Title: Globalization of Judgement: Transjudicialism and the Five Faces of International Law in Domestic Courts
Abstract: I. INTRODUCTION Globalization has infiltrated judicial decision making. The rising use of international law in domestic courts across jurisdictions constitutes both symptom and cause of this globalization.1 As Michael IMAGE FORMULA5 Kirby, Justice of the High Court of Australia, recently noted, [o] nce we saw issues and problems through the prism of a village or nation-state, especially if we were lawyers. Now we see the challenges of our time through the world's eye.2 Still,judicial reliance on international law invariably generates controversy. The judges of the Supreme Court of the United States have proven themselves largely resistant to arguments based on international human rights law. Judges in other jurisdictions have also been critical of the trend towards globalization in judgment. Accordingly, judges who invoke international law in national courts seek to alleviate the anxiety of their critics by providing a justification for their reliance on international law. This Article identifies and explores the justifications or rationales offered by national court judges in support of their references to international human rights law. It does not analyze the extent to which judges invoke international law; rather, it examines the reasons offered by judges to explain their references to international law. The focus is on leading decisions rendered by higher courts in the United States and Commonwealth jurisdictions where the international norms do not bind decision-makers because they have not been made part of domestic law through an act of incorporation, the relevant treaty has not been ratified, or the ratifying state has filed a reservation limiting a treaty's domestic effect.3 Analysis of these cases reveals that judges invoke international law for five interdependent yet discrete reasons: (1) concern for the rule of law; (2) desire to promote universal values; (3) reliance on IMAGE FORMULA8 international law to help uncover values inherent within the domestic regime; (4) willingness to invoke the logic of judges in other jurisdictions; and (5) concern to avoid negative assessments from the international community. These rationales are not universal in that they are not cited by all judges all of the time; however, they also are not unique to a particular jurisdiction and can be found in the case law across jurisdictions. An examination of the case law in this manner has value for several reasons. First, no similar transjurisdictional analysis has been undertaken despite the academic interest in the domestic use of international law. The existing scholarship tends to focus on a single jurisdiction rather than bringing a transnational approach to the inquiry. Analysts appear hindered by the doctrinal diversity that marks the use of international law in domestic courts. The emphasis on the rationales or justifications invoked by judges in support of their reliance on international law removes this hindrance; the rationales are not specific to a particular doctrinal context because they are intended to justify the doctrine, and, hence, appeal to logic rather than established legal precedent. Accordingly, an examination of the rationales can point to the common elements used by judges across jurisdictions in their decision-making and identifies the complex and subtle ways in which international and domestic law interact. Such an analysis proves timely for women's rights advocacy because advocates and scholars have increasingly come to regard international law as a source of hope for the women's rights agenda.4 An examination of the rationales invoked by judges in support of their reliance on international law can thus support creative advocacy strategies and ground assessments of whether the international regime can live up to the expectations of scholars and advocates who have high hopes for vindicating women's rights through international law. …
Publication Year: 2002
Publication Date: 2002-01-01
Language: en
Type: article
Access and Citation
Cited By Count: 7
AI Researcher Chatbot
Get quick answers to your questions about the article from our AI researcher chatbot