International Legal Norms in National Constitutional Interpretation

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?

Essai , 2012 , 4 Pages , Note: 1

Politique - Sujet: Organisations internationales

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. [...]

Inhaltsverzeichnis (Table of Contents)

• International Legal Norms in National Constitutional Interpretation
• Transnationalists and Nationalists
• The Use of International Law in the US Supreme Court
• Koh's Perspective on International Law and National Court Decisions
• Alford's Perspective on International Law and National Court Decisions
• The Distinctiveness of States' Legal Systems
• The Incorporation of International Law into Domestic Law: The Case of Japan

Zielsetzung und Themenschwerpunkte (Objectives and Key Themes)

This essay examines the argument that the use of foreign interpretations of international law in domestic court decisions undermines the distinctiveness of national legal and constitutional systems. The author analyzes the opposing viewpoints of Harold Hongju Koh and Roger P. Alford, arguing for Koh's position that such use is necessary and appropriate in today's globalized world. The main themes explored in the essay include:

• The role of international law in national constitutional interpretation.
• The tension between national sovereignty and international legal norms.
• The impact of globalization on national legal systems.
• The potential benefits and drawbacks of incorporating foreign legal interpretations into domestic decision-making.
• The example of Japan as a case study for the successful incorporation of international human rights law into domestic legal frameworks.

Zusammenfassung der Kapitel (Chapter Summaries)

The essay begins by outlining the debate surrounding the use of foreign interpretations of international law in domestic court decisions. It then presents the contrasting views of Harold Hongju Koh and Roger P. Alford, who represent the "transnationalist" and "nationalist" perspectives, respectively.

Koh argues that international law is an essential part of our legal system and should be considered in constitutional interpretation, drawing on the US Supreme Court's historical recognition of international law's relevance. Alford, on the other hand, expresses concern that relying on foreign interpretations undermines national sovereignty and could lead to inconsistent or arbitrary decisions.

The essay further explores the argument that the increasing interconnectedness of states in a globalized world necessitates a transnational approach to law, drawing on examples of shared experiences and the benefits of learning from other jurisdictions. The essay then addresses Alford's concerns about the potential for haphazard or selective use of foreign legal sources, arguing that such concerns are mitigated by established legal practices, such as the reliance on precedents in common law systems.

The essay concludes by examining the case of Japan as a successful example of incorporating international human rights law into domestic legal frameworks. This case study demonstrates the potential for positive outcomes when international legal norms are incorporated into national legal systems.

Schlüsselwörter (Keywords)

This essay focuses on the interplay between international law and national constitutional interpretation, exploring the impact of globalization on legal systems, the use of foreign legal sources in domestic decision-making, and the potential benefits and challenges of incorporating international legal norms into national frameworks. Key concepts include transnational jurisprudence, national sovereignty, human rights law, and the case study of Japan's human rights development.

• Université: University of Massachusetts - Amherst
• Note: 1
• Auteur: Timo Dersch (Auteur)
• Année de publication: 2012
• Pages: 4
• N° de catalogue: V206096
• ISBN (ebook): 9783656351771
• Langue: anglais
• mots-clé: international, legal, norms, national, constitutional, interpretation, does