Globalization of Judgment: Transjudicialism and the Five Faces of International Law in Domestic Courts

Abstract

This Article identifies and explores the justifications or rationales offered by national court judges in support of their references to international human rights law. It does not analyze the extent to which judges invoke international law; rather, it examines the reasons offered by judges to explain their references to international law. The focus is on leading decisions rendered by higher courts in the United States and Commonwealth jurisdictions where the international norms do not bind decision-makers because they have not been made part of domestic law through an act of incorporation, the relevant treaty has not been ratified, or the ratifying state has filed a reservation limiting a treaty's domestic effect.

Analysis of these cases reveals that judges invoke international law for five interdependent yet discrete reasons: (1) concern for the rule of law; (2) desire to promote universal values; (3) reliance on [*557] international law to help uncover values inherent within the domestic regime; (4) willingness to invoke the logic of judges in other jurisdictions; and (5) concern to avoid negative assessments from the international community. These rationales are not universal in that they are not cited by all judges all of the time; however, they also are nounique to a particular jurisdiction and can be found in the case law across jurisdictions.