International Legal Norms in National Constitutional Interpretation

Essay from the year 2012 in the subject Politics - International Politics - Topic: International Organisations, grade: 1, University of Massachusetts - Amherst, language: English, abstract: Should international law be used for domestic court decisions? The current legal advisor ofthe US Secretary of State, Harold Hongju Koh, definitely thinks ...

Essay from the year 2012 in the subject Politics - International Politics - Topic: International Organisations, grade: 1, University of Massachusetts - Amherst, language: English, abstract: Should international law be used for domestic court decisions? The current legal advisor ofthe US Secretary of State, Harold Hongju Koh, definitely thinks so. In his 2004 articleInternational 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 courtsof justice of appropriate jurisdiction, as often as questions of right depending upon it are dulypresented for their determination.”1 Interestingly enough, this is not quoted from a present daySupreme Court perspective. The statement was made in 1900, a long time before theemergence of international law as we know it today. Koh starts out from this perspective toargue that what was phrased back then as a, “decent respect for the opinions of humanmankind”, led to an early inclusion of international law and to overlapping borders inbetween the use of international and domestic law while interpreting the constitution. Sincewe start from this early point in the history of international law, we have to keep in mind, thatwe are not only discussing the incorporation or consideration of international law in forms oftreaties or other multilateral agreements, but that the term in its early usage includes foreignlaw and its own interpretations of certain judicial questions as well. Koh continues to presenttwo different legal approaches to the question, the “nationalist” and the “transnationalistjurisprudence” (Koh 52). Roger P. Alford, who was categorized by Koh as a nationalistjurisprudent, terms these two different approaches as “international countermajoritarian” and“international majoritarian”. Termed differently, their cores basically express the samebeliefs. On the one hand, the opinion is that international law is an important part of thevalues and opinions of the global society and therefore should be regarded as a useful tool inthe process of coming to constitutional interpretation decisions. [...]