Author: Tomer Broude / Content Type: Journal Article / Journal: The Goettingen Journal of International Law

Author:: Tomer Broude and Andreas L. Paulus
Publication Date:: 11-2012
Content Type:: Journal Article
Journal:: The Goettingen Journal of International Law
Institution:: The Goettingen Journal of International Law
Abstract:: Over the last decade, international constitutionalism has been the focal point of contemporary international legal debate and practice, as evidenced inter alia by the Kadi-Jurisprudence of the European Courts and the burgeoning literature that employs constitutional as well as fragmentation terms with respect to modern international law. The discourse deals with the pluralistic structure of modern international law, post-national law and constitutional diversity, as well as the quest for an international rule of law, the shifting allocation of authority in international law and the possible demise of general international law. This seemingly new discourse is all- pervasive, with implications in international politics, law, trade, human rights and, global environmental law.
Topic:: International Law
Political Geography:: Europe and Germany

Author:: Tomer Broude
Publication Date:: 11-2012
Content Type:: Journal Article
Journal:: The Goettingen Journal of International Law
Institution:: The Goettingen Journal of International Law
Abstract:: In this article the author makes two complementary arguments, one deceptively simple, the other deceptively esoteric. First, contemporary international courts and tribunals (most, though not necessarily all) are increasingly requested, or required (often, though not always), to adjudicate issues in ways that are tantamount to international constitutional judicial review of national acts and domestic measures, rather than traditional interstate dispute resolution. This is a point that seems to have so far evaded most of the contemporary literature on the continually enhanced judicialized system of international law, and its constitutionalization. Second, in order to understand the emergence of this current predilection towards constitutional judicial review at the international level, it is instructive to look back to Hans Kelsen's post-World War II visionary approach towards the (then) prospective constitutional role of the international judiciary. This approach is analogous to (and has its roots in) Kelsen's Weimar-era positions on the preferred role of courts as constitutional guardians in domestic legal systems. These arguments are demonstrated through analyses of recent jurisprudence of the ICJ, the WTO, and the ECtHR.

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