Not so long ago the overwhelming majority of courts in democratic countries shared a reluctance to refer to foreign and international law. Their policy was to avoid any application of foreign sources of law that would clash with the position of their domestic governments. Many jurists find recourse to foreign and international law inappropriate. But even the supporters of reference to external sources of law hold this unexplored assumption that reliance on foreign and international law inevitably comes into tension with the value of national sovereignty. Hence, the scholarly debate is framed along the lines of the well-known broader debate on “the countermajoritarian difficulty.” This article questions this assumption of tension. It argues that for courts in most democratic countries—even if not for U.S. courts at present—referring to foreign and international law has become an effective instrument for empoweringthe domestic democratic processes by shielding them from external economic, political, and even legal pressures. Citing international law therefore actually bolsters domestic democratic processes and reclaims national sovereignty from the diverse forces of globalization. Stated differently, most national courts, seeking to maintain the vitality of their national political institutions and to safeguard their own domestic status vis-a-vis the political branches, cannot afford to ignore foreign and international law.

Critiques of decision making in international organizations are often framed in terms of the democratic deficit. Leveled against the United Nations Security Council, the charge has become more pointed in light of recent quasi-legislative and quasi-judicial acts—most notably the adoption of Resolutions 1373 and 1540 on the financing of terrorism and the spread of weapons of mass destruction, respectively, and the Resolution 1267 sanctions regime, which targets individuals suspected of involvement in terrorism. With the first two resolutions, the Security Council imposed general obligations on all states for an indefinite period; with the third, it set up a sanctions committee that has courtlike powers to identify and freeze the assets of individuals, groups, and corporations. Despite broad sympathy among the UN membership for collective counterterrorist action in the aftermath of the attacks of September 11, 2001, a degree of skepticism accompanied these initiatives from the start and grew with the diplomatic debacle surrounding the war in Iraq. Some critics asked whether an “imperial” Security Council had become an instrument for the imposition of “hegemonic international law.” The Council has moved to address these concerns, but they remain serious enough that the regimes established under Resolutions 1267, 1373, and 1540 are at risk of collapsing.