International Law and the Shrinking Space for Politics in Developing Countries

Law and Rights: Global Perspectives on Constitutionalism and Governance (Vandeplas Publishing, 2008)

Widener Law School Legal Studies Research Paper No. 08-31

19 Pages Posted: 13 Mar 2008 Last revised: 25 Mar 2009

J. Patrick Kelly

Widener University Delaware Law School

Date Written: March 10, 2008

Abstract

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.

Keywords: Comparative Constitutional law, customary international law, constitutional interpretation, democratic legitimacy, globalization, constitutional rights, international law, social policy, legal theory

JEL Classification: K33, K32

Suggested Citation

Kelly, J. Patrick, International Law and the Shrinking Space for Politics in Developing Countries (March 10, 2008). Law and Rights: Global Perspectives on Constitutionalism and Governance (Vandeplas Publishing, 2008); Widener Law School Legal Studies Research Paper No. 08-31. Available at SSRN: https://ssrn.com/abstract=1104694

J. Patrick Kelly (Contact Author)

Widener University Delaware Law School ( email )

4601 Concord Pike
Wilmington, DE 19803-0406
United States

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