On Einsteinian waves, international law and national hats: afterword to the foreword by Doreen Lustig and J. H. H. Weiler

Abstract

This article offers a critical reading of Lustig and Weiler's Foreword article by focusing on the emphasis placed by the authors on the phenomenon of international judicial review and the hierarchical reception of international law by domestic judges as the core features of a second wave of judicial review, interacting with judicial review under domestic laws, characterized as the first wave of judicial review. It first asks whether we can abstract a general wave of international judicial review from the broad range of judicial decisions of international courts and tribunals and proposes that there may be much less international judicial review in the international system than proposed by the authors to make a wave. Second, it holds that where we have international judicial review, such review does not necessarily promote the idea of the hierarchy of international law over domestic law. There are different ways of being an internationalist and a hierarchical positing of international law has always been one option of many. In conclusion, I hold that these two critical inquiries into the second wave have repercussions on the reactionary framing of the third wave of judicial review. Reactionaries, and there are plenty, may be taking issue not only with international law as hierarchical law but also with the very idea of international law or even some basic tenets of public law.