Civil disobedience to international law: national fundamental rights resistance and the power of international constitutionalism

Resumo

To the delight of Westphalian international law pluralists, recent decisions by national and regional courts have sharply challenged the authority of international organizations and tribunals. The U.S. Supreme Court, in Medellín (2008), rejected the power of the International Court of Justice (ICJ) to stick its own provisional measures in the wheels of Texan criminal justice. In the famous Kadi case (2008), the Court of Justice of the European Union (CJEU) challenged the applicability of Security Council anti-terrorism sanctions for their violation of European fundamental administrative justice rights. More recently (2014), the Italian Constitutional Court rejected the ICJ’s decision requiring Italy to respect the international customary law protection of Germany’s sovereign immunity from civil claims brought in Italian courts. Such national disobedience poses a challenge to the international constitutionalist ideal, by which state compliance with international law is assumed to promote human rights and the rule of law. But not all expressions of national disobedience to international law are homologous, and this paper will defend a kind of limited, “civil” disobedience to international law, where national fundamental rights, ultimately international in character, are at stake.