International Legal Norms in National Constitutional Interpretation

Resumen o Introducción

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.”1 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”, 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. [...]