Comments on: International jurisprudence, Dublin style

By: Maria

Maria — Wed, 23 Feb 2005 11:25:43 +0000

Clyde – do you have an email address I can use? If so, please send it to maria dot farrell at gmail dot com.

By: Idiot/Savant

Idiot/Savant — Fri, 18 Feb 2005 22:01:54 +0000

The article explains that courts in those countries do use foreign law, but I’m curious about the circumstances in which it’s done It’s not a matter of applying other countries laws, but of applying their reasoning in similar situations. For example, in NZ, judicial decisions on aboriginal title and common-law property rights have been heavily influenced by decisions from foreign jurisdictions (including the US Supreme Court) right from the start, and despite an evolving native jurisprudence, decisions are still peppered with references to cases from Australia, Nigeria, India, and Canada. And on immigration law, we have recently had a ruling in the Ahmed Zaoui case that the importation of the UN Refugee Convention into NZ law means that the international jurisprudence surrounding decisions has also been imported (which vastly increases the attention that must be paid to the human rights of refugees). The case is currently before our Supreme Court, but IIRC, that part isn’t being considered. In essence, it is about recognising that your problems are not unique, and that other people who have faced similar ones may have some light to shed on the subject. And the only reason I can think of for rejecting this is arrogance.

By: dan hardie

dan hardie — Fri, 18 Feb 2005 15:29:18 +0000

John, the FARC thing was a helluva long time ago, and the fact is that there was a two month delay between the December bank robbery and the first CT comment (today, by Henry). But now that the sinners have repented, I am a happy man….

By: snuh

snuh — Fri, 18 Feb 2005 07:09:17 +0000

also, how many times my stoopid comment shows up on this page.

By: snuh

snuh — Fri, 18 Feb 2005 07:02:48 +0000

I fully expect Henry Farrell (another man with an admirable collection of chins) to show up and denounce me as a British nationalist for, er, criticising my own country. i imagine henry’s response would depend on how many chins you have, this apparently being an important criteria.

By: snuh

snuh — Fri, 18 Feb 2005 07:02:01 +0000

By: kasei

kasei — Fri, 18 Feb 2005 02:16:45 +0000

Andrew Boucher, You asked me “Do you really expect China to be multi-lateralist if, 15 to 30 years down the road, it becomes a hyperpower to the American superpower ?”, to which I feel the answer is no – my point was using the present situation of US dominance & arrogance as an example. If China and/or other states achieve a similar level of economic & military power, I’m not sure they’d pursue multilateralism either, and just as with the US, I doubt this will prove to be of long-term advantage. Right now humanity faces two large challenges (okay so you’re not all going to agree with these but so what…) – the ‘war’ on terrorism and global warming – and it appears that neither are solvable unilaterally, and both are more-or-less global in effect. Cooperating over these issues is urgent, but hyperpower arrogance is clearly a hinderance to any sensible debate and action from occuring.

By: Clyde Mnestra

Clyde Mnestra — Thu, 17 Feb 2005 22:41:54 +0000

Not to beat a dead horse, but what’s the basis for this account of Scalia’s remarks? Thanks in advance for any tips. P.S. Not sure if the hyperlink for Rockall was indeed fixed, unless it was meant to be ironic.

By: nick

nick — Thu, 17 Feb 2005 22:39:32 +0000

Actually, Sandra Day O’Connor has spoken about the growing need to, at very least, acknowledge foreign judgements when assessing ‘evolving standards of decency’ w/r/t the death penalty. Scalia’s something of an outlyer in his absolutist talk of foreign precedent as ‘dangerous dicta’.

By: james

james — Thu, 17 Feb 2005 20:46:22 +0000

The US Supreme Court does make frequent use of foreign law as long as it predates the founding of the country. Roe v Wade made use of both English Common Law and ancient Greek law. SCOTUS is much more hesitant to make use of more recent foreign precedence. Partially this may be due to public opinion. More realistically it is likely due to the fact that, barring a ratified treaty, foreign law has no legal standing in the US. The US Constitution clearly spells out sources for the creation of laws: Congress, Supreme Court ruling (not creating) and Ratified Treaty.

By: John Quiggin

John Quiggin — Thu, 17 Feb 2005 20:24:40 +0000

“and there’s damn all sign of concern on Crooked Timber.” Dan, this is way off the mark, as a quick search would have shown you. Here’s one from me, mentioning the IRA and FARC, and Henry, Maria and Kieran have all, not surprisingly, had more to say than me.

By: roger

roger — Thu, 17 Feb 2005 18:03:12 +0000

The unilateralism of the Bush administration is to be expected of the headless incompetents in D.C. It is a surface phenomenon. In reality, we already have multilateralism—it is called a trade deficit. And, as the Bushies piss away another borrowed trillion trying to shunt social security money to favored investment traders, they simply create another chain to yank—and eventually, the Asian central banks will yank it. Remember Friedman’s Golden Straightjacket—the cynical idea that Globalization takes economic policy out of the hands of the governments of developing countries? Well, the U.S., the mentally retarded imperial power, is eventually going to feel it, instead of enforcing that feeling on others. It isn’t a hyperpower, it is a spree power. With intellectuals such as Ignatieff operating as professional enablers.

By: Sebastian Holsclaw

Sebastian Holsclaw — Thu, 17 Feb 2005 18:02:57 +0000

But as any Politics undergraduate who’s read Hobbes’ Leviathan can tell you, Ignatieff has left out an important part of the rationale behind multilateralism. Countries (or individuals, or corporations, etc.) hand over some sovereignty, i.e. volunteer to curtail their range of autonomy, not just to pool their power – though that’s very important. They also benefit directly from the curtailment of others’ activities, be they German militarisation, unlimited proliferation of nuclear weapons, the negative externalities of industrial pollution, and so on. Engaging in multilaterism is a genuine trade-off, in that countries make positive gains from their and others’ limitation of action.

I actually agree with this, and believe that it explains perfectly why I am very disenchanted with multilateral action on security issues. Multilateral institutions have thus far been awful at dealing with nuclear proliferation and places like Iraq (1990), North Korea (1991, 1994, present) and Iran (present). Therefore Americans feel like they are giving things up AND not getting the promised return from them.

By: dan hardie

dan hardie — Thu, 17 Feb 2005 18:02:52 +0000

Yes, I can imagine Patten telling that story, moral superiority oozing from every chin. I’ll try the same jape on Patten some time, given that from 1987 he was Minister of State at the Foreign Office when British foreign policy included sending the SAS to teach civilian-killing mine-laying techniques to Cambodia’s ‘Non-Communist Resistance’ (read- allies of the Khmer Rouge). Of course, nobody knows any Irish history nowadays, but I do wish someone had told the Irish lawyer making jokes about internment that from 1921 until 1962, such Great Irish Statesmen as Michael Collins, Kevin O’Higgins, Eamon de Valera and Sean Lemass all imprisoned large numbers of IRA suspects, without trial. Collins and O’Higgins were also keen on executions without trial, torture and reprisals. The Irish state, or states, of the twentieth century was utterly ruthless – at least as much as the Bush administration- when it thought that the IRA posed a threat to it. When the IRA had the decency to indicate that its job was to kill Brits and Ulster Prods, policing in places like Dundalk became famously relaxed. I fully expect Henry Farrell (another man with an admirable collection of chins) to show up and denounce me as a British nationalist for, er, criticising my own country. Still, I personally am a little bored by posts by British and Irish citizens banging on about the anti-democratic sins of the Americans while failing to look at the state of democracy in their own countries. Both the British and Irish governments are going, on past form, to take no serious action against a political party which has obvious ‘links’ (ie is joined at the hip) to an ultra-violent, heavily-armed private army which has lately developed a renewed interest in bank robbery, mutilation, etc. Nor, speaking as a left-liberal, is there much evidence that left-liberal opinion either in the UK or the Republic is really all that bothered about what is happening in Northern Ireland (Henry McDonald of the Observer is a star, but he’s pretty much alone)- and there’s damn all sign of concern on Crooked Timber. What the Bush Administration has done to the rule of law in the US is indeed shameful. But take a look at the state of democracy ‘in these islands’, and we now seem to tolerate negociation-by-armed-threat, and political fundraising by bank robbery. Still, why get worried about democracy and the rule of law in our own countries when we can point fingers at a bunch of foreigners?

By: ricd33

ricd33 — Thu, 17 Feb 2005 17:45:19 +0000

Ummm, I don’t know your source for the Scalia pubfest, but his “agreeing warmly” that a nation could just detain its own citizens without due process doesn’t sound like his position at all. See his dissent in Hamdi v. Rumsfeld where he argues citizens must be tried in ordinary courts. His dissent in Rasul applied to aliens detained at Guantanomo, not citizens.