Judges without borders: international human rights law in domestic courts
The judicial branch has long been viewed as the weakest branch of government. Yet remarkably, the domestic judiciary has emerged as a significant actor on the international stage. Around the world, domestic courts are issuing rulings that shatter the long-standing norm of sovereignty while advancing the human rights norms found in international law---a process I call the domestication of international law. Through this process, international human rights law has gone from an almost entirely rhetorical statement of ideals to a domestically enforceable system of law. International human rights norms have begun to provide the citizens of the world with basic legal protections that they can enforce judicially. As a result, the "least dangerous branch" of government has become a major force in the pursuit of international justice.The domestication process sheds new light on existing theoretical understandings of the relevance of both the courts and of international law. This dissertation traces the evolution of this process: from the relative isolation of U.S. tort law, where the seminal transformation of international norms into practical legal protections received little notice; to the halls of Britain's highest court, where the entire world watched as the Law Lords determined the fate of a former head of state; to the culmination in Israel's highest court, which issued a direct challenge to its own executive and legislature on a fundamental matter of security. To account for the domestication process, this dissertation has identified the central factors that these cases have in common. First, as activist judiciaries engaged in public law litigation, domestic courts began to promote more internationally oriented rights discourse. Second, they seized on the opportunity to expand their rights-based activism by incorporating international norms based on democracy and individual rights. These norms were in ascendancy after the end of the Cold War gave rise to newly democratizing states. Domestic courts took note of the widespread recognition of democracy during this period and transformed this recognition into a set of substantive legal obligations. Finally, these courts were acting as members of an international community of justices---the global judiciary.
- Political science