From Compliance Partners to Gatekeepers? The Role of Domestic Courts in Interpreting and Enforcing IHRL

“The future of international law is domestic” – domestic courts are considered to play a crucial role in international law. In a legal system lacking centralized law-making and enforcing mechanisms, great hope is being placed on these actors in applying and enforcing the law. Even though international human rights law, with well-established institutions such as the European and the Inter-American human rights courts, is institutionalized to a greater extent than other international legal areas, domestic courts also play a major role here. The development of the convention guarantees in both the European and the Inter-American systems is a common task of domestic courts and the ECtHR/the IACtHR, respectively, and domestic courts are considered to be important “compliance partners” of their regional counterparts. Numerous studies over the last years have started to explore the potential of domestic courts at the intersection of legal orders. Recently, however, in both Latin America and Europe cases have made headlines in which domestic courts refused to follow the ECtHR and the IACtHR and at times even openly contradicted them. Are we witnessing a turn to a less open and more “nationalist” self-perception of domestic courts? What is the proper role of domestic courts in the engagement with international law, vis-à-vis their international counterparts, but also in respect to the executive and legislative branches? These are some of the questions that will be addressed in this session of the Bonavero Discussion Group by Raffaela Kunz. 

An audio recording of this event is available to listen to on Soundcloud

Raffaela Kunz is a Senior Research Fellow at the Max Planck Institute for Comparative Public Law and International Law and Co-Editor-in-Chief of Völkerrechtsblog. In her recently published award-winning PhD (Richter über internationale Gerichte? Die Rolle innerstaatlicher Gerichte bei der Umsetzung der Entscheidungen von EGMR und IAGMR, Springer 2020), she explored the multifaceted roles of domestic courts in the implementation of judgments of the European and the Inter-American human rights courts. Her current research project deals with access to scientific knowledge in the digital age and the constitutional and human rights considerations guiding Open Science. The project also addresses some of the criticism voiced against human rights and discusses whether individual human rights are suited to cope with the structural inequalities between peoples and societies marking today’s international order.

Alejandro Chehtman will be the respondent. He is Professor of Law at Universidad Torcuato Di Tella (Argentina) and a Fellow at the Argentine National Research Council (CONICET). He specializes in International Criminal Law, International Humanitarian Law, and on empirical work on courts and tribunals. His work has been published in the European Journal of International Law, Legal Theory, Journal of International Criminal Justice, Leiden Journal of International Law, and the Journal of Law & Courts, among others. He published The Philosophical Foundations of Extraterritorial Punishment (Oxford University Press), and is currently finishing a monograph on A Theory of Asymmetrical Conflicts (Oxford University Press) that will appear in 2021.

This event forms a part of the repertoire of International Events Around the Moot for the participants, judges and coaches of the Price Media Law Moot Court Competition 2020/21. Please remember to register in order to access the event.