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Introduction
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 legislatorsas 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 partthe European Union (EU)
and the European Court of Human Rights (ECHR) system.1 In Denmark,
the Council of Europes Human Rights Commissioners 2004 censure of Danish
immigration policy on family reunication sparked critical political and
media debate on the relevance and authority of international human rights
law.2 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 Tor Grinne de Brca: Professor of Law, European University Institute, and member of the Global Law
Faculty, New York University.
Oliver Gerstenberg: Reader in Law, School of Law, University of Leeds. This Article was written
while the author was a Fellow of the Program in Law and Public Affairs at Princeton University, in 200405.
Thanks are due to Ruti Teitel, who made extremely insightful comments at the presentation of an earlier version of this Article in the LAPA-seminar at Princeton University, and to Joshua Cohen, Stanley
Katz, Frank Michelman, Andrew Moravcsik, Chuck Sabel, Kim Scheppele, and Anne-Marie Slaughter.
The usual disclaimer applies.
1. See, e.g., BverfG, Oct. 14, 2004, docket number 2 BvR 1481/04, at juris online/Rechtsprechung
(nding that appellate court did not sufciently consider the judgment of the European Court of Human
Rights concerning the custody rights of biological father); BverfG, July 18, 2005, docket number BvR
2236/04, at juris online/Rechtsprechung (holding that German law implementing resolution concerning
European arrest warrant violates German Basic Law).
2. See Council of Europe, Office of the Commissioner for Human Rights, Report by Mr. Alvaro GilRobles, Commissioner for Human Rights, on His Visit to Denmark, Doc. No. CommDH(2004)12 (July 8,
2004).
244
tures criticisms by castigating the United Nations and its alleged focus on the
human rights of terrorists.3 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.4
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 justication. 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 ltered rst
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 conicting legal sources vying against one another.
Part I sets forth the theoretical framework of the argument for a justication
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.
I. Dualism and Justication
An argument for a justication theory of international law in the domestic
constitutional context requires an initial examination of the prevailing theoretical approaches. Dualism is one of these approaches and is appealing as a
contemporary legal doctrine in two distinct ways.5 First, it erects a bulwark
3. See Sam Knight, Row Over New Rules for Deporting Hate Preachers, Times Online (London), Aug. 24,
2005, available at http://www.timesonline.co.uk/article/0,,22989-1748672,00.html (last visited Nov. 20,
2005).
4. For some provocative contributions to the debate, see Sanford Levinson, Looking Abroad When Interpreting the Constitution: Some Reections, 39 Tex. Intl L.J. 353 (2004) (criticizing the moral parochialism
of U.S. judicial conservatives); Jed Rubenfeld, Unilateralism and Constitutionalism, 79 N.Y.U. L. Rev. 1971
(2004) (explaining U.S. judicial unilateralism through the judiciarys longstanding commitment to
democratic, rather than international, constitutionalism).
5. The idea of dualism is captured in the following telling quote: The Basic Law is clearly based on
the classic idea that the relationship of public international law and domestic law is a relationship between two different legal spheres and that the nature of this relationship can only be determined from the
viewpoint of domestic law only by domestic law itself. BverfG, Oct. 14, 2004, docket number 2 BvR
1481/04, supra note 1, at para. 34. For a general discussion on dualism (key aspects of which are enumerated in the subsequent text), see generally J. G. Starke, Monism and Dualism in the Theory of International
245
against the overextension of judicial comity. From the dualist perspective, the
ultimate legitimate source of coercive legal norms within a democratic legal
order is the democratic process itself. Accordingly, international norms
including even human rights normsare enforceable domestically only when
and to the extent that the democratic sovereign has explicitly given them
effect by incorporating them through acts of statutory legislation. Dualists
worry that allowing international norms to have an immediate effect on domestic constitutional choicesthat is, unmediated by legislative acts of statutory incorporationwould open the proverbial oodgates, permitting a freewheeling and self-programming judiciary, accountable only to its own professional norms of judicial comity, to usurp domestic legal and political prerogatives. Ports of entry, for international and foreign proto-legal materials
therefore are, as to both existence and scope, wholly contingent upon domestic statutory legislation under the domestic constitution.
The dualist concern with abdication and delegation of sovereignty to the
judiciary may be shallower and more inconclusive than it rst appears, perhaps to the extent of bordering on bad faith. After all, primarily the highly
successful and inuential domestic constitutional courts, such as the German
Bundesverfassungsgericht, are today tending toward, if not actively advocating, dualism. The objection, whether based on considerations of sovereignty or
merely of institutional competence, simply assumes that norms of public international law and their judicial vindications per se clash with democratic commitments. If laws validity depends (as the dualists maintain) on originating
from democratic processes such as enactment by statute (rather than on democratic values or principles), then international law is necessarily anti-democratic: It does not have democratic origins.
Second, and more fundamentally, dualism appeals because of its essentially
skeptical view of the status of moral principle and moral reasoning in international affairs outside the bounded community of the nation-state.6 This
outward-looking skepticism at once is a corollary of and reinforced by a specically contractarian view of democratic legitimacy. According to this view,
the domain of domestic, inward-looking constitutional law takes on an intrinsic moral and epistemological priority over the essentially immature
domain of international law.7
The increasing ethnic and cultural pluralism within nation-states and, a fortiori, sharp ethnic, cultural, ideological, constitutional, and economic diversity
beyond the states (that is, globally), render any assumptions about social convergence in a moral context wildly implausible. Within contemporary internaLaw, 1936 Brit. Y.B. Intl L. 66; Jonathan Turley, Dualistic Values in the Age of International Legisprudence,
44 Hastings L.J. 185 (1993); Curtis A. Bradley & Jack L. Goldsmith, Federal Courts and the Incorporation
of International Law, 111 Harv. L. Rev. 2260 (1998).
6. See Seyla Benhabib, On the Alleged Conict Between Democracy and International Law, 19 Ethics &
Intl Aff. 85, 90 (2005).
7. For examples of the dualism-as-contractualism concept, see Thomas Nagel, The Problem of Global
Justice, 33 Phil. & Pub. Aff. 113 (2005), and Rubenfeld, supra note 4.
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8. Martin Koskenniemi & Pivi Leino, Fragmentation of International Law: Postmodern Anxieties, 15 Leiden J. Intl L. 553, 55667 (2002) (outlining the fragmentation of international law and the consequent problems of ensuring a consistent, hierarchical application of international legal norms).
9. Hersch Lauterpacht, The Grotian Tradition in International Law, 23 Brit. Y.B. Intl L. 1 (1946), reprinted in 2 International Law: Being the Collected Papers of Hersch Lauterpacht 307 (1970)
(arguing that, despite being criticized for its internal contradictions and potential gaps, Grotius De Jure
Belli ac Pacis was the rst comprehensive and systematic treatise on international law).
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of law is that it is the command of the State.10 The rival anti-positivist account, in contrast, denes international law as being constituted by its conformity with reasonreason in relation to law conceived as justice and in relation
to the State conceived as the recognition of the individual human being its
primary and ultimate unit.11
Given these competing views, the question arises as to how possibly to
prescribe human rights norms that (a) are characteristically created through
voluntary commitments in the absence of an overwhelming sovereign power
with the ultimate right of enforcement; that (b) are legally binding upon both
nonstate and state actors when they come into contact even with individuals
who are not members of the actors own polities; and that (c) express an interculturally acceptable standard of human rights while leaving sufcient margins of appreciation for circumstantial and cultural variations? This genesis/
validity paradox is unavoidable in the context of international law and creates,
as a corollary, a tension or conict between two competing accounts of adjudication. The more positivistically inclined accountsteeped in private-law metaphors of delegation, principal-agent relations, and trusteeshipis one of deference to the will of states. The other account is a constitutional one, crystallizing
around the notion of persuasive authority and the idea of constitutional ordering of social spheres in light of contextually colliding open-ended normative
principles.
Whatever the supposed benets of participation in a common global enterprise of judging,12 [j]uxtaposing the constitutional and the international
systems with regard to a right they both protect will, as dualists routinely
fear, have the effect of multipl[ying] the possibilities for competing inuences
on the interpretation of the right.13 The realization of this expectation is
particularly likely in situations where standards differ and where an international body might interpret even the most basic and seemingly uncontroversial human rights in a way that runs counter to settled features of domestic constitutional law. Dualisms inner justication, then, lies in barring a domestic
constitutional order from placing itself, in its entirety, in the hands of an international court, thus ensuring that the domestic order and its adjudicative acquis
are subject only to their own interpretations of basic moral norms that have
been established as legal norms.
The familiar distinction between fundamental rights and the Rawlsian notion of the fair value of those rights provides insight into dualist fears.14
10. Id.
11. Hersch Lauterpacht, International LawThe General Part, in 1 International Law: Being the
Collected Papers of Hersch Lauterpacht 5455 (1970).
12. Anne-Marie Slaughter, Judicial Globalization, 40 Va. J. Intl L. 1103, 1104 (2000).
13. Gerald L. Neuman, The Uses of International Law in Constitutional Interpretation, 98 Am. J. Intl L.
82, 85 (2004); see also Gerald L. Neuman, Human Rights and Constitutional Rights: Harmony and Dissonance,
55 Stan. L. Rev. 1863 (2003) (arguing that the result may be dissonance in the articulation of fundamental values, or unresolvable conict between norms that deny each others validity).
14. On this distinction, compare Frank I. Michelman, Liberties, Fair Values, and Constitutional Method,
in Stone et al., The Bill of Rights in the Modern State 91 (1992), with Frank I. Michelman,
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Reasonable Umbrage: Race and Constitutional Antidiscrimination Law in the United States and South Africa, 117
Harv. L. Rev. 1378 (2004).
15. With regard to the German constitutional, legal, and intellectual context, see Brun-Otto Bryde,
Programmatik und Normativitt der Grundrechte, in Handbuch der Grundrechte Band I Entwicklung und Grundlagen 679 (Detlef Merten & Hans-Jrgen Papier eds.) (Heidelberg 2004).
16. Id. passim.
17. Compare the famous German Lth case, 7 BverfGE 198 (1958) (holding that private law must be
construed to respect fundamental constitutional rights), with the decision by the South-African Constitutional Court in the Grootboom case, South Africa v. Grootboom, 2000 (11) BCLR 1169 (CC) (S. Afr.) (nding
that the constitution imposes a duty on the government with respects to right of access to adequate
housing). On the idea and practice of transitional justice, see Ruti Teitel, Transitional Justice (2000);
Ruti Teitel, Comparative Constitutional Law in a Global Age, 117 Harv. L. Rev. 2570 (2004) (reviewing
Comparative Constitutionalism: Cases and Materials (Norman Dorsen et al. eds., 2003)).
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250
251
26.
27.
28.
29.
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253
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lematic understanding of pluralism itself by conating the boundaries of political communities with those of ethical ones.34 The ideology, moreover, reverses
the relationship between the right and the good and between democracy and
the demos and builds up an unresolvable tension between romantic ideals of
autonomous personality and a closed, historically complete society with a coherent and gapless legal system.
In the context of the problems of collapse into positivism and of collapse
into national liberal romanticism, the unsettling and provocative question
emerges whether political liberalism, at least in its current ofcial instantiations, has become a self-subverting doctrine. Of course, recourse to the other
limb of the paradoxnatural-rights thinking in international lawis prohibited, as indeed it should be. Given the existence of multiple pluralisms,
retrogression to natural law and to the monism that accompanies it would drive
the international legal system toward public law formalism punctuated by
the hypocrisy and injustice of deliberate avoidance.
What international adjudication can do then is to engage in a constant
grooming of the genesis-validity paradox by embracing both its limbsthe
idea of law working itself pure, on the one hand, and the idea of a deliberate
inchoateness of international law, on the other. International rules and institutions shouldas Anne-Marie Slaughter and William Burke-White have
writtenensure that [domestic political actors] do what they should be doing
anywaye.g., what they have already committed to do in their domestic constitutions and laws.35 From the standpoint of international law, however,
terms such as already committed and doing anyway are themselves constructions or operative ctionsnot mere givens to be re-collected and assembled by an impartial observer.
Being in touch with the relevant rule of law values could thus mean a shift
away from considerations of form, away from the ofcial legal-sources-thinking
toward Lauterpachts reason of the thing.36 By devoting attention to the
pluralistic social context, adjudication could itself become an invitation to
embrace the heuristic possibility of, rst, de-nationalizing constitutional and
adjudicative norms and gradually transforming them into cosmopolitan norms
and, second, re-contextualizing laws sense and sensitivity with regard to the
specics of the particular constitutional domain at issue. These colliding principles would form two corresponding, mutually reinforcing parts of the same
process, understood as both a legal and a moral learning process. The following Section, in examining the gradual transformation of EU law and the
practice of adjudication it encompasses, argues that this heuristic is not entirely at odds with reality.
34. See Seyla Benhabib, Reclaiming Universalism: Negotiating Republican Self-Determination and Cosmopolitan Norms, in The Tanner Lectures on Human Values 25 (Grethe B. Peterson ed., 2005).
35. Anne-Marie Slaughter & William Burke-White, The Future of International Law Is Domestic (or, The
European Way of Law), 47 Harv. Intl L.J. (forthcoming 2006) (manuscript at 31, on le with authors).
36. See Lauterpacht, supra note 11, at 54 and passim.
255
37. Consolidated Version of the Treaty on European Union art. 6(1), Dec. 24, 2002, 2002 O.J. (C
325) 5, 11, available at http://www.europa.eu.int/eur-lex/lex/en/treaties/dat/12002M/pdf/12002M_EN.pdf
(last visited Nov. 20, 2005).
38. Charter of Fundamental Rights of the European Union, 2000 O.J. (C 364) 1 [hereinafter Charter],
available at http://www.europarl.eu.int/charter/pdf/text_en.pdf (last visited Nov. 20, 2005). This charter
was later incorporated into the now-suspended Treaty Establishing a Constitution for Europe art. I-9(1),
Dec. 16, 2004, 2004 O.J. (C 310) 1, 13 [hereinafter European Treaty], available at http://europa.eu.int/
eur-lex/lex/LexUriServ/site/en/oj/2004/c_310/c_31020041216en00110040.pdf (last visited Nov. 20, 2005).
39. See European Treaty, supra note 38, art. I-9(2), at 13 (establishing that the European Union will
accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms).
This treaty, however, has since been rejected by popular referendum in France and the Netherlands.
256
257
45. See, e.g., Mattias Kumm, Who is the Final Arbiter of Constitutionality in Europe?: Three Conceptions of
the Relationship between the German Federal Constitutional Court and the European Court of Justice, 36 Common
Mkt. L. Rev. 351 (1999) (addressing whether and to what extent national courts may subject secondary
EC law to constitutional review).
46. See Case 26/62, N.V. Algemene Transp.- en Expeditie Onderneming van Gend & Loos v. Nederlandse Administratie de Belastingen, 1963 E.C.R. 1, 7 (establishing direct effect for EC law, provided the
law explicitly grants an individual right and creates for Member States a specic unambiguous obligation to
their nationals).
47. See Case 6/64, Costa v. E.N.E.L., 1964 E.C.R. 585, 586 (establishing the primacy of the European
legal order which binds both [the Member States] nationals and themselves).
48. Case 26/62, Nederlandse Administratie de Belastingen, 1963 E.C.R. 1, 12.
49. Case 6/64, Costa, 1964 E.C.R. at 597.
50. Id. at 593.
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51. Contrast this understanding of European constitutionalism and transnational adjudication with
that of the German constitutional court, the Bundesverfassungsgericht, in its famous Maastricht decision.
In that decision, the court implied that the EU did not manifestand was unlikely in the future to
developthe necessary interaction of social forces, interests and ideas to satisfy the requirements of
democracy. Brunner v. The European Union Treaty, 1 C.M.L.R. 57, 87 (1994).
52. See Andrew Moravcsik, The European Constitutional Compromise and the Neofunctionalist Legacy, 12 J.
Eur. Pub. Poly 349, 365 (2005) (Many areas are essentially untouched by direct EU policy-making,
including taxation, scal policy, social welfare, health care, pensions, education, defense, active cultural
policy, and most law and order.).
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260
Sala, DHoop, Grzelczyk, Trojani, and Collinsthis outcome meant that welfare benets previously available only to a Member States nationals and residents would have to be made available to other people as well. Other cases, such
as Baumbast and R, resulted in an obligation on member states to recognize a
right of residence for family members of former residents or non-economically
active persons. The logic of particular national immigration policies, or of
various kinds of social welfare entitlement, which had been shaped around the
notion of the bounded community, had to be reconsidered in each case in view
of the minimal solidarity commitments undertaken by the relevant member
states, now part of a cross-national community. The ECJ did not impose
answers on national courts or national welfare institutions. Rather, the Court
required the national authorities to reconsider whether and how they had
taken account of the broadened scope of equality and the citizenship norms
entailed by membership in the EU.64
The developments in this line of cases nd support in the EU Charter on
Fundamental Rights (although the ECJ has not expressly used the Charter
to this effect) and in the commitments assumed by member states in this
Charter, with its articles on Solidarity, Equality, and Citizens Rights.
The existence of this Charter makes it difcult for states to insist on excluding resident non-nationals from membership in, or access to, their national institutions.65 A further move in this direction can be seen in the gradual development of a complicated body of EC legislation regulating the coordination of social security benets. This legislation was originally adopted primarily
as an internal market instrument to facilitate the free movement of labor,
but it has in substanceinitially through judicial rulings, and then through
a triggered political responsebecome a partial guarantor of welfare rights
for EU citizens.66 Even in some of the softer political attempts to coordinate
national social policies in areas such as employment, anti-poverty, pensions,
and health, the inuence of both the articulation of solidarity rights in the new
Charter and the underlying constitutional norm of equality (particularly in
the individuals transexuality); C-117/01, K.B. v. Natl Health Serv. Pensions Agency, 2004 ECJ WL
57758 (Jan. 7, 2004) (holding that The European Convention for the Protection of Human Rights and
Fundamental Freedoms, in principle, precludes legislation that prevents transgender couple from fullling
the marriage requirement that allows the surviving individual to receive the decedents pension
benets).
64. See, e.g., Case C-456/02, Trojani v. Centre public daide sociale de Bruxelles, 2004 ECJ WL 59428
(Sept. 7, 2004) (nding that in the present case, it must be stated that, while the Member States may
make residence of a citizen of the Union who is not economically active conditional on his having
sufcient resources, that does not mean that such a person cannot, during his lawful residence in the host
Member State, benet from the fundamental principle of equal treatment as laid down in Article 12
EC).
65. See generally Siofra OLeary, Solidarity and Citizenship Rights in the Charter of Fundamental Rights of
the European Union, in EU Law, supra note 54, at 32.
66. See Dorte Sindbjerg Martinsen, The European Institutionalization of Social Security Rights: A TwoLayered Process of Integration 2 (Eur. Univ. Inst., Florence, Working Paper LAW No. 2003/13, 2004) (indicating that the personal scope of Regulation 1408/71, coordinating social security rights across European borders, has been . . . extended over time.).
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67. See Maurizio Ferrera, Towards an Open Social Citizenship? The New Boundaries of Welfare in the European Union, in EU Law, supra note 54, at 11.
68. Case C-60/00, Mary Carpenter v. Secy of State for the Home Dept, 2002 E.C.R. I-6279.
69. Case C-109/01, Secy of State for the Home Dept v. Akrich, 2003 E.C.R. I-9607.
70. Lawrence v. Texas, 539 U.S. 558 (2003).
71. Harold Hongju Koh, International Law as Part of Our Law, 98 Am. J. Intl L. 43, 54 (2004).
72. Id. at 56.
262
73. Slaughter & Burke-White, supra note 35 (manuscript at 31, on le with authors).
74. Id.