Written by Julian Arato
Like all constituted bodies of government, international organizations change over time—sometimes in profound and unexpected ways. Besides developing through the obvious mechanism of formal amendment by the constituent member states, these governance bodies can and do undergo a more autonomous kind of constitutional development—what might be called informal constitutional change or transformation. This type of quiet evolution may occur on different levels—including the reordering of the organization’s internal architecture in terms of the relative competences of its various organs, as well as the development of the powers of the organization as a whole vis-à-vis the states parties. Unlike formal amendment, which occurs through the express decision of the member states according to a certain procedure, informal transformation occurs more subtly, through the practice of the organization. Although the latter mode of change may attract less attention than the former, the degree of change involved can be just as dramatic.
This Article is about one particular mode of informal change: the transformation of an organization through the practice of its judicial organ in the interpretation of its constituent instrument—in other words, transformation through constitutional interpretation. Not all international organizations include judicial organs, and not all judicial organs are constituted in the same way. Different institutions have been delegated different powers and different kinds of jurisdiction. Their judges are chosen through widely varying procedures, and entertain very different interpretive outlooks. Yet in the abstract the basic fact remains clear: where they are established, such international courts and tribunals tend to contribute substantially to the development of their larger organizations. Through the interpretation of the formal terms of their constituent instruments, these constituted judicial bodies have proven capable of transforming the material constitutions of the organizations to which they belong.
Interpretation Catalysts and Executive Branch Legal Decisionmaking
Written by Rebecca Ingber
Consider the following scenarios in which the United States government must establish a position on its legal authority to detain in a nontraditional conflict such as that with al Qaeda. First, envision exigent combat circumstances: U.S. military operatives find themselves confronting individuals connected to al Qaeda whom they would like to capture and detain, and must determine the scope of their legal authority to do so. Now imagine this question arises in the context of a major report the United States is due to provide to the monitoring committee for a human rights treaty, explaining its understanding of its obligations under and compliance with the provisions of that treaty. Finally, consider how this interpretation might play out if U.S. officials were first asked to state the government’s legal authority for detention in the context of litigation brought by individuals who allege that the government has unlawfully detained them. Might the executive’s position on its legal authority, or even its willingness to stake out a position, differ depending on which of these contexts first triggers the question for legal decisionmakers? If so, why?
Each of these scenarios presents an example of what this Article terms an “interpretation catalyst”—a distinct triggering event compelling the U.S. government to consider, determine, and potentially assert an interpretation of its obligations and authority under domestic or international law. Interpretation catalysts exist in countless forms and play a significant and at times decisive role in shaping the executive’s legal and policy decisionmaking processes and ultimate decisions. Interpretation catalysts can drive the executive branch to crystallize a legal view on a matter that is entirely novel; can bring a formerly identified but dormant issue into urgent focus; and can transfer an issue from one decisionmaking forum to another. The resulting processes triggered by these catalysts then have dramatic—and often predictable—effects on the executive’s ultimate position. That position and the catalyst that influences it are all the more important because of the stickiness of executive decisions, and legal positions in particular, once taken. This Article explores the critical role played by interpretation catalysts in influencing the executive’s ultimate substantive legal decisions, including by determining a particular question’s point of entry within the government, framing the task, shaping the interpretive process, establishing the relative influence of the relevant actors, and informing the contextual pressures and interests that may bear on the decision.
The Judicial Role in New Democracies: A Strategic Account of Comparative Citation
Written by Johanna Kalb
Courts in countries as diverse as Uganda, India, South Africa, and Japan have regularly cited foreign and international law in their decisions, particularly when in the early stages of democratic transition. Other courts, in countries such as Taiwan and Hungary, also rely consistently on comparative sources, but are less likely to identify them explicitly in decisions, in part because of the way in which opinions are drafted. Nevertheless, their adoption of key foreign concepts means that “the impact of foreign constitutional courts is easy to detect in many decisions.”
Part of the explanation for the prevalence of this comparative practice in the democracies formed following World War II is clearly structural—their new constitutions often explicitly incorporated international standards or foreign-rights models into their constitutional commitments. Additionally, many such foreign and comparative references are likely utilitarian; new courts lacking legitimate indigenous jurisprudence may need to borrow early on to speed up the decisionmaking process. Constitutional commitment, however, is only a partial explanation, for in many of these countries the rate of use of foreign and international law references does not seem to track directly with constitutional requirements. In other words, engagement with foreign and international law does not seem to vary measurably between nations based on differences between their specific constitutional commitments. For example, South Africa’s Constitutional Court is among the courts most active in considering the experience of other countries, even though its Constitution does not require it to do so. Similarly, the Ugandan Constitutional Court regularly cites both foreign and international law and practice despite the absence of any explicit constitutional directive. Despite the constitutional directive to consider international law as part of domestic law, the Namibian Supreme and High Courts consider comparative law more frequently than international law in some areas of their jurisprudence.
Address: International Criminal Justice 5.0