International law in domestic courts in an era of populism

Abstract

This article examines the manner in which the rise of populism affects the use of international law by domestic courts. It argues that populism may 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, enhancing democracy.

Human Rights Litigation in Africa Under Attack

“…Furthermore, Tanzania's withdrawal can also be linked to the rise of populism in the country and the subsequent democratic backsliding (Brandes, 2018;Faix and Jamali, 2022). 25 Since the regime change in 2015, Tanzania has been accused of taking a path towards authoritarianism, resulting in erosion of freedoms and crackdowns on human rights activists, free media, and political opponents.…”