Alter, Karen J. --- "National perspectives on international constitutional review: diverging optics" [2018] ELECD 772; in Delaney, F. Erin; Dixon, Rosalind (eds), "Comparative Judicial Review" (Edward Elgar Publishing, 2018) 244

Book Title: Comparative Judicial Review

Editor(s): Delaney, F. Erin; Dixon, Rosalind

Publisher: Edward Elgar Publishing

ISBN: 9781788110594

Section: Chapter 13

Section Title: National perspectives on international constitutional review: diverging optics

Author(s): Alter, Karen J.

Number of pages: 28

Abstract/Description:

This chapter begins with a brief discussion of the how states delegated to international courts the jurisdictional authority to conduct constitutional review of international and state acts, but how effectively exercising this delegated authority depends on a domestic legal culture of constitutional obedience to international law. It then surveys different examples of national supreme courts embracing or rejecting the validity of international judicial decision, defining two different approaches to international judicial review: the luxury good optic, which suggests that although international courts (ICs) may exercise valid legal authority to generate binding legal rulings, IC rulings are external and domestically superfluous, providing neither binding nor guiding jurisprudence relevant in the national realm, and the fail-safe optic, which insists that IC rulings must guide and perhaps even bind national legal review. The author examines examples from the United States, Columbia and Germany to illustrate the luxury-good optic and examples from Nicaragua and Zimbabwe to illustrate the failsafe optic before concluding that there is an intermediate approach taken by the German Constitutional Court, which is superior to these two alternatives.