International law, in general, and international human rights law, in particular, have experienced a battering in recent years. Spurred in part by national reactions to the “new terrorism,” politicians and legislators—as well as judges, practitioners, and intellectuals worldwide and along the ideological spectrum—have expressed reservations about the role and function of international law in domestic affairs. Reactions have ranged from sharp skepticism about the authority and utility of international law to conditions and caution about how it should be given effect within the domestic system.
Concerns regarding the role of international law are evident throughout Europe. In Germany, the federal constitutional court has in different ways positioned itself as a bulwark between the national legal system and the two European legal orders of which the court is a part—the European Union (“EU”) and the European Court of Human Rights (“ECHR”) system. In Denmark, the Council of Europe’s Human Rights Commissioner’s 2004 censure of Danish immigration policy on family reunification sparked critical political and media debate on the relevance and authority of international human rights law. And in the United Kingdom, which sought to derogate from the relevant provisions of the European Convention on Human Rights, the Home Secretary responded sharply to the United Nations Special Rapporteur on Torture’s criticisms by castigating the United Nations and its alleged focus on the “human rights of terrorists.” On the other side of the Atlantic, the debate about the relevance of “foreign law” to constitutional adjudication has been equally vigorous. A number of liberal academic scholars have joined conservative intellectuals in declaring international law fundamentally anti-democratic.
Using the European experience as a basis for analysis, this Article challenges the prevailing skepticism by arguing for an understanding of international human rights law and international adjudication as a practice of “justification.” Under this view, international law obligates states merely to justify those local practices that deviate from a shared, publicly evolving, crosscommunity set of standards. This obligation may be triggered in part by individual claims. The theory conceives of the relationship between national constitutional law and international adjudication, moreover, outside the context of a strict monism-dualism dichotomy. According to that dichotomy, international law is either an authoritative external body of law which directly penetrates the national legal order, or a corpus of foreign law which must be filtered first through the prism of national constitutional law. This Article argues instead that international adjudication should be conceived of as having a persuasive function and not an overriding one. International and constitutional norms should be understood as contextually competing rule-of-law values rather than as conflicting legal sources vying against one another.
Part I sets forth the theoretical framework of the argument for a “justification view.” Part II applies this framework to EU law, examining the relationship that has developed between both European Court of Justice (“ECJ”) and European Human Rights Convention (“EHRC”) case law on the one hand and national law on the other.
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