The role of national courts for the international rule of law : insights from the field of migration

Abstract

This paper evaluates the theory that national courts can act as agents for the protection of the international rule of law, i.e. the idea that, under certain conditions, national courts may compensate for the lack of international mechanisms of law enforcement and ensure that their own governments comply with international law. This theory is tested against a paradigmatic case study from the field of migration, the Diciotti affair, which serves as an example of international law violations caused by governmental policies of migration containment. In this incident, migrants rescued at sea by an Italian Coast Guard ship were confined onboard for a number of days in apparent violation of international legal standards. The breaches of international law which occurred during the incident were at the center of civil and criminal cases before the Italian courts. Even though, prima facie, the response of the Italian judiciary would appear to be a textbook confirmation of the view of national courts as guardians of the international rule of law, the paper argues that the Diciotti affair also suggests that caution is required as regards the actual powers of national courts to compel state authorities to respect international law.