User:Howard C. Berkowitz/J
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Variously called the judicialization of international relations,[1] the judicialization of international politics,[2] or, as a title of discussion, Foreign Law, Domestic Courts, and World Politics,[3] is a concern that evolving legal approaches to international conflict are challenges to national sovereignty and even democratic processes within nations. More than one concept is involved here, such as the use of foreign or international law within domestic judicial systems, as well as transnational systems, especially those that developed in Europe after the Second World War.
Pre-WWII
International issues were recognized in some specialized areas such as admiralty law, but early attempts at transnational jurisdiction were essentially voluntary arbitration. Created in 1899, Permanent Court of Arbitration (PCA) was little used. The League of Nations created the Permanent Court of International Justice (PCIJ) in 1920, but, while it served in some disputes, had no strong jurisdiction.
WWII Transition
International Military Tribunal (Nuremberg) was external to German sovereignty, which essentially did not exist at the time. Closer to an international model in theory, but less formal in practice, was the International Military Tribunal (Tokyo). That the IMT (Nuremberg) did not hold together beyond the initial trial, with the continuing Nuremberg Military Tribunals being just that — military.
Europe
Properly the Court of Justice of the European Community, the European Court of Justice actually preceded the Community; it ECJ was established first by the Treaty Establishing the European Coal and Steel Community, 18 Apr. 1951, 261 U.N.T.S. 140. After the creation of the European Atomic Energy Agency and the European Economic Community, on 25 March 1957, the Court became the common judicial organ of the three communities. As the European idea of true federation took place, e Court was given wide and, most importantly, compulsory jurisdiction to ensure that the law is observed in the interpretation and application of the Treaties establishing the European Communities and of measures adopted by the competent Community institutions. Noncompliance with the Court’s decision with it fines and sanctions that can be directly enforced by national courts.[4]
U.S. issues
While the Alien Torts Claims Act went back shortly after U.S. independence, international claims, and certainly international law, played relatively little role until the 1980s. Filartiga v. Pena-Irala was a major departure.
In 1997, Jack Goldsmith wrote several papers on the relationships among international law, politics, and U.S. policy. One questioned the "modern position" that customary international law has the status of U.S. federal statutes. [5] He and Curtis Bradley elaborated that the U.S. courts should not allow international humanitarian law, in particular, to supercede the decisions of the Legislative and Executive Branches of the U.S. government. [6]
References
- ↑ Jack Goldsmith (2007), The Terror Presidency, W.W. Norton, p. 21
- ↑ Cesare P.R. Romano (2006), "From the Consensual to the Compulsory Paradigm in International Adjudication: Elements for a Theory of Consent", New York University Public Law and Legal Theory Working Papers (no. 20)
- ↑ Christopher A. Whytock (March 14, 2006), Foreign Law, Domestic Courts, and World Politics
- ↑ Romano, p. 14
- ↑ Goldsmith, Jack Landman & Curtis Bradley (1997), "Customary International Law as Federal Common Law: A Critique of the Modern Position", Harvard Law Review 110: 815
- ↑ Goldsmith, Jack Landman & Curtis Bradley (1997), "The Current Illegitimacy of International Human Rights Litigation", Fordham Law Review 66: 319