Transnational Judicial Research Articles

Transnational Judicial Practice in the People’s Republic of China: Resolution of Transmigrants’ Legal Disputes

Transnational Judicial Practice in the People’s Republic of China: Resolution of Transmigrants’ Legal Disputes

Zimbabwe’s Contribution to the Transnational Judicial Dialogue on Corporal Punishment

Abstract On April 3, 2019, the Zimbabwe Constitutional Court found unconstitutional moderate corporal punishment on a juvenile male in State v Chokuramba. The decision in Chokuramba was a victory for transnational human rights litigation, as the Court widely cited and applied international and foreign law to discern a global trend, especially the precedents of near neighbors Namibia and South Africa in an important example of South-South dialogue. This article views litigation as a method of norm diffusion, in which transnational litigators serve as norm entrepreneurs who articulate and advance a right through international and foreign legal citations. In pleadings, whether as counsel, amici, or third-party intervenors, lawyers advance human rights norms by building a body of comparative jurisprudence that can be cited in later cases. Chokuramba was a foundational precedent in a Commonwealth-wide “norm cascade” toward abolition of judicial corporal punishment for juveniles.

Right to Life and Capital Punishment in Transnational Judicial Dialogue

AbstractIn this article, I bring the constitutional jurisprudence of major East Asian courts into reconstructive dialogue with that of the United States, South Africa, and several former Soviet-bloc countries, on per se review of capital punishment. This fills in a gap in the literature, which has failed to reflect new developments in Asia. Besides analysing various review approaches, I extrapolate recurrent analytical issues and reconstruct dialogues among these court decisions. Moreover, I place the analysis in historical perspective by periodising the jurisprudential trajectory of the right to life. The contextualised reconstructive dialogues offer multilayered understanding of my central analytical argument: for any court that may conduct per se review of capital punishment in the future, the highly influential South African Makwanyane case does not settle the lesson. The transnational debate has been kept open by the Korean Constitutional Court's decisions, as well as retrospectively by the US cases of Furman and Gregg. This argument has two major points. First, the crucial part of the reasoning in Makwanyane, namely that capital punishment cannot be proven to pass the necessity test under the proportionality review, is analytically inconclusive. The Korean Constitutional Court's decision offers a direct contrast to this point. Second, the exercise of proportionality review of the Makwanyane Court does not attest to the neutrality and objectivity of proportionality review. Rather, what is really dispositive of the outcome are certain value choices inhering in per se review of capital punishment.

A Dialectic of Effective Judicial Protection and Mutual Trust in the European Administrative Space: Towards the Transnational Judicial Review of Manifest Error?

The courts of the EU's Member States have a duty to ensure the effective protection of individuals who are confronted with administrative decisions potentially infringing their rights. However, the principle of mutual trust is often understood as a limit to this protection. This is in so far as it requires domestic courts to abstain from reviewing decisions made by administrations of other Member States, even though such decisions may have effects beyond national boundaries. As transnational administrative procedures become increasingly frequent, this article analyses the implications of the principles of effective judicial protection and of mutual trust on the review of such procedures by domestic courts. It shows how, by gradually allowing domestic courts to review certain types of manifest errors committed beyond their national jurisdiction, the CJEU is moving past the apparent opposition of these principles. It finally argues that developing the transnational judicial review of manifest error may help improve the effective judicial protection of individuals.

The Transnational Judicial Dialogue of the Supreme Court of Canada: The Primary Mechanisms and Main Effects

The Transnational Judicial Dialogue of the Supreme Court of Canada: The Primary Mechanisms and Main Effects

Judges and Human Rights. Towards a Transnational Judicial System

Is it possible to speak of a Transnational System of Judicial Protection of Human Rights conformed by national and international courts? Mara Gomez, author of the book Judges and Human Rights published by the publishing house Porrua, says yes.

The European Court of Human Rights and Transnational Judicial Dialogue

Abstract Over the past decade, the European Court of Human Rights (ECtHR) seems more and more inclined to use foreign sources of law, that is to say, law that does not originate in the Convention itself or in one of the Member States of the Council of Europe. Unlike in the US, there is little discussion in Europe about this form of judicial dialogue in the case-law of the ECtHR. This paper seeks both to clarify transnational dialogue by the ECtHR and find ways to justify this practice, against the backdrop of the American debate on this topic. First, the concept of transnational judicial dialogue is analysed (Part II). Then judicial dialogue as it presents itself in the judgments of the ECtHR is assessed, especially when non-Convention or foreign law is being used in a substantive way (Part III). Subsequently, an attempt is made to define when and why the use of foreign law by the ECtHR can be considered a justifiable approach in judicial decision-making (Part IV). The paper rounds off with some concluding remarks (Part V).

Transnational Judicial Dialogue as an Organisational Field

AbstractOver the last few decades, judges and courts have had an important role in global governance. They also now communicate with each other more than they used to. Scholars have named this phenomenon ‘the transnational judicial dialogue.’ This paper calls for a comprehensive understanding of this judicial dialogue in a way that will explain the influence it has on courts. This paper proposes to use the concept of organisational fields, developed by DiMaggio and Powell, to study the relationships between courts. It will be seen that this concept gives a fuller account of those relationships and their effects than the existing approaches. This paper will first show that the transnational organisational field of the courts is now emerging using the four criteria of structuration. Then, the paper will discuss three examples of how this concept can contribute to the study of transnational relationships between courts.

Transnational Judicial Conversations on the Personality, Privileges and Immunities of International Organizations - An Introduction

Increasingly, international organisations have been involved in litigation before domestic courts. In this context, a host of legal issues has become relevant, including the domestic legal personality and the privileges and immunities of international organisations. Due to the variety of relevant legal sources and legal cultures, domestic courts have dealt with these issues in different ways. At the same time, some of them have engaged in transnational judicial ‘dialogues’ with other domestic courts and with international courts on these issues.

Transnational Judicial Dialogue as an Organisational Field

Over the last few decades, judges and courts have had an important role in global governance. They also now communicate with each other more than they used to. Scholars have named this phenomenon ‘the transnational judicial dialogue’. This paper calls for a comprehensive understanding of this judicial dialogue in a way that will explain the influence it has on courts. This paper proposes to use the concept of organisational fields, developed by DiMaggio and Powell, to study the relationships between courts. It will be seen that this concept gives a fuller account of those relationships and their effects than the existing approaches.This paper will first show that the transnational organisational field of the courts is now emerging using the four criteria of structuration. Then, the paper will discuss three examples of how this concept can contribute to the study of transnational relationships between courts.

The Future of Transnational Judicial Dialogue

The Future of Transnational Judicial Dialogue

Protection of sexual minorities since Stonewall: their lives, struggles, sufferings, love, and hope

They came first for the Communists, and I didn't speak up because I wasn't a Communist. Then they came for the Jews, and I didn't speak up because I wasn't a Jew. Then they came for the trade union...

Transnational Judicial Dialogue, Harmonization and the Common European Asylum System

Increased policy harmonization on refugee matters in the European Union (EU), namely the creation of a Common European Asylum System (CEAS), has created the imperative for a transnational judicial dialogue between national courts. This article is based on a structured, focused comparison approach to examining a key element of a transnational European legal dialogue, namely, the use of foreign law by national judges when making their own decisions on asylum. It does so by examining two countries, France and Britain, as representative of the difference in legal tradition and culture within the EU in terms of the civil-common law divide. Both case studies are structured around a common set of empirical and jurisprudential research questions. The empirical findings reveal a surprising lack of transnational use of national jurisprudence on asylum between judges. Nonetheless, a slight but noticeable increase in the use of transnational asylum jurisprudence in the British and French courts must be noted. Two broad accounts - one rational, the other cultural - are applied in each of the case studies to explain this empirical finding. This article concludes on the broader implications of these findings for the establishment of a CEAS by 2012.

The Misguided Search for the 'One Law - and the Ongoing Struggle to Articulate it Correctly'

In Mediating Norms & Identities: The Role of Transnational Judicial Dialogue in Creating and Enforcing International Law, Professor Waters urges Federal courts in general, and the Supreme Court of the United States in particular, to participate in an ongoing colloquy between American courts and the courts of other countries. By so participating, suggests Waters, our courts can act not only as norm importers - that is, incorporating foreign precedents into domestic jurisprudence, as in Lawrence v. Texas and Roper v. Simmons - but also as norm exporters, to which other courts in other countries will look when interpreting their own laws and constitutions. It is not universally agreed that this picture is as rosy as Waters paints it; indeed, many regard it as decidedly dystopian, and fear that Josh Hsu is correct when he claims that historians [may] likely look back on the era of Aktins, Roper, and Lawrence as a turning point in the Court's decision-making process. While this essay closely scrutinizes Mediating Norms, I do not so much engage it on its own terms, but rather, at the level of what I perceive to be its animating premises: that is, to critique the conceptions of universal applicability and the one law that underlie the transnationalist paradigm of using comparative materials to shed light on purely domestic law. Herein, then, I approach the issue of foreign law through the lens of a skeptical textualist reading Mediating Norms. In doing so, I hope to clarify the parameters of the debate and to restate, formalize, and develop various criticisms propounded by skeptics of foreign law, in particular, those offered in various speeches by Justice Scalia.

Katherine O'Donovan and Gerry R. Rubin, eds., Human Rights and Legal History: Essays in Honour of Brian Simpson, New York: Oxford University Press, 2000. Pp. viii + 321. $70.00 (ISBN 0–19–826496–8).

Katherine O'Donovan and Gerry R. Rubin, eds., Human Rights and Legal History: Essays in Honour of Brian Simpson, New York: Oxford University Press, 2000. Pp. viii + 321. $70.00 (ISBN 0–19–826496–8). - Volume 21 Issue 2

Common Law of Human Rights?: Transnational Judicial Conversations on Constitutional Rights

It is now commonplace in many jurisdictions for judges to refer to the decisions of the courts of foreign jurisdictions when interpreting domestic human rights guarantees. But there has also been a persistent undercurrent of scepticism about this trend, and the emergence of a growing debate about its appropriateness. This issue is of particular relevance in jurisdictions that have relatively recently incorporated human rights provisions that are significantly judicially enforced. In the UK, a reconsideration of the use of comparative judicial decisions in human rights cases is therefore particularly timely. The interpretation of the Human Rights Act 1998 will bring with it the issue of how far British courts will (and/or should) use jurisprudence from other countries in order to help in arriving at decisions on the interpretation of the Act. This article raises for debate, therefore, the meaning and significance of national judges' citation of judgments from other jurisdictions as part of their reasoning in cases with a significant human (or constitutional) rights aspect. Several questions are identified and explored in an attempt to consider various aspects of the general phenomenon. These include empirical questions (how far does it happen, and where?), jurisprudential questions (can we identify criteria that help explain why it does or does not happen?), and normative questions (is it legitimate?). A review of the existing literature is undertaken with a view to determining how far scholars have succeeded in answering these questions. The article concludes that significant gaps exist in our understanding of the phenomenon and raises for discussion the methodologies that may be appropriate for addressing the phenomenon in the future.