I. Introduction

Judgment 238/2014 of the Italian Constitutional Court (ItCC)Footnote 1 is worth exploring from an international law perspective. Besides the obvious questions it raises in relation to state immunity, it also touches upon the role of domestic courts in international law. Sentenza 238/2014 is yet another illustration of how domestic courts in recent years increasingly became important actors on the international plane.Footnote 2 Not only do they contribute to the creation of new rules of customary international law;Footnote 3 they also fill certain gaps in the existing international legal order by applying and giving effect to international law. In this sense, and in line with Scelle’s theory of dédoublement fonctionnel,Footnote 4 domestic judges also fulfil an international judicial function,Footnote 5 and by doing so not only serve the domestic but the international rule of law as well.Footnote 6 The ruling of the ItCC, more than prior examples of domestic court engagement with international law, illustrates the ever more autonomous and self-confident role domestic courts play on the international plane—they do not even seem anymore to shy away from contradicting their governments, a development that seemed nearly impossible only years ago.Footnote 7 In this sense, Sentenza appears to suggest that the quest of the Institut de Droit International, which claimed in 1993 ‘to strengthen the independence of national courts in relation to the Executive and to promote better knowledge of international law by such courts’,Footnote 8 is becoming reality.

But Judgment 238/2014 also illustrates that greater engagement with international law does not necessarily mean that domestic courts enhance the effectiveness of international law. In the same vein, they are not automatically ‘partners’ of international courts and contribute to compliance with their judgments, as has been suggested.Footnote 9 To the contrary, the ruling of the ItCC shows that domestic courts—maybe increasingly—see the role they play at the intersection of legal orders also as one of ‘gate-keepers’, controlling the effects of international law at the domestic level and ready to cushion its impact if deemed necessary.Footnote 10 And whereas compliance has always been considered the Achilles’ heel of international adjudication,Footnote 11 Judgment 238/2014 stands out for yet another feature. It is an example of what has been termed ‘principled resistance’,Footnote 12 that is an instance of a case where a domestic court deals with an international judgment and deliberately decides to reject it.Footnote 13

Sentenza is thus yet another illustration of the dual—and often delicate—role domestic courts perform at the intersection of legal orders.Footnote 14 They are ‘servants’ to international law within the domestic realm and act as pivotal safeguards for its effectiveness. At the same time, they of course remain ‘answerable to the dictates of applicable domestic law’.Footnote 15 Domestic courts are, and in times of global governance probably increasingly will be, torn between the sometimes not easily reconcilable commands of domestic and international law: between an effective system of international adjudication on the one hand and key values of pluralism and constitutionalism on the other hand. Against this backdrop, Judgment 238/2014 offers a new opportunity to examine the role of domestic courts in international law, and, more concretely, in the implementation of the rulings of the International Court of Justice (ICJ/World Court). Recalling some famous instances in which domestic courts have been confronted with judgments of the ICJ, this chapter shows that despite the fact that in numerous situations domestic courts could act as compliance partners and help the ICJ to give effects to its rulings in the domestic sphere, in reality, more often than not, they have refused to do so (section II). After offering some possible explanations for this practice, the chapter moves to the normative level and tries to contribute to the important debate on what role domestic courts should play at the intersection of legal orders and vis-à-vis their international counterparts (section III). It first argues that, given the development of international law, the very state-centred view many domestic courts take is no longer adequate and that domestic courts should take a more active role in the implementation of ICJ judgments. On the other hand, even though good reasons can be brought forward to allow domestic courts to disobey the ICJ in extreme cases where a conflict with core principles of the domestic order seems unavoidable, the risk of setting dangerous precedents that may damage the authority of the World Court demands a careful balancing of the different interests at stake. The chapter concludes by finding that the ItCC’s attempt to reintroduce clear boundaries between legal orders lacks the openness and flexibility needed to effectively cope with today’s complex and plural legal reality (section IV).

II. The Dual Role of Domestic Courts at the Intersection of Legal Orders

1. Domestic Courts as Law Enforcers

Although international adjudication is often seen as a form of law enforcement, international judgments also need to pass the ‘acid test of inforcement [sic]’.Footnote 16 In fact, given that international courts lack the capability to take action within the domestic realm, the question of the enforcement of international judgments is as old as international courts themselves.Footnote 17 Whereas the enforcement of international judgments has traditionally been considered to be a political matter, best confined to the executive,Footnote 18 some have long suggested that domestic courts could fill the enforcement gap at the domestic level and play a role in giving effect to international judgments.Footnote 19

With regard to the World Court, domestic courts can play a role as ‘enforcers’ in two constellations.Footnote 20 First of all, a victorious state can bring an ICJ ruling before a domestic court to oblige the debtor state to comply. So far, however, it seems that no state has ever attempted to enforce an ICJ judgment against another state before a domestic court.Footnote 21 Not so, however, with regard to actions brought by private parties. In several instances private parties have called on domestic courts in order to bring a state to comply with an ICJ judgment.Footnote 22 That this constellation has been more relevant in practice is unsurprising despite the interstate nature of the procedure before the World Court, given that non-state actors and particularly individuals can have a strong interest in the effective enforcement of international judgments affecting their interests, which has often been the case even before the ICJ.Footnote 23 Driven by their interest, individuals operate in a ‘private attorney-general’ fashion and enhance the effectiveness of international law.Footnote 24

However, most of the attempts by private parties to enforce ICJ judgments before domestic courts have hitherto failed. The following examples suggest that domestic courts are reluctant to assume a role in the direct enforcement of judgments of the ICJ, and that they adhere to the old paradigm according to which domestic and international courts are ‘courts of a different legal order’.Footnote 25 In this dualist view, the obligations from international judgments remain purely international obligations. Either they are not self-executing—that is they are directed at the state as a whole, and it is not up to the judiciary to directly give effect to themFootnote 26—or individuals simply have no standing to enforce them.

An early example of a private party unsuccessfully seeking to enforce a judgment of the World Court—in this case the predecessor to the ICJ—is the case of Socobel v Greece. In this case the Permanent Court of International Justice (PCIJ) had confirmed the validity of a previously rendered arbitral award.Footnote 27 Based on the finding of the PCIJ, the Société Commerciale de Belgique sought to enforce the award and filed a claim to attach Greek assets before a Belgian court. The Tribunal Civil de Bruxelles, however, denied the possibility of giving effect to the findings of the PCIJ. It concluded that the plaintiffs needed an exequatur to enforce the judgment and held that ‘in the absence of an independent power of execution belonging to that Court [the PCIJ], which would enable litigants before it to execute its decisions de plano, these decisions are not exempt from the servitude imposed on Belgian territory on decisions of other than Belgian tribunals’. Furthermore, it concluded that the judgment of the PCIJ could not be considered a judgment in favour of the plaintiff because it was ‘inconceivable that a party which, by definition, is not admitted to the bar of an international court should be able to rely on a judicial decision in a case to which it was not a party’.Footnote 28

Another well-known example where a higher court was confronted with an enforcement action occurred in the course of the Nicaragua case. In its judgment the ICJ had found that the support of the Contra rebels by the US government had violated international law and ordered both the cessation of the illegal actions and the payment of reparations.Footnote 29 The US had vehemently opposed the bringing of the case before the ICJ and subsequently boycotted the proceedings on the merits stage. This was not a good basis for compliance. Not surprisingly, the US for several years continued its actions and openly defied the judgment of the World Court.Footnote 30 Against this backdrop, a group of private individuals tried to bring the US to comply with the judgment via domestic litigation. The domestic court they addressed, however, found that ‘neither individuals nor organizations have a cause of action in an American court to enforce ICJ judgments. The ICJ is a creation of national governments, working through the UN; its decisions operate between and among such governments and are not enforceable by individuals having no relation to the claim that the ICJ has adjudicated.’Footnote 31 More recently, the Constitutional Court of Colombia decided that a judgment of the ICJ concerning the territorial limits between Nicaragua and Colombia in the Caribbean SeaFootnote 32 needed to be implemented, in this case through the executive, by means of a treaty.Footnote 33

This reluctance and the underlying dualist view of these courts to a certain extent find their basis in international law itself.Footnote 34 Traditionally, international judgments are treated no differently than other international obligations and are formulated as ‘obligations of result’, stopping ‘short at the outer boundaries of the State machinery’.Footnote 35 The UN Charter states that ‘[e]ach Member of the United Nations undertakes to comply with the decision of the International Court of Justice in any case to which it is a party’ (Article 94(1)), from which it is generally concluded that the judgments of the World Court address the state as a whole and do not require a direct effect as a matter of international law.Footnote 36 For a long time, this was also the line followed by the ICJ, which limited itself to stating whether or not there was a violation of international law, without giving any indication about concrete steps to be undertaken as a consequence thereof. More recently, however, the ICJ cautiously began formulating more concrete obligations in its judgments, which led some observers to conclude that the Court might soon ‘pierce the veil’ and ask states to give direct effect to its judgments.Footnote 37 Unsurprisingly, several of these cases directly dealt with rights of individuals, and even less surprisingly some of these judgments subsequently ended up before domestic judges.

A milestone in this development was undoubtedly the LaGrand judgment, in which the ICJ famously stated that the Vienna Convention on Consular RelationsFootnote 38 also contained individual rights. It decided that the US had infringed upon these rights by not informing two German nationals, the LaGrand brothers—who had each received the death penalty in the US—of their rights under the Convention.Footnote 39 But the case that provoked a flurry of subsequent domestic proceedings was Avena, which involved 54 Mexican nationals on death row. In this instance, the ICJ had found that the US had violated the Vienna Convention on Consular Relations by having not properly informed the concerned Mexican nationals of their rights. Whereas in the operative part of the judgment, the Court limited itself to state that the appropriate reparation would consist in the ‘review and reconsideration’ of the convictions by means of the US’s choosing,Footnote 40 in the ratio decidendi the ICJ specified that it considered that ‘it is the judicial process that is suited to this task’.Footnote 41

Following this ruling, an individual petitioner not explicitly listed in Avena but in a situation similar to the one dealt with in the judgment, relied on the ICJ to have his sentence reconsidered. The US Supreme Court found that the ICJ deserved ‘respectful consideration’; this, however, did not mean that ‘its interpretations were intended to be binding on US courts’.Footnote 42 The Supreme Court thus considered itself incapable of giving effect to the conclusions of the ICJ in this case. It was only in Medellín that the US Supreme Court was confronted with a claim by an individual directly benefitting from the ruling in Avena. The petitioner, José Ernesto Medellín, was backed with a memorandum by the then president George W Bush, which ordered the courts of the US to give effect to the ruling of the ICJ.Footnote 43 However, the Supreme Court concluded that ‘neither Avena nor the President’s Memorandum constitutes directly enforceable federal law that pre-empts state limitations on the filing of successive habeas petitions’.Footnote 44 It interpreted the phrase ‘undertake to comply’ in Article 94(1) of the UN Charter as a ‘commitment by member states to take future action through their political branches (…)’.Footnote 45 The consequence of the lack of direct effect in this case is well known. José Ernesto Medellín was executed shortly thereafter.

A very different stance has been taken by the German Federal Constitutional Court (FCC). This court affirmed a certain direct effect of international judgments before German courts. Equally confronted with claims by foreign individuals—in this case Turkish nationals—that the Vienna Convention on Consular Relations had been violated, it extensively relied on LaGrand and Avena. It declared that German courts were in principle bound by the findings of the ICJ also in the absence of a formal act of ‘execution’ by the political branches. Building upon its jurisprudence on the effects of judgments of the European Court of Human Rights (ECtHR) and the constitutional principle of openness towards international law, the FCC stated that German courts had a duty to take into account ICJ judgments.Footnote 46 It came to this conclusion even though Germany had not been a party to the proceedings before the ICJ in this case and was therefore not legally bound by the judgments’ inter partes binding effect. The FCC thus accepted that any judgment of the ICJ (or any other international court) issued against another state deploys a ‘normative directing function’.Footnote 47

Called upon to clarify the obligations flowing from Avena in light of the different possible solutions, the ICJ subsequently had the chance to give its view on the matter. However, the World Court did not accept Mexico’s invitation to unequivocally ‘lift the veil’ and directly address state organs. Instead, it took a classical ‘black box’ stance, making clear that it does not require domestic courts to give effect to its judgments directly as a matter of international law.Footnote 48

2. Domestic Courts as ‘Gate-Keepers’

In most of the examples described above, domestic courts have thus denied the possibility to directly give effect to judgments of the ICJ and considered the political branches to be the organ most suited for their implementation. By contrast, in the judgment of the ItCC, the ‘self-executingness’ of the ICJ judgment was not at stake—the Italian parliament had enacted legislation implementing the 2012 ruling.Footnote 49 The reasons the ItCC brought forward were rather substantive. It argued that the enforcement of the ICJ judgment, obliging Italian courts to uphold state immunity—and deny jurisdiction—in cases of war crimes and crimes against humanity, would violate core principles of the Italian Constitution, namely the guarantee of judicial protection under Articles 2 and 24. Another difference between Judgment 238/2014 and the abovementioned examples is that the Italian Constitutional Court did not argue that implementation would still occure and that it is merely up to another state organ to give effect to the ICJ judgment. The ItCC rather held that the enforcement of the Jurisdictional Immunities Judgment would altogether be contrary to the Italian Constitution, and therefore that no state organ should give effect to it. It therefore declared, inter alia, the law implementing the ICJ judgment unconstitutional.Footnote 50

Sentenza 238/2014 is a telling example of how the Italian Constitutional Court perceives its role at the intersection of legal orders, and vis-à-vis its international counterparts. In other cases, it took a similar position. Towards the ECtHR, the ItCC stated in 2015 that it did not consider itself a ‘passive recipient of an interpretative command issued elsewhere in the form of a court ruling (…)’.Footnote 51 In this judgment, it restricted its hitherto open and friendly position towards the ECtHRFootnote 52 and made clear that it is keeping an active eye on Strasbourg, reserving the option not to follow the jurisprudence beyond what is strictly required under Article 46 of the European Convention on Human Rights (ECHR).Footnote 53 Most recently, the ItCC even spoke up against the European Court of Justice (ECJ). In a preliminary reference ruling, it argued that the application of the Taricco jurisprudence of the ECJ would violate fundamental rights under the Italian Constitution as well as the EU Charter of Fundamental Rights and threatened the ECJ to raise the controlimiti bar in case the latter insisted on its position.Footnote 54 To widespread astonishment, the ECJ yielded and adjusted its position,Footnote 55 a move that has been read by some as a successful example of judicial dialogueFootnote 56 and by others as ‘the first of many other humiliating and inevitable concessions to national constitutional courts in the near future.’Footnote 57

These examples illustrate that the ItCC sees itself as an active player on the international plane, willing to participate in the shaping of international law. In the Sentenza this also becomes clear by the fact that the ItCC refers to the Kadi decision of the ECJ,Footnote 58 explicitly expressing the ambition that its judgment, like Kadi,Footnote 59 may contribute to a development of international law in a direction more attentive to fundamental rights.Footnote 60

But these examples also show that the ItCC increasingly sees itself as a gate-keeper positioned at the intersection of legal orders, ready to step in and ‘shield’ the domestic order from effects of international law it considers negative. Of course, compliance with international law has always been an issue and a certain resistance against the World Court is nothing new. Even though the overall compliance rate of the ICJ is quite goodFootnote 61 and the enforcement mechanism of Article 94(2) of the UN Charter has been activated only once,Footnote 62 there are several well-known examples where compliance with a judgment on the merits has posed problems. One recurring issue is late compliance,Footnote 63 another cases in which states boycott the whole proceeding before the ICJ, or openly defy a ruling by other means.Footnote 64 It is, however, a different matter if domestic courts start to control international judgments and verify their constitutionality as a matter of principle, and therefore systematically ‘judge’ them anew, as the ItCC has started to do.Footnote 65 Despite the fact that a certain reservation towards international law and institutions as such is nothing new and that other constitutional courts have always reserved the right to step in and protect their constitutional orders, especially in more integrated orders such as the EU—the FCC possibly representing the most famous exampleFootnote 66—the important difference is that the ItCC no longer limits itself to issuing warning shots. This recent development clearly shows that it has started to actually apply the constitutional barriers and that it accepts the price of Italian responsibility under international law.

III. Which Role for Courts at the Intersection of Legal Orders?

How can this development be explained? It is argued here that it is neither surprising that clashes between international and domestic (constitutional) law seem to happen more frequently in recent times, nor that they often emerge with regard to judgments of international courts. This has not only to do with a quantitative change of international law, the proliferation of international courts and tribunals, and more generally the growing importance of international regulation in times of global governance, but also with a qualitative change of the norms. Whereas in the past, international law often remained vague and gave states considerable leeway for its implementation, the concrete orders of international courts reduce this leeway and make tensions or even frictions more likely.Footnote 67 Chances remain high that this development continues. The consequence is that domestic courts in the near future might be confronted more often with international judgments. This is also true for the ICJ which has started to formulate more concrete obligations.Footnote 68

This brief analysis thus shows once more the difficult—and arguably highly politicalFootnote 69—role domestic courts assume at the intersection of legal orders. The examples illustrate that the question of whether and how to give effect to international law is far from being a technical question.Footnote 70 Giving effect to international judgments rather involves complex constitutional questions and requires the balancing of sometimes conflicting but equally important interests like the effectiveness of international adjudication and the protection of fundamental constitutional principles, both of which can be considered aspects of the rule of law in a general sense. When asked to give effect to international judgments, domestic courts may even face the dilemma of, on the one hand, abiding by judicial decisions based on international law, which contradict fundamental protections in the domestic legal system, or, on the other hand, adhering to national (constitutional) law, which risks defying international law. More than as instances of backlash, much of the resistance to international courts by their domestic counterparts can thus be seen as an illustration of today’s complex and plural legal reality.Footnote 71

This raises the question of how domestic courts should deal with international judgments. It is submitted here that good reasons support a solid place for domestic courts in the enforcement of the judgments of the ICJ. First of all, the practice of the ICJ—hitherto considered the archetype of an ‘old style’ international courtFootnote 72—is changing. To be sure, the ICJ refrained from claiming that its judgments enjoy a direct effect in the domestic legal orders, as seen above.Footnote 73 Nonetheless, the position of the World Court has undeniably evolved: it is no longer exclusively a ‘Court of sovereign States’, becoming ‘also a court concerned with human rights, as human rights law has finally found its proper place within international law’.Footnote 74 The ICJ is now even said to contribute to a ‘humanisation in international adjudication’.Footnote 75

The purely state-centred view that some domestic courts still adopt seems to be at odds with this development. Whereas it might have made sense with regard to the ‘traditional’ international law which treated mainly interstate issues,Footnote 76 this is no longer the case for the ‘inward-looking’ international law of today.Footnote 77 Accordingly, the ‘fiction’ of the unitary state is increasingly being considered an obstacle to compliance with international requirements. In the words of Rosalyn Higgins, ‘compliance with the findings of international tribunals is made the more difficult exactly because while “the state” carries the international obligation to comply, the necessary action to achieve that must internally be performed by organs of state (…).’Footnote 78 This is even more so if the judgments directly touch upon rights or interests of individuals. Both the ECtHR and the Inter-American Court of Human Rights have stated that effective compliance with judgments is the materialization of justice for the concrete case,Footnote 79 and represents an important aspect of the right to have access to justice and the rule of law.Footnote 80 For individuals benefitting from a judgment of the ICJ, domestic courts are likely to be the only avenue open to reach compliance.Footnote 81 The use of classical ‘avoidance techniques’Footnote 82 seems inadequate in such situations.

However, this does not mean that domestic courts should follow the ICJ blindly. Given the increasing impact of international law on domestic systems and its persisting deficits, the claim for its absolute supremacy, and thus a rigid rule favouring the precedence of international law, seems neither normatively desirable nor to correspond to legal reality.Footnote 83 A growing body of scholarship argues that, given the lack of democratic legitimacy and effective safeguards for fundamental rights in certain areas of international law, at least the highest domestic courts should in exceptional cases have a ‘constitutional right to resist’ international law.Footnote 84 This means that they may exceptionally disregard international law where its application in the specific circumstances would result in a violation of core principles of the domestic constitutional order or the ‘constitutional identity’.Footnote 85 Under these narrow circumstances, disobedience is a tool that helps to moderate the negative side-effects of multilevel governance and to facilitate—and not disrupt—the interplay between different legal orders. In this vein, it might, in the long run, foster rather than weaken the ideal of the rule of law also at the international level.Footnote 86

This shows that seeing domestic courts in a binary fashion as either ‘gatekeepers’ or ‘compliance partners’ does not capture the complex role they play today at the intersection of legal orders. It has thus been suggested that it is at the same time more accurate descriptively and normatively preferable to view courts as bearers of ‘multiple identities’.Footnote 87 In this sense, domestic courts are now part of a wider network, a ‘global community of courts’,Footnote 88 and should have in mind the ‘overall systemic interest in creating an interlocking system of adjudication.’Footnote 89 Domestic courts should take into account that to abide by judgments resulting from disputes that the parties voluntarily submitted to an international court belongs to the very foundations upon which the system of binding international adjudication is built.Footnote 90 Non-compliance imperils ‘the raison d’être for the functioning’Footnote 91 of international courts, and arguably the (rather fragile) international rule of law. Rather than as guardians of one particular order, in today’s complex legal reality courts should thus see themselves as mediators between orders.Footnote 92 More than strict conflict rules and hierarchies, what better fits to the complex reality is an approach that allows to take into account the different interests at stake and to balance them. This again does not require to follow international courts at any prize, but at least to seriously engage with them and consider their rulings. This flexible, procedural solution thus reflects the fact that many different interests and claims are at play and to a certain extent allows to reconcile the multiple roles played by domestic courts.

The middle-ground position some courts such as the FCC take, requiring to take into account international judgments, seems most suited to reconcile those multiple roles of courts.Footnote 93 Certainly, this jurisprudence has been extensively criticized, especially in the context of the European human rights system, precisely because it widens the scope of possibilities to disregard binding judgments.Footnote 94 The Russian Constitutional Court even called it an ‘emblematic’ example of deviation from judgments of the ECtHR.Footnote 95 However, this line has thus far allowed German courts to reconcile claims of the different legal orders with few frictions. The reason is that the FCC reads this requirement generally in a result-oriented and international law friendly way, seriously engaging with its international counterparts.Footnote 96 By contrast, for the US Supreme Court in order to satisfy the requirement of taking into account international judgments, a mere reference to the relevant judgment seems to suffice.Footnote 97 Such merely formal cross-referencing certainly does not allow a serious engagement and lacks the openness needed to effectively cope with today’s complex legal reality.

How is Judgment 238/2014 to be read against this backdrop? Two aspects of the judgment deserve to be highlighted in this regard. First of all, and despite the fact that the ItCC stresses that the effect of its judgment remain limited to the Italian legal order,Footnote 98 its aim is not only to avoid legal consequences it deems intolerable, but furthermore to contribute to the evolution of the law of immunities in a way more considerate of human rights.Footnote 99 It thus considers that it enters into a form of judicial dialogue with the ICJ with the aim to push for a change it deems necessary.Footnote 100 Especially in the European human rights system, domestic courts have sometimes successfully entered into such a dialogue,Footnote 101 which enhances the ‘shared responsibility’ for the standards of the ECHRFootnote 102 and provides ‘a constructive way for channeling substantive disagreement or criticism (…)’.Footnote 103 However, it is submitted here that to enter into a ‘dialogue’ with the ICJ seems less fruitful from the outset. Other than the human rights courts, the World Court is much less flexible and does not have the same possibilities to react.Footnote 104 In the case of the ECtHR, for instance, the Grand Chamber can correct a judgment. Furthermore, in the European system a change of jurisprudence is much easier to undertake due to the rich case-law of the ECtHR. This is different for the World Court, which only deals with a handful of cases per year. The risk of damaging its authority seems thus even bigger.Footnote 105 In fact, in cases of legal conflict such as in the one at hand, where a domestic court (at least de facto) contests a final and binding international judgment with the consequence that enforcement of this judgment becomes difficult or even impossible, the term ‘dialectical review’ seems to fit better than ‘judicial dialogue’.Footnote 106

The second point relevant from the viewpoint of the interaction of different legal orders is that Sentenza 238/2014 indicates a move towards a more national and ‘gatekeeper’ type of understanding of the ItCC’s role at the intersection of legal orders. Even though it would be too far-fetched to read Sentenza as an instance of nationalism trumping multilateralism and as an inevitable sign of crisis and decline of the international judiciary, the judgment clearly indicates a certain shift of the ItCC to a more dualist vision of the relationship between legal orders. Whereas several of the recent judgments of the ItCC touching upon the relationship of the Italian legal order with international or European law show that the Corte pursues a more substantive check and makes the application and enforcement of legal norms from other orders dependent on their compatibility with Italian law,Footnote 107 in the Sentenza it becomes particularly clear that by neatly distinguishing the ‘inside’ from the ‘outside’, the ItCC attempts to reintroduce clear boundaries between legal orders. And while this might be seen as a reaction to some of the problems and controversies surrounding global governance, it is submitted that such a stance lacks the openness and flexibility needed to effectively cope with the challenges of today’s complex and plural legal reality. Rather than shielding off their legal orders, domestic courts should acknowledge that they are important actors at the intersection of legal orders, and that the functioning of the overall system in the long run to large extents will depend on them.Footnote 108 Moreover, they should be aware that their judgments are indeed read and that nowadays their audience is global. The danger of setting dangerous precedents is thus a real one. The fact that the Russian Constitutional Court justified its disregard for judgments of the ECtHR explicitly relying, among others, on the ItCCFootnote 109 indicates that Pandora’s box is already wide open.

IV. Conclusion

Judgment 238/2014 is a good occasion to explore once more the role of domestic courts in international law. This chapter has done so with regard to the particular question of the relationship between domestic courts and international courts, and more concretely the ICJ. As the case studies show, though domestic courts could act as enforcers of judgments of the World Court, in many instances they have not assumed such a role and deferred implementation to the political branches. This chapter argues that in light of the current state of international law and the important role the individual now plays—however indirectly—before the ICJ, the very dualist stance many domestic courts take is inadequate. Often, domestic courts can be the only avenue available for individuals to enforce judgments rendered in their favour. That this can be a matter of life or death is highlighted by the Avena saga. On the other hand, in light of the growing impact of international law and its persistent deficits, it seems too far-reaching to expect domestic courts to follow international courts blindly. A certain control undertaken by domestic courts might compensate for these deficits and in the long run even contribute to the international rule of law. However, in the face of today’s plural legal reality, domestic courts should take into account and carefully balance the different interests at stake, namely an effective system of international adjudication and the protection of fundamental constitutional principles. Only in very exceptional circumstances should they contradict their international counterparts. This is even more so in the case of the ICJ, which after all barely has a chance to react. The danger of damaging its authority seems significant. Domestic courts should recognize that they are crucial actors at the intersection of legal orders, and that a functioning system of adjudication across levels and orders at the end of the day will to large extents depend on them.