April 4, 2008
New paper by Kelly
is now available on SSRN. Details below:
Widener Law School Legal Studies Research Paper No. 08-31
Comparative Constitutionalism and Rights: Global Perspectives, Forthcoming
This article asks to what extent and by what processes should international legal norms be incorporated into domestic constitutions particularly in developing countries. It raises several concerns about the democratic legitimacy of many international legal norms and therefore about the wisdom of the developing countries incorporating international legal norms into domestic law without extensive political deliberation. The internationalization of constitutional interpretation rests on several problematic assumptions. First, proponents of internationalization of constitutional interpretation assume that several international norms, originally only human rights but now increasingly environmental norms, are universal and should be incorporated without specific democratic approval. Second, other international norms, delineated as customary international norms, are perceived to be formed by the consent of the world community of nations and are therefore obligatory.
The importation of international norms by developing countries is especially problematic because they have so little input into international norms and institutions. Developing countries are receivers of international law, not makers of international law. Such norms may be of questionable legitimacy in these societies, and may be inappropriate policy choices in countries at a different stage of economic development than more developed western countries.
My concern is that with globalization and the increased dominance of the western democracies in international law formation there has been a turn away from consent as the basis of international law making and towards "Naturalism." Premature international legalism takes normative development and sensible trade-offs out of the realm of both international and domestic politics without the necessary political deliberation. Rights have costs both in financial resources and political resources that should be assessed along with competing claims.
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