Judicial internationalization proves spillover to global rule of law.

An alternative line of reasoning suggests that judicial internationalisation is legitimated partly by an appeal to its conduciveness to the promotion of the rule of law, democracy, human rights and constitutionalism at home and abroad.42 Indeed, this notion informs much of the literature arguing in the direction of judicial internationalisation.

Concluding an analysis of judicial globalisation, Slaughter notes,

‘[i]n sum, judges around the world are coming together in various ways that are achieving many of the goals of a formal global legal system: the cross-fertilization of legal cultures in general and solutions to specific legal problems in particular; the strengthening of a set of universal norms regarding judicial independence and the rule of law (however broadly defined)’.43

In this context, it is often noted that judicial internationalisation is conducive to the consolidation of independent judiciaries in recently established and consolidating democracies. Through judicial internationalisation, newly established judiciaries benefit from the expertise, support, status and persuasive authority derived from global judicial networks. This socialisation ‘[i]s important for convincing judges to try to uphold global norms of judicial independence and integrity in countries and at times when those are under assault’.44 Justice Breyer also considers this consequence of judicial internationalisation to be generally desirable:

‘in some of these countries there are institutions, courts that are trying to make their way in societies that didn’t used to be democratic, and they are trying to protect human rights, they are trying to protect democracy. They’re having a document called a constitution, and they want to be independent judges. And for years people all over the world have cited the Supreme Court, why don’t we cite them occasionally? They will then go to some of their legislators and others and say, “See, the Supreme Court of the United States cites us.” That might give them a leg up, even if we just say it’s an interesting example.’45

Indeed, Ken Kersch argues that several US Supreme Court judges, in referencing foreign law, both consciously and subconsciously subscribe to the core tenets of liberal internationalism, holding that:

‘[w]hen judges from well-established, advanced western democracies enter into conversations with their counterparts in emerging liberal democracies, they help enhance the status and prestige of judges from these countries. This is not, from the perspective of either side, an affront to the sovereignty of the developing nation, or to the independence of its judiciary. It is a win-win situation which actually strengthens the authority of the judiciary in the developing state. In doing so, it works to strengthen the authority of the liberal constitutional state itself. Viewed in this way, judicial globalisation is a way of strengthening national sovereignty, not limiting it: it is part of a state-building initiative in a broader, liberal international order’.46

The notion that judicial internationalisation promotes such values as democracy and the rule of law is prominent in an article by Flaherty, who asserts that:

‘Looking forward, judicial globalisation becomes not just permissible but imperative once the hoary doctrine of Separation of Powers is itself considered in a global context. Global Separation of Powers theory views globalisation as enhancing the powers of the executive in any particular country. It follows that any form of globalisation that works to enhance the authority of a corresponding judiciary (or legislature) works to maintain and restore the goal of balance among the principal branches of government that is the definitive feature of Separation of Powers doctrine’.47

Somewhat paradoxically, Flaherty argues that by abandoning a strictly domestic understanding of the separation of powers and thus accepting judicial internationalisation as a permissible and even desirable practice actually strengthens the separation of powers at the national level by creating a global judicial power. Karel Wellens underscores the same accountability-reinforcing function externally, through such activities as acting as a watchdog with regard to international organisations. In this respect, international courts are the primary actors, although domestic courts are gaining ground as International Organisation immunity is becoming the subject of increasing debate.48

In this view, a judiciary that actively works to promote and streamline liberal democracy abroad by engaging in transnational relations is not weakening its legitimacy, but strengthening it. Both this section and the previous section suggest that the notion that a judiciary is blind beyond its borders, dealing solely with domestic matters, has become chimerical. In a globalised world, the judiciary must recognise that its moral responsibility includes attentiveness to extradomestic factors, including global constitutionalism and the export of the rule of law.