A dialogue model: the role of the domestic judge in security council decision-making

This article proposes a different theoretical account of the role of domestic courts when engaged in judicial review of decision-making by international institutions. Many domestic courts in democratic societies operate in accordance with a ‘public-law model’ when adjudicating questions related to international decision-making, underwritten by respect for doctrines such as the rule of law and separation of powers. Drawing on a case study of domestic-court decisions in the Security Council sanctions context, this article seeks to demonstrate how the public law model's focus on concepts of ‘bindingness’ and hierarchy between judicial and political organs can lead to distorted outcomes when applied to decision-making by international institutions. As an alternative, the author proposes a different theoretical account of the judicial role, described as the ‘dialogue model’, of courts when engaging in the review of Security Council decision-making. The idea is that domestic courts should confine themselves to tools of ‘interpretation’ and ‘declaration’ in their approach to international decision-making, so as to position their judgments in a more theoretically supportable way in the broader legal context.