International Legal Norms in National Constitutional Interpretation
Question: Does national court use of foreign interpretations of international law as elements in their own reasoning about cases seriously erode the ability to maintain distinctive national legal and constitutional systems?
Should international law be used for domestic court decisions? The current legal advisor of the US Secretary of State, Harold Hongju Koh, definitely thinks so. In his 2004 article International Law as Part of Our Law, he includes a famous Supreme Court quote that, “International Law is part of our law and must be ascertained and administered by the courts of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for their determination.” Interestingly enough, this is not quoted from a present day Supreme Court perspective. The statement was made in 1900, a long time before the emergence of international law as we know it today. Koh starts out from this perspective to argue that what was phrased back then as a, “decent respect for the opinions of human mankind”1, led to an early inclusion of international law and to overlapping borders in between the use of international and domestic law while interpreting the constitution. Since we start from this early point in the history of international law, we have to keep in mind, that we are not only discussing the incorporation or consideration of international law in forms of treaties or other multilateral agreements, but that the term in its early usage includes foreign law and its own interpretations of certain judicial questions as well. Koh continues to present two different legal approaches to the question, the “nationalist” and the “transnationalist jurisprudence” (Koh 52). Roger P. Alford, who was categorized by Koh as a nationalist jurisprudent, terms these two different approaches as “international countermajoritarian” and “international majoritarian”. Termed differently, their cores basically express the same beliefs. On the one hand, the opinion is that international law is an important part of the values and opinions of the global society and therefore should be regarded as a useful tool in the process of coming to constitutional interpretation decisions. On the other hand, the belief is that this acting represents a threat to the correct interpretation of the Constitution and should thereby be handled with the utmost caution.
The following essay shall deal with the arguments of the two scholars and tries in this way to approach the question whether the use of foreign international law interpretations would undermine national legal and constitutional systems in their distinctiveness or not. I will argue for Koh’s belief and observations that it doesn’t, and that it is rather necessary and appropriate nowadays to include foreign interpretations in the legal process. Furthermore, I will try to prove this assumption by referencing the Japanese case of constitutional incorporation of actual international law.
 Cf. Harold Hongjuh Koh, “International Law as Part of our Law,” American Journal of International Law 98:43 (2004).
 Roger P. Alford, Misusing International Sources to Interpret the Constitution, American Journal of International Law 98: 57 (2004).
- Quote paper
- Timo Dersch (Author), 2012, International Legal Norms in National Constitutional Interpretation, Munich, GRIN Verlag, https://www.grin.com/document/206096