Treaties are governed by international law; therefore, the jurisdiction of a tribunal created by or under the authority of a treaty is inherently governed by international law. A striking feature about U.S. federal courts is their authority to review the constitutionality of federal and state laws, and to nullify the legal effect of those laws. As demonstrated later, this feature is a result of the Constitution's legal status as a treaty. Although much has been written about the origins and justifications of final judicial review in U.S. courts, no literature has addressed the origin and justification of judicial review from an international legal perspective. As argued later, the origin and justification of final judicial review authority can be based on the conventional law of nations governing tribunals. Treaties have recognized the competence of their tribunals to effectively nullify laws made by states, nations, and institutions created by constituent treaties respectively on the basis of their incompatibility with a nation's or state's international legal obligations and on the basis of the institution exceeding its authority under its constituent treaty. Although some have argued that the United States is the “home of judicial review,” this chapter will demonstrate that a better understanding of the aetiology and legal justification of judicial review can be located in the law of nations governing tribunal practices.

JUDICIAL REVIEW

The notion of judicial review was not unknown to international law and international tribunal practice at the date of the Constitution's entrance into force in 1788.