The Constitutional Function of Contemporary international Tribunals, or Kelsen's Visions Vindicated

In this article the author makes two complementary arguments, one
deceptively simple, the other deceptively esoteric. First, contemporary
international courts and tribunals (most, though not necessarily all) are
increasingly requested, or required (often, though not always), to adjudicate
issues in ways that are tantamount to international constitutional judicial
review of national acts and domestic measures, rather than traditional interstate dispute resolution. This is a point that seems to have so far evaded
most of the contemporary literature on the continually enhanced judicialized
system of international law, and its constitutionalization. Second, in order to
understand the emergence of this current predilection towards constitutional
judicial review at the international level, it is instructive to look back to
Hans Kelsen's post-World War II visionary approach towards the (then)
prospective constitutional role of the international judiciary. This approach
is analogous to (and has its roots in) Kelsen's Weimar-era positions on the
preferred role of courts as constitutional guardians in domestic legal
systems. These arguments are demonstrated through analyses of recent
jurisprudence of the ICJ, the WTO, and the ECtHR.