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Trans Judicialism, International GLOBALIZATION OF JUDGMENT: TRANSJUDICIALISM, INTERNATIONAL HUMAN RIGHTS LAW AND COMMONWALTH COURTS Reem Bahdi A thesis submitted in conformity with the requirements for the degree of LL.M. Graduate Department of Law University of Toronto @ Copyright by Reem Bahdi, 201 National Library Bibliothéque nationale 1*1 of Canada du Canada Acquisitions and Acquisitions et Bibliographie Services seivices bibliographiques 395 Wellington Street 395. rue Wellington Onawa ON K1A ON4 OttawaON KlAûN4 canada canada The author has granted a non- L'auteur a accordé une licence non exclusive licence ailowing the exclusive permettant à la National Library of Canada to Bibliothèque nationale du Canada de reproduce, loan, distribute or seil reproduire, prêter, distribuer ou copies of this thesis in microform, vendre des copies de cette thèse sous paper or electronic formats. la fome de microfiche/film, de reproduction sur papier ou sur format électronique. The author retains ownership of the L'auteur conserve la propriété du copyright in this thesis. Neither the droit d'auteur qui protège cette thèse. thesis nor substantial extracts fiom it Ni la thèse ni des extraits substantiels may be p~tedor otherwise de celle-ci ne doivent être imprimés reproduced without the author's ou autrement reproduits sans son permission. autorisation. Globalization of J~idgment: Transj~idicialism,International Human Ri& Law and Commonwealth Courts LLM 2001 Reem Bahdi Graduate Department of Law, University of Toronto This paper develops a theory of international human rights law's relationship to domestic law that mediates between local values and international law's ambition to govem. It is divided into four parts. Chapter 1 explores the strengths and weiiknesses of various existing approaches to the domestic use of international law. Chapter II identifies five rationales invoked by Commonwealth courts to justify their reliance on international law. Chapter III develops an approach to international law's relationship to domestic law that is grounded in the case law and that builds on the strengths of existing theories while seeking to address their shortcomings. Chapter N tums to some of the theoretical questions posed by the invocation of international noms in divergent cultural and legal contexts. Are divergent interpretations permissible? Are they avoidable? Drawing on Hans-Georg Gadarner's hermeneutic phiiosophy, it concludes that the sarne nom can give rise to divergent meanings without succumbing to relativism. 1 would like to thank Ed Morgan for challenging me to think more critically, deeply and strategically about international law's application in domestic courts and for his invaluable support throughout this process. 1 would also like to thank Karen Knop for her helpful suggestions and David Dyzenhaus for pointing me to the works of Hans- Georg Gadamer. iii Table of Contents Title Page Introduction Chapter 1: Existing Approaches and Human Rights Advocacy 1. Introduction II. The Binding Authority Mode1 1. The Al1 or Nothing Approach 2. Inability to Privilege Human Rights Clairns 3. The Narrowing Consequences of Universalism 4. The Resort to Legal Fictions a. implici t Incorporation b. Resumptions of Legislative Intent 5. Essentialism and Normative hperialism 6. Categorical Denials 7. Doctrinal Confusion 8. Rationalizing Power III. Binding Authority Re-examined: International Law As Persuasion 1. Edward Morgan: The Two Faces of International Law 2. Transjudicialism: Persuasion and Dialogue Lessons From Comparative Law Legislative Sovereignty Limits of the Persuasion Approach Ratification and Comparative Law Potential For Regressive Application Challenging The Executive Chapter II: The Five Faces of International Law 1. Introduction 11. The Rule of Law Irnperative III. TheUniversalistImpulse IV. International Law as Introspection V. Judicial World Traveling VI. Globalized Self-Awareness VII. Conclusion Chapter III: Bringing Together The Elements 1. Introduction n. The Conceptual Shift 1. Contradiction as Strength 2. Reconfiguring Binding Authority and Persuasion m. Two Stages of Decision-Making 1. The Definitional Stage 2. The Anal ytical Stage IV. Significance of the Matrix of Considerations 1. Development of Transnational Noms 2. Ambiguity and Conflict Reconfigured 3. Giving Priority to Human Rights Norms 4. Legislative Sovereignty 5. The Treaty-Making Function 6. The Judiciary: Choice. Constraints and Transjudicialism 7. Harnessing Apology and Utopia IV. 1s The Matrix of Considerations Supported By The Case Law? VI. Problems and Potential Solutions 1. Regressive Transjudicialism 2. Expanded Imperialism? Vn. Conclusion Chapter N: Herxneneutics and the Domestic Effect of International Law 1. In traduction II. Meaning Resides Within The Text m. The Interpretive Community Defines Meaning 1. Containment Through Community 2. Communi ty of Di fference? N: Gadamer: Truth and Method 1. Gadarner and Justice Tobi 2. Gadarner and the Matrix of Considerations v. Conclusion Conclusion "As it trms out, the law 's creatiort, like their creators themselves, exist in a tonnented state of continuous self-reflection and self-propulsion... One cmmaGe an appointment with the doc?ri~ralfuture, but one cmnever qtiell the amiety mer that jkture. " Ed Morgan, "Discovery" (1999)European Journal of Internarional Law 583 at 603 Introduction Once we saw issues and problems through the prism of a village or nation-state, especially if we were lawyers. Now we see the challenges of ortr time thraugli the world's eye.' Seeds of a revolution have been planted in national courts across jurisdictions. Signs of the revolution exist al1 around as judges turn increasingly to international human rights law in rendering their decisions. The British House of Lords decision in Pinochet represents the best known, widely scrutinized and most drmatic exarnple of such a trend, at least in the est.^ As a former head of state, General Pinochet was certainly no stranger to international law and international noms. Yet, international law is also becoming directly relevant to the lives and claims of individuals who have no public or intemationally recognized persona. Courts in several different countries have tumed to international law to resolve disputes that specifically concern the rights of "ordinary" individuals. Of course, the trend is hardly universal: it has not appealed to al1 judges and has not taken root in al1 countries. However, international law has found its way into the national courts of India, Botswana, Israel, Lebanon, Ireland, Egypt, Canada, Australia, England and beyond.3 ' Michael Kirby, Througit The World's Eye, (Sydney: The Federation Press, 2000). Introduction ' R. 11. Bow Street Metropolitan Stipendiary Magistrale and Otlters, ex parte Pinochet Ugarte (Arnnesty International and otlters intervening) [1998] 4 Al1 England Reporter (House of Lords) [hereinafter Pinochet #I ] '~ariousauthors have analyzed cases from these diverse jurisidictions. Examples include Angela Byre and Beverley Byfield, (eds.), Using International Hunian Rigitts Law in the Commonwealth Carribean (London: Martinus Nijhoff, 1991). Monica Erikson and Andrew Bymes, "Hong Kong and the Convention on the Elimination of All Forms of Discrimination Against Women" (1999) 29(3) Hong Kong Law Jourrral 350. Yuji Iwasawa, International Law, Human Rigltrs and Japanese Law (Oxford: Clarendon Press, 1999), Adel Omar Sherif, "Unshakable Tendency in the Protection of Hunian Rigitrs: Adlterence ro International Instrurnerits on Hunran Rights By Tfte Suprertie Constitutional Court of Egypt. " Margaret Schuler (ed.). Frorn Basic Needs to Basic Rigltts (Women, Law and Development International, 1995), Benedetto Confroti, International Law and the Role of Dornestic Legal Systents (The Netherlands: Kluwer Law International, 1993). Benedetto Conforti and Francesco Francioni, Etflorcing International Huniati Extra-judicial factors have undoubtedl y spurred the growing judicial reliance on international human rights law in national courts. Judges meet with more frequency at judicial colloquia where they exchange experiences in using international law and receive training on its application.4 The Intemet has advanced international law's status within scholarship and decision-making in ways that have yet to be fully explained or explored. At the very least, the Intemet has facilitated access to information and connected groups Rights in Doniestic Courts (London: Martinus. Nijhoff Publishers, 1997), Donna E. Am, 'The Application of International Human Rights Law in Islamic States" (1990) 12 Hurttan Rights Qlcarterly 202, Li Zhaojie, "Effects of Treaties in Domestic Law: Practice of the People's Republic of China" (Spring 1993) 16 Dalitoiisie hwJournal, 62, Georges J. Assaf, 'The Application of International Human Rights Instruments by the Judiciary in Lebanon" in The Role of the Judicary in tlie Protection of Hiiman Rights (London: Kluwer Law International, 1997) 8 1, Hatern Aly Labib Gabr, "Recent Judgrnents of the Suprerne Constitutional Court of the Arab Republic of Egypt Upholding Human Rights" in The Role of the Judiciary in tlie Protection of Humtan Rights, Hazel Fox, 'The Pinochet Case No. 3" (1999) 48 Iriternational arid Corriparative Law Qiianerly 687, Michael Kirby, 'The Australian Use of International Human Rights Noms From Bangalore to Balliol - A View to Antipodes" (1993) 16(2) University of New Soutlt Wliales Law Joiirrlal363. Martin Scheinin. "International Law in National Courts" in An lntrodrcctiori to the lnrerrtariorral
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