[Note: This is part I of a blog series on judicial globalization, in addition to the introduction]
The UN General Assembly defines globalization as a “complex process of structural transformation, with numerous interdisciplinary aspects, which has an impact on the enjoyment of civil, political, economic and cultural rights, including the right to development.”[1] It further considers globalization to be “not merely an economic process, but that it also has social, political, environmental, cultural and legal dimensions, which have an impact on the full enjoyment of all human rights.”[2] According to Viljoen, “international human rights law constitutes the collective responsibility of humanity’s conscience and captures a shared vision for a humane world.”[3] In the context of increasing globalization, international human rights law is becoming a part of international cooperation and collaboration.
Globalization further applies to and affects the law. This is seen through the transcending of legal ideas across national borders encompassed in judicial globalization. The concept of judicial globalization has generated considerable interest among legal academics and judges. Anne-Marie Slaughter, the leading proponent of judicial globalization, defines it as a “diverse and messy process of judicial interaction across, above and below borders, exchanging ideas and cooperating in cases involving national as much as international law”.[4] Slaughter explains the process to include all activities:[5]
from the most passive form of cross-fertilization to the most active cooperation in dispute resolution, requires recognition of participation in a common judicial enterprise, independent of the content and constraints of specific national and international legal systems. It requires that judges see one another not only as servants or even representatives of a particular government or polity, but as fellow professionals in a profession that transcends national borders. This recognition is the core of judicial globalization, and judges, like the litigants and lawyers before them, are coming to understand that they inhabit a wider world.
Slaughter’s description of the process is apt. On the issue of cross-fertilization, which is mainly done through the use of comparative law by domestic courts, I disagree with her assertion that it is the most passive form of judicial globalization. She, herself, has noted that “increasing cross-fertilization of ideas and precedents among constitutional judges around the world is gradually giving rise to a visible international consensus on various issues—a consensus that, in turn, carries compelling weight.”[6] Cross-fertilization is not a new phenomenon. However, the practice has expanded due to the formation of new democracies and associated constitutional courts.[7] Justice La Forest of the Canadian Supreme Court representing the mindset of the global judge shared his enthusiasm:[8]
Nevertheless, the result of the developments I have described ― and there are others ― is that in the field of human rights, and of other laws impinging on the individual, our courts are assisting in developing general and coherent principles that apply in very significant portions of the globe. These principles are applied consistently, with an international vision, and on the basis of international experience. Thus, our courts ― and many other national courts ― are truly becoming international courts in many areas involving the rule of law. They will become all the more so as they continue to rely on and benefit from one another’s experience. Consequently, it is important that, in dealing with interstate issues, national courts fully perceive their role in the international order and national judges adopt an international perspective.
This clearly shows that international human rights law has evolved beyond the national level to three tiers: sub-regional, regional, and global levels. However, countries continue to bear the primary responsibility for human rights. Greater internationalization in an increasingly globalized world makes the law of other states more relevant. International sources can thus serve as persuasive authority in aiding domestic decisions on human rights issues. In the same vein, Aharon Barak, President of the Supreme Court of Israel on the importance of comparative law stated:[9]
I have found comparative law to be of great assistance in realizing my role as a supreme court judge. The case law of the supreme courts of the United States, Australia, and Canada, of United Kingdom courts, and of the German Constitutional Court have helped me significantly in finding the right path to follow. Indeed, comparing oneself to others allows for greater self-knowledge.… Examining a foreign solution may help a judge choose the best local solution. This usefulness applies both to the development of the common law and to the interpretation of legal texts.
Barak’s approach connotes a broader vision focused on the role of judges, which may be a more attractive approach for many judges.[10] On the other hand, Chief Justice McLachlin of the Canadian Supreme Court noted that “[in]the Canadian experience ― one that has, from the beginning, accepted foreign law as capable of providing useful insights and perspectives. Foreign law is used selectively, where it is relevant to and useful in resolving dispute.”[11] The Canadian Justice reflects a sentiment that some U.S judges have expressed as well. This is through a very utilitarian approach to using foreign cases in which foreign law serves as an inspiration and is used only when it is helpful.[12]
However, in recent times, both the South African and the Canadian Constitutional Courts have been highly influential, apparently more so in recent decades than the U.S. Supreme Court and other older and more established constitutional courts.[13] This rising prominence of these other courts and decline of American influence might point to the opposition of the American courts to the use of foreign sources, which is grounded on exceptionalism and originalism, or as succinctly put by Justice Ginsburg “you will not be listened to if you don’t listen to others”[14] In defense of the Supreme Court’s use of foreign and international law sources in constitutional adjudication, during a speech she stated:[15]
On judicial review for constitutionality, my own view is simply this: If U.S. experience and decisions may be instructive to systems that have more recently instituted or invigorated judicial review for constitutionality, so too can we learn from others now engaged in measuring ordinary laws and executive actions against fundamental instruments of government and charters securing basic rights. . . . The U.S. judicial system will be the poorer, I have urged, if we do not both share our experience with, and learn from, legal systems with values and a commitment to democracy similar to our own.
There have been some decisions in the past that referred to international sources and subsequent opposition. An example can be seen in the case of Atkins v. Virginia,[16] which dealt with the issue of whether the execution of mentally retarded offenders was unconstitutional. Justice Stephens in writing for the majority noted the international communities’ disapproval in the footnotes. In return, both Chief Justice Rehnquist and Justice Scalia dissented and stated that:[17]
[s]eldom has an opinion of this Court rested so obviously upon nothing but the personal views of its members. … The views of professional and religious organizations and the results of opinion polls are irrelevant. Equally irrelevant are the practices of the “world community,” whose notions of justice are (thankfully) not always those of our people. We must never forget that it is the Constitution for the United States of America that we are expounding. … [W]here there is not first a settled consensus among our own people, the views of other nations, however enlightened the Justices of this Court may think them to be, cannot be imposed upon Americans through the Constitution.
In Lawrence v. Texas,[18] the majority relied on international sources to overturn a Texas statute that criminalized sodomy. In the case of Roper v. Simmons,[19] the majority drew on international criticism of the death penalty for juveniles to find that it should be prohibited in the United States as cruel and unusual punishment under the Eighth Amendment. Justice Kennedy, writing for the majority, embarked on a wide-ranging review of the abolition of the juvenile death penalty by nations that “share our Anglo-American heritage”, and by “leading members of the Western European community”, and referred as well to multi-lateral conventions of the UN and others.[20] He observed that the United States was the only country in the world that continued to give official sanctions to the juvenile death penalty and acknowledged the “overwhelming weight of international opinion” against it.[21] He concluded that “[i]t does not lessen our fidelity to the Constitution or our pride in its origins to acknowledge that the express affirmation of certain fundamental rights by other nations and peoples simply underscores the centrality of those same rights within our own heritage of freedom.”[22]
Justice Scalia’s dissent begins by describing the majority opinion as “a mockery” of the framers’ intentions, and a “legislative judgment” in which the majority has “look[ed] over the heads of the crowd and pick[ed] out its friends”.[23] In his view, the premise that American law should conform to the laws of the rest of the world “ought to be rejected out of hand”.[24] Stating that [t]o invoke alien law when it agrees with one’s own thinking, and ignore it otherwise, is not reasoned decisionmaking, but sophistry.”[25] He adds:[26]
To begin with, I do not believe that approval by “other nations and peoples” should buttress our commitment to American principles any more than (what should logically follow) disapproval by “other nations and peoples” should weaken that commitment. More importantly, however, the Court’s statement flatly misdescribes what is going on here. Foreign sources are cited today, not to underscore our “fidelity” to the Constitution, our “pride in its origins,” and “our own [American] heritage.” To the contrary, they are cited to set aside the centuries-old American practice―a practice still engaged in by a large majority of the relevant States―of letting a jury of 12 citizens decide whether, in the particular case, youth should be the basis for withholding the death penalty. What these foreign sources “affirm,” rather than repudiate, is the Justices’ own notion of how the world ought to be, and their diktat that it shall be so henceforth in America. The Court’s parting attempt to downplay the significance of its extensive discussion of foreign law is unconvincing. “Acknowledgment” of foreign approval has no place in the legal opinion of this Court unless it is part of the basis for the Court’s judgment―which is surely what it parades as today.
Justice Scalia’s view feeds into the overall criticism of the use of international law as cherry-picking. He sees the citation of foreign sources as picking out ones’ friends by looking over the heads of the crowd. The use of foreign sources is seen as opportunistic and the arguments highly simplistic and selective.
The approach of a particular country’s accounts to international and foreign law will be characterized by the country’s attitude to and reception, which differ across countries. The relevance of international and foreign law is based on the place and role accorded to it by the country’s constitution. For instance, in contrast to courts in the United States, other constitutional courts demonstrate a much more positive attitude toward foreign sources such as the Constitutional Court of South Africa, which continues to borrow from other jurisprudence around the world. It must be noted, however, that many American judges and justices do participate with respect to judicial dialogue: both to train others and to educate themselves. Slaughter acknowledges that national and international judges are increasingly networking and awareness of the role they play.[27] All this results in “[a] growing sense of participation in a common enterprise, backed up by the growing opportunities for face-to-face meeting among judges.”[28] where “judicial networks” are forged. Thus, a global community of courts is created due to increased communication between them.[29] Slaughter further noted that:[30]
[W]hereas a presumption of a world of separate sovereigns mandates courtesy and periodic deference between them, the presumption of an integrated system [where judicial dialogue is commonplace] takes mutual respect for granted and focuses instead on how well that system works. It is a shift that is likely to result in more dialogue but less deference.
This process which is more interactive provides for an opening to foreign materials as persuasive aid. In April 2016, five judges of the Supreme Court of Canada traveled to Washington DC, met top U.S. judges at the Canadian Embassy, and sat in on a United States Supreme Court hearing. Justice McLachlin who was on the trip stated that “Canadian jurists travel not just as a way to convey the Canadian way of doing things, or to compare administrative notes, but also to get a deeper understanding of a problem that sometimes aids in the development of Canadian law.”[31]
In addition, there are numerous opportunities for international judicial education and exchanges. Slaughter writes “a flood of foundation and government funding for judicial seminars, training programs, and educational materials under the banner of ‘rule of law’ programs has significantly expanded the opportunities for cross-fertilization.”[32] For instance, the Federal Judicial Center, the research and education agency of the federal judicial system provides information about federal courts to officials of foreign judicial systems and to acquire information about foreign judicial systems that will help the Center perform its other missions. Other organizations such as the International Organization for Judicial Training (IOJT), and the International Association of Women Judges (IAWJ) regularly hold conferences that provide opportunities for judges to meet colleagues from other nations. There are also a variety of exchange programs with foreign countries in the U.S such as the Department of State International Visitor’s Leadership Program (IVLP).
In conclusion, it is worth noting that courts are called to apply global and regional human rights norms and standards. Invariably, these courts decide these cases on global rules. On the other hand, courts can also use foreign case law as a precedent or basis for their legal reasoning. As illustrated above, there are two approaches to judicial globalization: a defensive attitude of the domestic legal system, and acceptance of foreign law. In essence, there is a general agreement that the idea of globalization includes judicial globalization.
HOW TO CONFRONT THE CHARGE OF CHERRY-PICKING IN USING INTERNATIONAL LAW?
HOW TO AVOID MISINTERPRETATION OF FOREIGN CASE LAW?
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[1] UN Res No. 163/176, ‘Globalization and its impact on the full enjoyment of all human rights’ March 20, 2009.
[2] Id.
[3] FRANS VILJOEN, INTERNATIONAL HUMAN RIGHTS LAW 99 (2013).
[4] Anne-Marie Slaughter, Judicial Globalization, 40 Va. J. Int’l L. 1103, 1104 (1999).
[5] Id, at 1124 (emphasis added).
[6] Anne-Marie Slaughter, A Global Community of Courts, 44 Harv. Int’l L.J. 191, 202 (2003).
[7] Id at 195–196.
[8] The Hon. GV. La Forest, The Expanding Role of the Supreme Court of Canada in International Law Issues, 34 Can. Y.B. Int’l L. 89, 100-101 (1996).
[9] Barak Aharon, Foreword: A Judge on Judging: The Role of a Supreme Court in a Democracy, 116 Harvard Law Review. 19, 110-111(2002).
[10] See, e.g., Barak Aharon, Response to The Judge as Comparatist: Comparison in Public Law, 80 Tul. L. Rev. 195 (2005).
[11] Chief Justice Beverley McLachlin, Keynote Address: The Use of Foreign Law—A Comparative View of Canada and the United States, 104 Proceedings of the Annual Meeting of the American Society of International Law 491, 492 (2010).
[12] See e.g., Lorne Neudorf, Taking Comparative Law Seriously: Rethinking the Supreme Court of Canada’s Modern Approach to Statutory Interpretation, Statute Law Rev. 1, 6 (2017).
[13] Slaughter, supra note 8 at 198. (Slaughter has also argued that if American judges don’t find their place within the larger community, they risk been left behind). See also, Slaughter, Courting the World, Foreign Policy, 78 (2004).
[14] Adam Liptak, “Ginsburg Shares Views on Influence of Foreign Law on Her Court, and Vice Versa” The New York Times (11 April 2009), available at http://www.nytimes.com/2009/04/12/us/12ginsburg.html. (On why an increasingly globalized American judiciary will be a welcome development). See also, Ken I. Kersch, The New Legal Transnationalism, the Globalized Judiciary, and the Rule of Law, 4 Wash. U. Glob. Stud. L. Rev. 345 (2005).
[15] Ruth Bader Ginsuburg “A decent Respect to the Opinions of [Human]kind”: The Value of a Comparative Perspective in Constitutional Adjudication International Academy of Comparative Law American University (July 30, 2010), available at https://www.supremecourt.gov/publicinfo/speeches/viewspeech/sp_08-02-10. See also Ruth B. Ginsburg, Looking Beyond Our Borders: The Value of a Comparative Perspective in Constitutional Adjudication 22 Yale Law & Policy Review. 2, 335 (2004); Carl Baudenbacher, Judicial Globalization: New Developments or Old Wine in New Bottles?, 38 Tex. Int’l L.J. 505 (2003).
[16] Atkins v. Virginia, 536 U.S. 304 (2002) [Atkins], at 12.
[17] Id, at 111-112.
[18] Lawrence v. Texas, 539 U.S. 558 (2003).
[19] Roper v. Simmons, 543 U.S. 551 (2004) [Roper]
[20] Opinion of the Court, at 7, 22-23.
[21] Id, at 24.
[22] Id, at 24-25.
[23] Scalia, J, dissenting, at 1-3.
[24] Id, at 18.
[25] Id, at 21.
[26] Id, at 22-23.
[27] See, e.g., Anne-Marie Slaughter, The Real New World Order, 76 Foreign Affairs 5. 183, 186 (1997).
[28] Slaughter, supra note at 6, 1117.
[29] See Craig Scott & Philip Alston, Adjudicating Constitutional Priorities in a Transnational Context: A Comment on Soobramoney’s Legacy and Grootboom’s Promise 15 SAJHR 206, 212–13 (2000).
[30] Slaughter, supra note 8 at 204-205.
[31] Tonda Maccharles “Canada’s Supreme Court justices travel to exchange ideas, discuss legal issues with international judges” (February 18 2017) available at https://www.thestar.com/news/canada/2017/02/18/canadas-supreme-court-justices-travel-to-exchange-ideas-discuss-legal-issues-with-international-judges.html.
[32] Slaughter, supra note at 6, 1116–19.
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