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  • Leiden Journal of International Law, Volume 26, Issue 3
  • September 2013, pp. 579-597

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

Abstract
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.

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This list contains references from the content that can be linked to their source. For a full set of references and notes please see the PDF or HTML where available.

A. Chayes, ‘The Role of the Judge in Public Law Litigation’, (1976) 89 Harvard Law Review 1281

G. A. Spann, ‘Expository Justice’, (1983) 131 University of Pennsylvania Law Review 585

J. L. Hiebert, ‘Parliamentary Bills of Rights: An Alternative Model?’, (2006) 69 Modern Law Review 7

L. Fuller, ‘The Forms and Limits of Adjudication’, (1978) 92 Harvard Law Review 353

R. B. Stewart, ‘The Reformation of American Administrative Law’, (1975) 88 Harvard Law Review 1667

J. Waldron, ‘The Core of the Case against Judicial Review’ (2006) 115 Yale Law Journal 1346

C. Harlow, ‘Global Administrative Law: The Quest for Principles and Values’, (2006) 17 EJIL 187, 204

F. Mégret and F. Hoffmann, ‘The UN as a Human Rights Violator? Some Reflections on the United Nations Changing Human Rights Responsibilities’, (2003) 25 Human Rights Quarterly 314

M. Moran, ‘Shifting Boundaries: The Authority of International Law’, in J. Nijman and A. Nollkaemper (eds.), New Perspectives on the Divide between National and International Law (2007), 163

A. Tzanakopoulos, ‘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 249

J. E. Alvarez, ‘Judging the Security Council’, (1996) 90 AJIL 1

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Leiden Journal of International Law
  • ISSN: 0922-1565
  • EISSN: 1478-9698
  • URL: /core/journals/leiden-journal-of-international-law
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