In fact, such conformity in times of war and national crisis has traditionally been a hallmark of judicial practice. Suffice is to recall the decisions rendered by the highest courts in the United Kingdom and the United States during the two world wars and early Cold War era, in which they deferred to the executive’s discretion, based on the limited authority and institutional capacity of the judiciary to assess and manage the risks of war. And thus, indeed, in the weeks following September 11, the familiar rhetoric of judicial deference was repeated by an alarmed court. The 9/11 attacks in an all-too-predictable way ‘proved’ more clearly than ever the case for judicial silence.
Three years later, the House of Lords turned to the tragic events and came away with a wholly different lesson. The Belmarsh Detainees decision of December 2004, which declared parts of the British Antiterrorism Act to be incompatible with European Human Rights standards, was described by one of the Law Lords as countering ‘the public fear whipped up by the governments of the United States and the United Kingdom since 11 September 2001 and their determination to bend established international law to their will and to undermine its essential structures’. (…) The bold House of Lords decision in 2004 was not the first sign of judicial resistance. This should be credited to the (much criticized) Canadian Supreme Court decision from January 11, 2002. (…) This emerging judicial dialogue has not been confined to the British and Canadian courts. It soon included courts from several other jurisdictions, among them France, Germany, Hong Kong, India, Israel and New Zealand, all in the context of limiting counterterrorism measures. These courts regularly explore the international obligations of their respective states, making references to the texts of treaties on human rights and the laws of armed conflict, as well as to customary international law. The fact that national courts can rely on the same or similar legal norms facilitates their productive dialogue. They also learn from each other’s constitutional law doctrines. They cite each other extensively in this process of interpretation.
Eyal Benvenisti, George W. Downs
(The Emergence of Interjudicial Cooperation among National Courts în Between Fragmentation and Democracy: The Role of National and International Courts, Cambridge University Press, 2017, la pp. 124-5)