circumstances, a polarization between law enforcement and law creation in elaborating the role of domestic courts is ‘a simplistic and often inaccurate approach’.Footnote 58 Instead, domestic courts must recognize their capacity to contribute to the development of international law. The authority provided to domestic courts in Article 38 is based in recognition of the special legal expertise of judges, and their capacity to develop and fill gaps in the law utilizing powers of legal reasoning.Footnote 59 As Judge Higgins has recognized, international law would never develop beyond its rudimentary state if courts felt that the distinction between lex lata and lex ferenda forever prevented them from applying the law in a progressive manner. Indeed, part of the problem of the traditional ‘bindingness’ approach is that it may have a ‘chill effect’ on the law, freezing or crystallizing international norms at a particular moment in time, and stalling important developments.Footnote 60 Instead, domestic courts should take the opportunity to exercise a more creative function, using legal reasoning to build on existing legal principles, and crafting applicable legal principles for new contexts. When operating in relation to the international legal sphere, the judicial function must include ‘developing and applying international law to hitherto untested situations in order to obtain socially desirable and enlightened results’.Footnote 61

5.2. Scope of authority: the persuasive power of domestic courts

Though domestic courts have a role in law creation when acting in relation to the international legal order, it is important to recognize that this role is a qualified one. Domestic courts are not empowered to make a final or authoritative determination of the applicable law.Footnote 62 Rather, under Article 38(1)(d) of the Statute of the ICJ, their role in the determination of law is ‘subsidiary’. They provide mere evidence of the primary sources of international law.Footnote 63 Ultimately ‘[t]he authoritativeness of [their decisions] will . . . be founded upon the constitutional function, perceived role and reputation of the Court’.Footnote 64 If international actors accept the relevant court's decision, its law-making impact will be substantial. If not, the decision ‘may become marginalized, seen as exceptional and have limited law-making effect’.Footnote 65 The picture is therefore one of gradated authority, leaving behind the binary scheme of binding/not binding and political/judicial supremacy, and instead associating norms with levels of persuasiveness tied to broader conceptions of an institution's legal reasoning and reputation.Footnote 66

5.3. Judicial function under a dialogue model: domestic courts as agents of interpretation and persuasive declaration

The challenge, then, is to recalibrate the judicial function to take account of the enhanced power of domestic courts as a source of international law, while recognizing the qualified authority of domestic courts in the international legal order. My conclusion is that a ‘dialogue model’ of the judicial function positions courts in the most theoretically supportable way in the broader international legal system. This model does not purport to cast domestic courts in an entirely new and foreign role, but instead draws on accepted models for domestic-court engagement with domestic human rights. In the human rights context, domestic legal systems have developed a number of ways to reallocate power between judicial and political organs in a way that brings them into greater balance than under the traditional lopsided models of either constitutional supremacy (where courts are supreme) and parliamentary sovereignty (where Parliament is supreme). While it has taken a number of forms in Canada, the UK, Australia and New Zealand, the ‘dialogue model’ refers to a relationship in which judicial decisions about the compatibility of legislation with human rights are open to reversal by the legislature.Footnote 67

The relevant aspect for the purposes of the present discussion is that the authority of domestic courts is construed not in terms of supremacy, but in terms of a spectrum. Translated to the Security Council sanctions context, domestic courts could be seen as having the choice (i) to invalidate Security Council resolutions, (ii) to interpret resolutions in a way that is consistent with human rights, (iii) to declare resolutions incompatible with human rights, or (iv) to abstain from review. As has been discussed, domestic courts exercising the first option would overstep the permissible and practicable boundaries of their jurisdiction, as they have no power to impact on the validity of Security Council decision-making. By contrast, the final option would open domestic courts to the criticism that they had abdicated their responsibility to uphold the fundamental principles of their domestic legal systems. It is in the two central choices that we find the practically and theoretically supportable options for domestic courts. Each of these options can be seen as promoting dialogue in that they contribute to development of the law, yet are open to reversal by the Security Council should the Council fundamentally disagree with the court's decision.

The technique of interpretation discussed as option (ii) above offers the strongest tool. To the extent a Security Council resolution can be interpreted consistently with fundamental human rights, and it is appropriate to do so (in the sense that such rights are readily translatable to the Security Council context), domestic courts should take this option. Unlike option (i) above in which a domestic court chooses to invalidate a Security Council resolution (or the democratic mechanism implementing it), an interpretation offered by domestic courts is open to express reversal by the Security Council should the Council disagree with the interpretation taken.Footnote 68 Moreover, the interpretive option is stronger than options (iii) or (iv) in that it offers a means of protecting fundamental rights in so far as it is possible to read an intention to respect fundamental rights into relevant resolutions. If the Council does not respond negatively to an interpretation given by a domestic court, there will be a broader entitlement for other states to accept that such an interpretation is consistent with the sanctions regime, and follow suit. The idea is for a legal culture to develop in which Council and courts come to see themselves as involved in a dialectical partnership or dialogue in which they are both working toward an appropriate balance between human rights and international security.Footnote 69

The case of Abdelrazik v. Minister of Foreign Affairs is one example of a domestic court adopting an interpretive role in reconciling Security Council obligations with human rights obligations. It is perhaps unsurprising that this case derives from the Canadian legal system, the legal system in which the ‘dialogue model’ from which this analysis borrows had its domestic genesis and finds its strongest reflection. In Abdelrazik, a Canadian citizen argued that the Canadian government's implementation of the travel ban under Security Council Resolution 1822 violated his right to return to Canada under Section 6 of the Canadian Charter of Rights and Freedoms. While acknowledging that the case raised tensions between international and domestic law,Footnote 70 Justice Zinn of the Federal Court of Canada treated the issue as one of interpretation of the relevant resolution. Relying on the wording of the resolution together with supplementary material, including Security Council guidelines, international treaties, and Canadian legislation, Justice Zinn reasoned that ‘properly interpreted the UN travel ban presents no impediment to Mr A returning home to Canada’.Footnote 71 As Antonios Tzanakopoulos has recognized, this interpretation was not determinative of the position under international law, and was not binding on the UN or any other state.Footnote 72 However, to the extent it was not overruled by the Council, it solved the domestic conflict, and provided a persuasive interpretation of the relevant Security Council resolution that could be relied on by other states.

The Nada case decided in 2012 by the European Court of Human Rights the best example to date of a court acting to harmonize conflicting obligations through interpretation rather than invalidation of Security Council resolutions.Footnote 73 The European Court of Human Rights invoked a general principle of interpretation that diverging international commitments ‘must be . . . harmonised as far as possible so that they produce effects that are fully in accordance with existing law’.Footnote 74 The Court invoked a ‘presumption’ that the Security Council does not intend to impose an obligation on member states to breach fundamental human rights.Footnote 75 The Court thereby avoided language of ‘hierarchy’ or ‘supremacy’ in determining the relationship between Security Council resolutions and human rights, or Council and courts, in favour of recognizing an obligation upon member states to harmonize obligations they regard as divergent. In this way, the ECHR expanded the notion of dialogue discussed in this article to include member states, Council and courts.

The difficulty with the interpretive ‘dialogue’ approach described above comes where it is not possible to interpret Security Council resolutions in a way that is compatible with fundamental domestic rights. Here, the dialogue would need to move beyond a facilitative dialogue interpreting Council resolutions so as to accord with fundamental principles to a dialogue aimed at signalling objection. Ideally, courts would be empowered to make formal declarations of incompatibility as described in option (iii) above in relation to decisions of international institutions such as the Security Council where these violate fundamental domestic principles, as is the case in certain domestic systems.Footnote 76 An alternative, less formal, mechanism than the power to issue declarations of incompatibility would be for domestic courts to make statements in obiter (to use a common-law term), or in a ‘declaratory’ fashion, signalling the incompatibility of sanctions measures with fundamental human rights. While such determinations have no legally-binding effect, the effect of such judicial statements would not merely be academic but would fulfil a legitimate role within the Security Council sanctions framework contributing to the development of applicable international legal principles.Footnote 77 This form of ‘declaratory’ or ‘principle-proposing’ dialogue repositions judges in a broader international forum where their distinctive function is the determination of questions of rights, while recognizing that the development and pursuit of fundamental international principles is a ‘collaborative endeavour’ between courts, Council, and other actors on the international stage.Footnote 78 Once again, the judgment of the Federal Court of Canada in Abdelrazik provides a good example. While Justice Zinn ultimately affirmed the consistency of the relevant Security Council resolution with the Canadian Charter, he levelled criticism at the sanctions regime, ‘[adding] his name to those who view the 1267 Committee regime as a denial of basic legal remedies and as untenable under the principles of international human rights’.Footnote 79 It is notable that, in doing so, he referred to both international and domestic guarantees, declaring the 1267 regime to be in contravention of fundamental principles of ‘Canadian and international justice’.Footnote 80 His focus was quite clearly on the substance of the norms, rather than their foundation in international or domestic law. Justice Zinn's judgment has been enormously influential and a beacon for reform, with much recourse made by other courts, academics, and expert reports to his statements in obiter. This case is an interesting example of the capacity of domestic courts to make valuable contributions to a broader dialogue.

6. Conclusion

The judiciary regularly exhibits a capacity to adapt to society's changing needs.Footnote 81 This capacity for change extends to the judicial function itself, which has been recognized as a function of place and time, influenced by its environment and the constantly changing factual and social reality.Footnote 82 The increasing intervention of domestic courts in decision-making by international institutions should encourage both courts and scholars to question the nature of the role of domestic courts in this setting. Lon Fuller recognized the need for the judicial function to be constantly cognizant of the problem of system, in the sense that judges must always consider the coherence of the system in which they operate, and the powers and limitations of the institution of the judiciary as defined within that system.Footnote 83 In the context of the international legal system, reliance on the traditional public-law model of the judicial function based on bindingness and supremacy leads to a polarization between law creation and law enforcement, binding and non-binding law, judicial and political supremacy, and international and domestic legal orders. In this article, I have argued that the future of domestic court engagement should not be in the perpetuation of these polarizing dichotomies, but in the fertile dialogic middle ground between these extremes. By recalibrating the judicial function in this way when engaging in review of decision-making by international institutions, domestic courts would not renounce, but rather recognize, their increasingly complex identity.

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5 In my discussion of ‘domestic courts’ in this article, I include reference to the case law of the European courts and also the UN Human Rights Committee as these bodies have each adopted a traditional public-law account of their reviewing function in the Security Council context, casting themselves in the same role as domestic courts vis-à-vis the Security Council.

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29 Ibid., at [81] per Lord Hope.

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34 These include (1) the right to be presumed innocent, (2) the privilege against self-incrimination, (3) the right of silence, (4) the right to legal aid and assistance, (5) the right to be brought promptly before a court, (6) the right to release pending trial, (7) the right to disclosure of documents, (8) the right to confront witnesses, (9) the right to be tried on evidence not obtained by violation of fundamental rights, (10) the right not to be placed in double jeopardy: Andrew Ashworth, Human Rights, Serious Crime and Criminal Procedure (2002).

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38 See Joined Cases T-306/01 and T-315/01, Kadi v. Council and Commission, [2005] ECR II-0000.

39 Ibid., para. 268.

40 Ibid., para. 288.

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49 Statute of the International Court of Justice, Art. 38(1)(d).

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68 The case of Othman provides an example of the Security Council confirming the interpretation of a Security Council resolution by a domestic court. In Othman, the English High Court read into domestic mechanisms implementing Security Council Resolution 1333 (2000) an exemption to assets freezes where the freeze would place the individual's life or health at risk: R. (Othman) v. Secretary of State for Work and Pensions, [2001] EWHC Admin 1022, § 57. The Security Council subsequently passed a resolution allowing for exemptions to the assets freeze to allow for basic expenses: Security Council Resolution 1452, 20 December 2002, Section 1. This is described in Tzanakopoulos, A., ‘United Nations Sanctions in Domestic Courts: From Interpretation to Defiance in Abdelrazik v. Canada (Minister of Foreign Affairs)’, (2010) 8 Journal of International Criminal Justice 249CrossRefGoogle Scholar.

69 For a depiction of the ‘dialectical’ nature of the dialogue between courts and legislatures at a domestic level, see Webber, G., ‘The Unfulfilled Potential of the Court and Legislature Dialogue’, (2009) 42 Canadian Journal of Political Science 443CrossRefGoogle Scholar.

70 Abousfian Abdelrazik v. Minister of Foreign Affairs 2009 FC 580, [4].

71 Ibid., at [129].

72 Tzanakopoulos, supra note 68, at 255.

73 Nada v. Switzerland, [2012] ECHR 1691 (12 September 2012).

74 Ibid., [170].

75 Ibid., [171], citing Al Jedda v. United Kingdom, [2011] ECHR 1092 (7 July 2011), [101]–[102].

76 Aruna Sathanapally details the value of declarations of incompatibility in ‘strengthening the institutional foundations of political deliberation – building up processes of reason-giving around rights – rather than further limiting judicial intervention’: A. Sathanapally, Beyond Disagreement: Open Remedies in Human Rights Adjudication (2012), 8.

77 Scholars who otherwise criticize traditional judicial review have recognized the benefit of less binding mechanisms by which to signal disagreement on the basis this accommodates the possibility of reasonable disagreement over judicial conclusions on the balance between rights and other pressing public interests: C. A. Gearty, Principles of Human Rights Adjudication (2004); F. Klug, Values for a Godless Age: The Story of the United Kingdom's New Bill of Rights (2000).

78 T. Hickman, ‘Constitutional Dialogue, Constitutional Theories and the Human Rights Act’, [2005] Public Law 303, 335.

79 Abousfian Abdelrazik v. Minister of Foreign Affairs, 2009 FC 580, [51].

80 Ibid., [53].

81 It has been said that a thousand years of common law are a thousand years of changes in the law in order to adapt it to the needs of a changing reality: J. Stone, Legal System and Lawyers’ Reasoning (1964), 209–98.

82 Barak, supra note 12, at 25.

83 L. Fuller, Anatomy of the Law (1968), 94.