International Law in Domestic Courts in an Era of Populism

This article examines the manner in which the rise of populism affects the use of international law by domestic courts. It argues that populism is likely to have a negative effect on the willingness of domestic courts to refer to international law. It further argues that although such response is understandable, it is regrettable, since incorporation of international law into domestic court rulings can serve as a counter-populism measure.

Maintaining international law as part of the domestic legal discourse is particularly important in a populist setting, for two reasons. First, where constitutionalism is overtaken by populists, international law can serve as an important source on which courts can draw to protect human rights. In addition, referral, analysis and application of international law are means of maintaining pluralism in legal and public debate and, accordingly, of enhancing democracy.