Do Judges Meet their Constitutional Obligation to Settle Disputes in Conformity with ‘Principles of Justice and International Law’?

Abstract

This contribution argues that the universal recognition of human rights requires judges to take human rights more seriously in their judicial settlement of disputes “in conformity with the principles of justice and international law”, as prescribed in the Vienna Convention on the Law of Treaties (Preamble VCLT) as well as in the UN (United Nations) Charter (Article 1). Section I explains the constitutional duty of judges to interpret law and settle disputes in conformity with principles of justice as increasingly defined by human rights. Section II argues that the ‘multilevel judicial governance’ in Europe – notably between the European Court of Justice (ECJ) and its Court of First Instance, the EC courts and national courts, the European Free Trade Area (EFTA) Court and national courts, and the European Court of Human Rights (ECtHR) and national courts - was successful due to the fact that this judicial cooperation was justified as multilevel protection of constitutional citizen rights and, mainly for this reason, was supported as ‘just’ by judges, citizens and parliaments. Section III concludes that the European ‘Solange-method’ of judicial cooperation ‘as long as’ other courts respect constitutional principles of justice should be supported by citizens, judges, civil society and their democratic representatives also in judicial cooperation with worldwide courts and dispute settlement bodies. As explained in Section IV, in a world that continues to be dominated by power politics and by reasonable ‘constitutional pluralism’, it is easier for international judges to meet their obligation to settle disputes “in conformity with principles of justice” if courts cooperate and base their ‘judicial discourses’ on ‘public reason’, respect for human rights and judicial protection of the constitutional principles underlying human rights law.