International and Foreign Law in Domestic Constitutional Law

2021 ◽  
pp. 373-392
Author(s):  
Muna Ndulo
Keyword(s):  
United States ◽  
South Africa ◽  
International Law ◽  
Constitutional Law ◽  
World Wide ◽  
The United States ◽  
Post Conflict ◽  
Foreign Law ◽  
Domestic Courts

This chapter illustrates the role of international and foreign law in domestic constitutional law. Through the case analysis of South Africa (a post conflict state) and the United States (often seen as a country that is not too friendly to international and foreign legal systems), it discusses the role of international and foreign law in reconciling the regional development of the rule of law in a country, by working closely together with domestic constitutional law. The domestic courts both in the United States and South Africa, whenever they deem it appropriate, do consider international and foreign law in the resolution of disputes before them. The conditions under which each jurisdiction may resort to foreign or international law, as well as the criteria used for taking them into consideration, vary. However, most importantly, this practice should be encouraged as it promotes the uniform interpretation of international law and the progressive advancement of norms world-wide, which are aspects that are especially important in the field of human rights.

The Role of Domestic Courts in Effectuating International Law

1990 ◽  
Vol 3 (3) ◽  
pp. 77-85 ◽  
Author(s):  
Henry G. Schermers
Keyword(s):  
United States ◽  
Foreign Policy ◽  
International Law ◽  
The United States ◽  
Policy Decisions ◽  
Public Attention ◽  
Domestic Courts

In his article on the implementation of international law by the domestic courts in the United States, Richard Falk focuses on the possible role of domestic courts with respect to the acts of foreign policy which may be contrary to international law. In general that role is limited. This is the same in Europe. Falk mentions efforts of individuals, to change national foreign policy by means such as the Russell Tribunal, boycotts of products, blocking of tracks and the occupation of buildings. Such activities also happen in Europe but rather with the intention to attract public attention than with the purpose to litigate in court. In Europe it is generally accepted that courts should not take policy decisions of that kind.

The Role of International Law in United States Death Penalty Cases

2002 ◽  
Vol 15 (2) ◽  
pp. 367-387
Author(s):  
Sandra Babcock
Keyword(s):  
United States ◽  
International Law ◽  
Death Penalty ◽  
The United States ◽  
Vienna Convention ◽  
Foreign Nationals ◽  
Capital Cases ◽  
Domestic Courts ◽  
Foreign Governments

The United States has repeatedly failed to notify detained foreign nationals of their rights to consular notification and access under Article 36 of the Vienna Convention on Consular Relations. In capital cases, US non-compliance with this ratified Treaty has led to litigation by foreign governments and individual lawyers in domestic courts and international tribunals. While these efforts have had mixed results in individual cases, litigation by Mexico, Germany and other actors has led to increased compliance with Article 36, and a growing recognition of the significance of US treaty obligations.

WHAT ARE CONSTITUTIONS, AND WHAT SHOULD (AND CAN) THEY DO?

2010 ◽  
Vol 28 (1) ◽  
pp. 1-24 ◽  
Author(s):  
Larry Alexander
Keyword(s):  
United States ◽  
Judicial Review ◽  
Constitutional Law ◽  
The United States ◽  
United States Constitution ◽  
Moral Rights ◽  
Constitutional Change ◽  
Principal Function ◽  
Fundamental Law

AbstractA constitution is, as Article VI of the United States Constitution declares, the fundamental law of the land, supreme as a legal matter over any other nonconstitutional law. But that almost banal statement raises a number of theoretically vexed issues. What is law? How is constitutional law to be distinguished from nonconstitutional law? How do morality and moral rights fit into the picture? And what are the implications of the answers to these questions for such questions as how and by whom should constitutions be interpreted? These are the issues that I shall address.Alexander proceeds as follows: In section I he takes up law's principal function of settling controversies over what we are morally obligated to do. In section II he then relate law's settlement function to the role of constitutional law. In particular, he discusses how constitutional law is distinguished from ordinary law, and he also discusses the role of constitutions in establishing basic governmental structures and enforcing certain moral rights. In section III he addresses the topic of constitutional interpretation, and in section IV the topic of judicial review. Finally, in section V, he discusses constitutional change, both change that occurs through a constitution's own rules for amendments and change that is the product of constitutional misinterpretations and revolutions.

Civil Suits

2020 ◽  
pp. 315-339
Author(s):  
Beth Van Schaack
Keyword(s):  
United States ◽  
International Law ◽  
Criminal Liability ◽  
The United States ◽  
Public Authorities ◽  
Sovereign State ◽  
Domestic Courts ◽  
The Matrix ◽  
The Icj ◽  
Convention Against Torture

Rounding out the matrix of accountability, chapter 8 presents several nonpenal options to bring justice to Syria, including civil suits in domestic courts against responsible individuals and entities and options for exercising jurisdiction over the sovereign state of Syria. Because there is no notion of state criminality under international law, only civil claims seeking money damages can be advanced against sovereign states. Jurisdiction over Syria exists before the International Court of Justice (ICJ) under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; however, so far no state has been willing to take Syria to task before the ICJ. And so, victims must bear this burden. In this regard, some tort law options exist in domestic courts, especially in the United States with its suite of statutes giving its domestic courts jurisdiction over certain international law violations in certain circumstances. This chapter features a groundbreaking suit against Syria under the United States’ Foreign Sovereign Immunities Act, which resulted in a $300 million judgment for the surviving family members of Marie Colvin, the intrepid war correspondent assassinated by the Syrian regime. The chapter observes that although civil remedies are no substitute for vigorous criminal liability, these suits do extend victims some dignitary benefits that may not accrue with participation in a criminal process, even as a partie civile, including the opportunity to control the litigation process and act where the public authorities may be unable or unwilling to do so.

Applied Comparative Law: Researching Foreign Law in an Imperfect World

2002 ◽  
Vol 30 (2) ◽  
pp. 232-243 ◽  
Author(s):  
David S. Clark
Keyword(s):  
United States ◽  
International Law ◽  
Cultural Context ◽  
English Language ◽  
The United States ◽  
Comparative Approach ◽  
Foreign Law ◽  
The Social ◽  
International Legal System ◽  
Anglo American

I admit that I am an addict, a compulsive user of libraries and especially law libraries. As a comparative lawyer I need to investigate foreign law, which for me is the law of jurisdictions outside the United States. Since I believe the social and cultural context in which law operates is important to its understanding, I must leave the relative comfort of United States libraries and venture abroad to learn about the features of legal systems not adequately described in books. Beyond common law countries, as the IALL 20th Annual Course illustrates, the language of law is something other than English: yet another hill to climb to understand foreign law. For most of you, United States law is foreign law, which is the other side of the same issue. In addition, public international law lawyers could benefit from the comparative approach. This is particularly true for those from the Anglo-American world who rely almost exclusively on English language materials in their research. This narrow perspective undercuts the fundamental premise of universality behind a truly international legal system.

The Juridical Expression of the Sacred Trust of Civilization (1971)

2017 ◽  
Author(s):  
C. H. Alexandrowicz
Keyword(s):  
South Africa ◽  
International Law ◽  
The United States ◽  
Critical Discussion ◽  
Second Phase ◽  
International Court Of Justice ◽  
International Court ◽  
South West Africa ◽  
Mandate System

This chapter examines the principle of the sacred trust of civilization in nineteenth-century international law. The establishment of the principle of the sacred trust of civilization is strictly connected with the transfer by the African communities of their territory, their sovereignty, and their destiny to the European Powers, which, through the relevant transactions, assumed the role of guardians of these communities. The chapter looks at the International Court of Justice’s decision in the second phase of the South West Africa Cases (Ethiopia v. South Africa and Liberia v. South Africa) on 18 July 1966. It also considers participation by the United States in the Berlin Conference of 1884–1885. Such an examination enables a critical discussion of the restrictive view expressed by the International Court of Justice to the effect that the mandate system is the sole juridical expression of the principle.

Introduction

2007 ◽  
Author(s):  
Goldsworthy Jeffrey
Keyword(s):  
United States ◽  
South Africa ◽  
Constitutional Law ◽  
Separation Of Powers ◽  
The United States ◽  
Individual Rights ◽  
Cultural Contexts ◽  
Interpretive Practices ◽  
Apparent Reasons ◽  
Over Time

Much of the controversy surrounding constitutional interpretation concerns two issues. The first is a version of a conundrum that has perplexed lawyers for millennia: should the interpretation of a law he governed mainly by its ‘letter’, or by its ‘spirit’? The second issue is the extent to which the meaning of a constitution can, and should, be determined by the original intentions, purposes, or understandings of its founders. This issue pits so-called ‘non-originalists’ against ‘originalists’. This book explores the constitutions of six countries — Australia, Canada, Germany, India, South Africa, and the United States — and how they have been interpreted by their highest courts. It examines whether the courts' interpretive practices have changed over time, the apparent reasons for any changes, and whether the courts apply the same interpretive principles to different areas of constitutional law, such as federalism, separation of powers, and individual rights. The book then reflects on the institutional, political, social, and cultural contexts that might help to explain differences between the practices of these courts.

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