Rethinking the International Rule of Law: The Homogeneity Fallacy and International Law’s Threat to Itself
I am not alone in seeing something heroic in André Nollkaemper’s National Courts and the International Rule of Law. He has pulled together a massive database comprising domestic judicial decisions that invoke international law. Now he seeks to make something out of it. He envisions these decisions as laying the foundation for broader engagement of domestic courts in the construction of international law. As this encounter grows, he sees both a more effective and more valuable international law emerging. Gradually, but, it seems, inexorably, the international rule of law (hereinafter IRL) will materialize. Nollkaemper’s project, in sum, involves both the description and the direction of judicial activity. He observes decisions that promote IRL and proposes them as a template for a broader international practice. He seeks to lead domestic courts toward the right kind of international law enforcement. More and better IRL, not simply international law enforcement, is the goal. Law enforcement alone is not sufficient, because not all international law is equal. Rather, IRL requires the realization of the core values of the international legal system, those that appeal to the better angels of our nature and promote decency and civilization. My perspective, while admiring, is critical. Nollkaemper brilliantly develops what I (and others) understand to be a European perspective on international law. But it is one with serious limitations. At its heart, it embraces two principles at war with each other.