Internationalizing Law against the Odds: The Power of Courts and Their Limits

Abstract

One major transformation of the constitutional state is the loosening of the nexus between territory and law. The growing density of European Union (EU) and international law and the interpenetration of domestic legal orders have led to an increasingly complex system of overlapping legal orders. Consequently, in order to determine which law applies when, procedures and boundary rules are required, and usually it is international courts that interpret and apply these kinds of rules. Our contribution seeks to explain why and under what conditions international courts promote legal internationalization even against the resistance of national governments. Given the interest of individual nation states in safeguarding their sovereignty, it is surprising that international courts are able and willing to do so.