Participating in the Governance of Globalization through Law: New Horizons for National Supreme Courts

By their very nature, supreme courts intervene within the perimeter of a State. It is their responsibility to ensure the unity of the law in a country and to ensure the development of case law that national law needs. Thus, they could have seemed weakened by the growing internationalization of the law, which is manifested by the strengthened authority of international treaties and the increased role of international jurisdictions. The phenomenon is particularly marked in Europe, where the law of the European Union and the law of the European Convention on Human Rights are combined.  Europe is also the place where, through the dynamism of their jurisprudence, the two European courts, the Court of Justice of the Union, based in Luxembourg, and the European Court of Human Rights, based in Strasbourg, give full scope to these two interactive and often intermingled branches of European law.

However, the globalization of law has also opened up new horizons for national supreme courts. With demands for independence and impartiality expressed at the international level, these courts have seen their own guarantees strengthened and they are called upon to play a greater role in ensuring that the courts under their authority comply with these requirements. They contribute to the construction of a law beyond borders and fulfill an eminent mission in the dialogue of judges that is established to define its contours. The decisions they render often meet with a reach that goes far beyond their own country. Thus, far from being victims of the globalization of law, they are rather committed actors and beneficiary partners. In other words, globalization strengthens them institutionally and broadens their jurisprudential office.

1. The globalization of law strengthens the supreme courts at the institutional level

From an institutional point of view, globalization has been accompanied by an increase in the number of supreme courts and a strengthening of their authority.

1.A. An increased number

Some supreme courts are the heirs of a long history. Such is the case in France of the Conseil d’Etat, whose evolution has accompanied that of political institutions since the Ancien Régime and to which the Consulate’s constitution gave its modern form in the year VIII. The same can be said of the Court of Cassation, which is a descendant of the Paris Parliament’s monarchy and then of the Tribunal de cassation, instituted in 1790. Nevertheless, the family of supreme courts has grown in recent years and the globalization of law has played a large part in this. It has played a decisive role in the multiplication of constitutional courts and in the appearance of new supreme courts.

Born in the United States with the 1803 Supreme Court decision Marbury v. Madison, the constitutionality review of laws took a long time to cross the Atlantic. In the aftermath of the First World War, it appeared, under the influence of Kelsen and in the context of the disappearance of the Austro-Hungarian Empire, in the Austrian constitution of 1920, which created a constitutional court. But the Austrian case remained an exception in Europe, and it was not until the ideals asserted after the victory over Nazism that the constitutional courts became more widely established there. All over the world, their institution is linked to the restoration of democracy and the will to consolidate it. A constitutional court was created in Japan in 1947, in Italy in 1948, and the German Basic Law of 1949 established the Karlsruhe court. With the return of Portugal and Spain to democracy, the link between constitutionality review and democracy became stronger: a constitutional court is provided for in both the Portuguese constitution of 1976 and the Spanish constitution of 1978. After the fall of the Berlin Wall and the break-up of the Soviet Union, a similar movement can be observed in Eastern Europe, including Russia, where the Constitutional Court was established in 1991.

Although major democracies such as the United Kingdom, Denmark, the Netherlands, Norway, Sweden and Switzerland continue to ignore constitutional justice, there is an international dimension to the spread of constitutional courts. With nuances between countries, a European model of constitutional court, distinct from judicial and administrative supreme courts, is taking shape and differing from the American model of a single supreme court. In the many countries where they now exist, constitutional courts are joining the classical supreme courts, which adjudicate cases as final instance. If, from one country to another, the articulations between the traditional supreme courts and the new constitutional courts vary, a new component is enriching the generic category of national supreme courts, along with the constitutional courts.

The supreme courts themselves are becoming more numerous. In Germany, five federal courts specialize in civil and criminal, administrative, financial, social and labor law. They each have the status of the supreme court of their respective jurisdiction, although the Constitutional Court of Karlsruhe can be appealed to the Constitutional Court of Karlsruhe if their decisions do not comply with the principles of the fundamental law.

Particularly characteristic of the development of supreme courts is the recent creation of the Supreme Court of the United Kingdom. Traditionally, the role of supreme court was vested in the Judicial Committee of the House of Lords, composed of twelve Law Lords.  Chosen from the country’s most eminent jurists, they sat both as Members of Parliament in the House of Lords and as judges of last resort on the Judicial Committee. This organization, inherited from the past but very unique in terms of the separation of powers, came to an end with the Constitutional reform act of 2005, passed under Tony Blair’s government. Effectively established on October 1, 2009, the new Supreme Court brought British institutions closer to international standards and immediately took its place among the great courts whose jurisprudence has an echo beyond national borders. Its international dimension is all the more affirmed since it has also inherited the powers of the Privy Council with respect to Commonwealth countries that continue to accept its jurisdiction of last resort.

Being more numerous and diversified, the supreme courts have also strengthened their authority.

1.B. A strengthened authority

In the United States, where the Supreme Court has traditionally played a decisive role in deciding major social issues, the end of racial segregation ¹ , the death penalty ² , acceptance of voluntary interruption of pregnancy ³ , affirmation of the right to recourse for Guantanamo detainees ⁴ , recognition of marriage for all ⁵ , the intervention of supreme courts in legal and political debates is increasingly widely recognized.

The example of the French Constitutional Council is significant in this respect. Initially conceived as an institution responsible for guaranteeing the prerogatives of the government vis-à-vis Parliament, Professor Rivero calls it a “watchdog of rationalized parliamentarism.” It has gradually asserted itself as a true constitutional court. Through its jurisprudence, it has incorporated into its control the conformity of laws with the principles of the Preamble from its decision of 16 July 1971 on freedom of association. The opening of its referral to sixty deputies or sixty senators in 1974 and the introduction in 2008 of the priority issue of constitutionality (“question prioritaire de constitutionnalité”), which makes it accessible to citizens, completed the evolution. A similar rise in power can be seen in Belgium, where the court of arbitration, created in 1980, took the name of constitutional court in 2007.

For its part, the new Supreme Court of the United Kingdom recognized its jurisdiction to decide far-reaching constitutional questions when it ruled that Brexit could not, in view of its implications for the rights and freedoms of British citizens, be decided without a vote of the Westminster Parliament. Nonetheless, the consent of the local assemblies of Scotland, Wales and Northern Ireland was not required ⁶ . Then it did not hesitate to censor the decision of the government of Boris Johnson to suspend the work of Parliament for five weeks in order to have freer hands in the negotiation of the withdrawal agreement with the European Union ⁷ .

Faced with the imperatives of the fight against terrorism as well as with the measures necessary to combat the Covid-19 epidemic, the reconciliation between a state of emergency and the rule of law has been ensured by the jurisprudence of the supreme courts, which, seized with similar questions, have provided comparable answers. In France, the law of June 30, 2000 has enabled the judge in charge of summary proceedings at the Conseil d’Etat to intervene within a very short period of time and to provide a legal framework for both the state of emergency from 2015 to 2017 and the state of health emergency in 2020. The concern to ensure that the measures taken were strictly proportional to the requirements of the situation led, during the state of emergency, to the imposition of house arrest ⁸ and administrative searches ⁹ . During the state of health emergency, the same concern has arisen particularly in the decisions regarding freedom of demonstration ¹⁰ , registration of asylum applications ¹¹ , surveillance by drones ¹² , opening of places of worship ¹³ , and the need for the presence of the accused before the court ¹⁴ .

The authority of the supreme courts is also increasing through the strengthening of the guarantees they have and the role that is increasingly entrusted to them to ensure the independence of their court system. In France, the constitutional amendment of July 23, 2008 thus shifted the presidency of the Supreme Council of the Judiciary from the President of the Republic to the first president of the Court of Cassation. It also shifted this function to the public prosecutor before this court, depending on whether it is a question of debating the issues that are of interest to judges or to prosecutors. The Vice-President of the Conseil d’Etat also chairs the High Council of Administrative Courts and Administrative Courts of Appeal. These developments are not unrelated to the decision by which the Conseil d’Etat ruled that although a decree had been able to give the General Inspectorate of Justice the power to examine the administrative and financial management of the judicial courts, without of course interfering in the assessment of the decisions handed down, it had, on the other hand, illegally included the Court of Cassation in the scope of its control. Special guarantees, which had not been provided for, were needed for the judiciary, given its mission at the top of the judiciary and the role assigned by the constitution to its first president and its attorney general at the head of the Superior Council of the Judiciary ¹⁵ .

Strengthened from an institutional point of view, the national supreme courts also exercise, in the globalized legal world, an enlarged jurisprudential power.

2. Globalization of law expands the jurisprudential office of supreme courts

The globalization of law extends the jurisprudential office of the supreme courts in two ways. Firstly, it confers on them powers that underline the specificities of their intervention. Secondly, it leads them, despite the difficulties, uncertainties and tensions that appear in certain countries and with regard to certain decisions, to hand down judgments that go beyond the framework of their own State to contribute, through exchanges across borders, to the emergence of shared principles and thus to contribute to laying together the foundations of a global law. Organized as a network, the supreme courts judge beyond borders.

2.A. The network of supreme courts

In the globalized world, supreme courts are exercising a renewed office. In addition to their role as judges of last resort, at the top of a court system, they are also particularly qualified representatives of the justice system of their State in the globalized world where judges from different countries have to exchange views in order to coordinate their jurisprudence.

European law particularly highlights the specific place of supreme courts.

As early as the Treaty of Rome of 1957, a distinction appeared between the supreme courts and the other courts. While the latter may, in the event of serious difficulty over the interpretation of Union law or the validity of a norm of secondary legislation, refer a question to the Court of Justice for a preliminary ruling, the supreme courts are obliged to do so. The particularity of the supreme courts is even more marked in the procedure introduced by Protocol No. 16 to the European Convention on Human Rights, which entered into force in 2018. This protocol reserves the possibility for the supreme courts of countries that have ratified it to request an advisory opinion from the European Court of Human Rights on a question of principle relating to the interpretation or application of the Convention. Finally, the national supreme courts participate in the choice of European judges. Article 255 of the Treaty on the Functioning of the European Union thus created a committee, composed of former judges or advocates-general of the Court of Justice and members of national supreme courts, which assesses the suitability of candidates proposed by the States to serve as judges at the Court of Justice and the General Court of the European Union and as advocates-general at the court. Inspired by this precedent, the Committee of Ministers of the Council of Europe decided that a “panel”, similarly bringing together former judges of the European Court of Human Rights and members of national supreme courts, would give an opinion on the qualification of candidates for the post of judge at the European Court of Human Rights.

The association of national supreme courts with the appointment of European judges is in line with the perspective that makes these courts the main actors in the dialogue of judges. They take part in the major associations which, on a worldwide scale as well as in the European framework, facilitate exchanges through meetings, networks for the dissemination of case law and Internet forums. They maintain between them often very close bilateral links. In Europe they are the natural participants in the regular dialogue with the two European courts. Thus, the European Court of Human Rights brings together every year, for a working seminar, the Presidents of the Constitutional Courts and Supreme Courts of the forty-seven member States of the Council of Europe.

Through the network of judges, by attentive listening and by a crossing of jurisprudence, many delicate questions are solved thanks to conciliatory logics.  For example, one can think of the one which allows to articulate the supremacy of the constitution in the internal order and the primacy of international and European law. In his speech at the opening of the European Court of Human Rights in 2014, Andreas Vosskuhle, then president of the Karlsruhe court, explained that law in Europe was no longer described in terms of the Kelsen pyramid, but was more like a Calder mobile, whose elements, constantly in motion, find their balance in their permanent and reciprocal interaction. This movement is driven by the supreme courts and their role beyond borders.

2.B. Judging Beyond Borders

Listened by their counterparts as well as by international courts, the decisions of constitutional courts and supreme courts have, by the same token, an audience that goes beyond the national framework. Even more so, the solutions they adopt have consequences on major debates and often find strong echoes far beyond their borders.

The role played by the German court in Karlsruhe is particularly characteristic in this respect. A vigilant guardian of fundamental rights and democratic balances guaranteed by the German constitution, it is at the same time committed to the construction of Europe. The balance it draws between national constitutional requirements and the progress of the European edifice gives its jurisprudence a primordial importance for the Union as a whole. In a decision of June 30, 1989, the Karlsruhe court ruled that the ratification of the Lisbon Treaty did not require a revision of the German constitution, but that the federal law should recall the imperatives of democracy, the responsibilities of Parliament and the requirements of respect for fundamental rights. It authorizes the creation of the European Financial Stability Fund ¹⁶ as well as the ratification of the Treaty on Stability, Coordination and Governance in Europe ¹⁷ , while stressing that the Bundestag must retain control over budgetary policy.

When the Karlsruhe court was seized with the question of the repurchase of sovereign debts on the secondary market by the European Central Bank, it asked, for the first time, a preliminary question to the Court of Justice of the European Union ¹⁸ . Enlightened by the Court’s answer ¹⁹ , it judged the mechanism to be in conformity with the German constitutional requirements ²⁰ . However, it goes on to specify that the European Central Bank must justify, through an understandable and precise analysis, the conformity of public debt repurchases with its mandate and the proportionality of its interventions ²¹ . On the occasion of these various decisions, the Karlsruhe court partially ruled in its courtroom on the future of European construction. Beyond German constitutional law, the decisions it handed down have had an echo and significance throughout Europe, which have enabled it to take steps and overcome crises, without neglecting the constitutional characteristics of one of its principal member states.

Shared principles emerge from the combined jurisprudence of constitutional and supreme courts. The two European courts provide a form of synthesis, to which other international jurisdictions contribute, notably the International Court of Justice and the International Criminal Court. Procedural standards are defined to ensure an effective remedy before an independent and impartial judge and to ensure a fair trial. Common concepts are affirmed: proportionality, legal certainty, legitimate confidence, subsidiarity. In addition, values such as non-discrimination, human dignity, the rule of law and the requirements of democracy are being reaffirmed.

Difficulties and tensions are inevitably present. Within the European Union, judicial reforms in Poland and Hungary have raised concerns about the independence of the judiciary.

Some decisions are carrying with them threats to liberties, such as the ruling of 22 October 2020 by which the Polish Constitutional Court reduced the right to voluntary interruption of pregnancy to almost nothing.

Within the Council of Europe, Turkey’s development after the failed coup d’état in the summer of 2016 undermines essential freedoms, with arbitrary arrests and a deliberate disregard for the independence of judges. The questioning by illiberal regimes of the very legitimacy of judges’ interventions, like the attempts to regain control of constitutional courts and supreme courts, are also, as a tribute of vice to virtue, a reflection of the power of judges in the globalized world. Excesses are fortunately tempered by the interventions of the Court of Justice with regard to the member states of the Union and of the European Court of Human Rights with regard to the countries of the Council of Europe. For example, the Polish government reviewed the reform of its Supreme Court after the Court of Justice, accepting an infringement action brought by the Commission, found that it violated the fundamental rights guaranteed by the Union ²² .

Beyond these difficulties, a common fund is constituted from the decisions of constitutional courts and national supreme courts. For the international courts and, in particular, in Europe, for the two courts of Luxembourg and Strasbourg, it constitutes a base from which they build a jurisprudence that synthesizes the elements brought by each national law. The Court of Justice of the European Union thus derives general principles from the constitutional traditions common to the member states. The European Court of Human Rights, for its part, seeks to determine whether a consensus has been reached among the different States of the Council of Europe, to which it recognizes a margin of appreciation that is all the wider the weaker the consensus is.

Through the exchanges between them, through the common construction of a corpus of jurisprudence whose scope transcends state borders, the national supreme courts intervene on the whole in a broader horizon and with broader perspectives. They have become essential actors in a wider legal universe and contribute to giving the global law necessary for its regulation its full foundation. Far from reducing their role, the globalization of law gives them new missions, reinforces their independence, increases their authority and strengthens their vitality.

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2. Atkins v. Virginia, 536 U.S. 304 (2002) and Roper v. Simmons, 543 U.S. 551 (2005).
3. Roe v. Wade, 410 U.S. 113 (1973).
4. Rasul v. Bush, 542 U.S. 466 (2004).
5. United States v. Windsor, 570 U.S. 744 (2013)and Obergefell v. Hodges, 576 U.S (2015).
6. UK Supreme Court, Miller, 24 January 2017.
7. UK Supreme Court, 24 September 2019.
8. CE, 11 December 2015, Cédric Domenjoud et autres.
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10. CE, 13 June 2020, Ligue des droits de l’homme et autres.
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14. CE, 27 Novembre 2020, Association des avocats pénalistes.
15. CE, 23 March 2018, Syndicat Force ouvrière magistrats et autres, CE, 11 December 2015, Cédric Domenjoud et autres.
16. Court of Karlsruhe, 7 September 2011.
17. Court of Karlsruhe, 12 September 2012.
18. Court of Karlsruhe, 14 January 2014.
19. CJEU, 16 June 2015, Gauleiter.
20. Court of Karlsruhe, 21 June 2016.
21. Court of Karlsruhe, 5 May 2020.
22. CJEU, 17 December 2018.