Georgetown Law Alumni Magazine - Res Ipsa Loquitur
Fall/Winter 2009 - Online Volume 2
Lectures and Events
Michael Kirby on International Law
The training of lawyers might be jurisdictional in nature, but the law they practice, in reality, is international — according to the Hon. Michael Kirby, a former justice of the High Court of Australia who delivered the 29th annual Philip A. Hart Memorial Lecture in the Gewirz Student Center on April 16. Before a crowd that included Supreme Court Justice Ruth Bader Ginsburg, Australian Ambassador Dennis Richardson, and former Brazilian Supreme Court Chief Justice Ellen Gracie Northfleet, Kirby — the longest serving judge in Australia before his retirement earlier this year — spoke on a subject that has been debated both in U.S. courts and those Down Under: the use of international law to decide questions of domestic constitutional law.
In a speech entitled “Transnational and International Law and the Supposed Democratic Deficit,” Kirby noted that countries have used international law to construe certain statutes or to fill gaps in the common law, particularly in areas such as human rights. Some countries, such as India or Hong Kong, have constitutions that specifically authorize and encourage respect for international law, he said. And even the United States has a bill of rights expressing fundamental human rights principles.
“If you have a set of constitutional principles which express fundamental human rights, it seems to me, it’s not very controversial to look to other countries where they’ve got almost exactly the same,” he said, adding that no one’s bound by what other countries decide. “But it really is reinventing the wheel if you don’t at least have a look at it.”
Still, both the United States and Australia have seen resistance to the use of international law in deciding points of constitutional law. In the 2005 U.S. Supreme Court case of Roper v. Simmons, for example, a dissenting Justice Scalia reproached the majority (led by Justice Kennedy) for bringing up foreign law in deciding whether to impose the death penalty on juvenile offenders. A similar debate took place in Australia in 2004, when the high court in Al-Kateb v. Godwin held by a 4-3 majority that the indefinite detention of a stateless person was lawful. Australian Justice Michael McHugh, in the majority, “reacted very strongly” to the dissenting Kirby’s references to international human rights principles.
Kirby examined the reasons behind this sort of sentiment, including the arguments that one should look to the “original intent” of the framers in interpreting a constitution; the notion of “national exceptionalism,” and the “democratic deficit,” i.e., the argument that international institutions such as the European Union have actually fallen short of fulfilling democratic principles. Kirby noted that Justice John McLean looked to the law of other nations when he dissented in the infamous 1857 Dred Scott v. Sandford opinion holding that people of African descent who were sold as slaves in this country were not citizens. However, the landmark 1803 case of Marbury v. Madison, which established the concept of judicial review, is applied throughout the world.
“The species that split the atom … can surely rescue itself from an overly narrow nationalism in its approach to law,” Kirby said. “We have differences that we do consider precious, but we have a common interest in building the rule of law internationally, and that common interest requires the sharing of knowledge with the world.”
