NCJ Number
203643
Journal
Stanford Law Review Volume: 56 Issue: 2 Dated: November 2003 Pages: 429-529
Date Published
November 2003
Length
101 pages
Annotation
This article discusses whether an international judicial system is emerging and how courts should respond to this.
Abstract
Part I describes the factors that have led to the proliferation of international courts and the increased involvement of national courts in transnational issues. Part I also discusses factors that make interaction among these courts inevitable, and considers whether the growing network of courts can amount to a functional judicial system without any externally imposed hierarchy. The four different categories of rules that are common to well-functioning judicial systems are identified as rules related to concurrent jurisdiction, rules related to enforcement of judgments, rules related to precedent, and rules related to interactions with political bodies. Part II offers a framework to guide courts in crafting these sorts of rules for the international context. Just as in national judicial systems, these rules involve value-laden choices. Part II argues that a high degree of centralization of power at the international level is not only infeasible in light of political reality but is undesirable because it would have adverse effects in terms of democratic accountability. Courts should apply a sort of “antiparochialism” canon in deciding process-related issues in transnational cases. They should choose a path that furthers the development of an ordered, functional international judicial system by fostering communication among participants in the system. The questions of legitimacy, relevance, and feasibility are discussed. Part III describes the structure of the emerging international judicial system. Six types of institutional relationships are identified: (1) international court-international court; (2) international court-national court; (3) national court-national court; (4) international court-national legislature/executive; (5) international court-other international body; and (6) national court-government of another nation. Part III imagines the outline of what a coherent set of court-made procedural doctrines for the emerging international judicial system might look like. With careful attention to differences between domestic and international systems, courts can apply insights from the domestic context in crafting procedural rules for the international context. 366 footnotes