Making International Principles Domestic Law: the Legislative Version

by David Zaring

The question of the use of international authorities by courts is interesting – but what about when Congress does the same thing?

Consider the controversial new rule by the EPA on the use of human subjects in pesticide testing. Congress required the agency to promulgate the rule “consistent with … the principles of the Nuremberg Code with respect to human experimentation.” The Code itself was devised during the Nuremberg trials once prosecutors became aware of the what, exactly, human experimentation had meant in Nazi Germany. Its principles remain current – Congress spoke to the code per the above in its Department of Interior, Environment, and Related Agencies Appropriations Act, 2006 (that’s section 201 of Pub. L. No. 109-54 for those of you who would like to read the statute).

I find the use of the Nuremberg Code interesting for a number of reasons. But it particularly resonates now that international sources of domestic obligation are so prominent. The legislature’s use of the code to constrain domestic regulators exemplifies another, non-judicial way that international principles, in this case human rights principles, can be targeted to specific national problems.

3 Responses

  1. For yet ‘another, non-judicial way that international principles…can be targeted to specific national problems,’ consider Vaughn Lowe’s intriguing essay on how ‘interstitial norms’ might be an ‘engine of change in international law,’ in his contribution to Michael Byers, ed., The Role of Law in International Politics (2000), pp. 207-226. While the interstitial norm emerges here in a judicial process (legal reasoning in the first instance), it clearly has been appropriated in legislative (i.e. non-judicial) contexts. And of course the principle of sustainable development has a history prior to its use in the case cited by Lowe below (see the helpful discussion and assessment by Sean Coyle and Karen Morrow in The Philosophical Foundations of Environmental Law: Property, Rights and Nature (2004), pp. 200-215), as this principle first acquired recognition and significance in the international arena largely through the so-called Brundtland Report (the 1987 World Commission on Environment and Development Report, Our Common Future).

    Specifically, Lowe discusses how the principle of ‘sustainable development’ emerged (in the Gabcikovo Case at ICJ) so as to reconcile a situation in international law in which several possible legal norms might have been used for a legal characterization of factual circumstances: ‘Given the absence of clear boundaries for norms, it is clearly probable that particular pairs or groups of norms, appropriate for application to particular kinds of factual situations, will tend to arise together as competing approaches to the analysis of those situations.’ In this case, a ‘right to [economic] development’ conflicted with the ‘need to protect the environment,’ and by way of reconciling these two principles, the judge in the instant case invoked a third, Hegelian-like dialectical principle of mediation–Lowe’s interstitial norm/principle–namely, the principle of ‘sustainable development’ (on how important this principle has become in the international arena, please see, e.g., I heartily recommend Lowe’s essay to those who’ve yet to read it.

    In short: international principle of ‘sustainable development’ in international arena…judicial recognition in ICJ…international principle now ubiquitous in both domestic and international law!

  2. Very interesting. It isn’t always easy to work out these sorts of intellectual causation – but we definitely shouldn’t tell Julian about the ICJ’s influence.

    I should note that though of course Congress often makes international law domestic law, that’s the whole dual system, etc, it doesn’t always look abroad to find ways to constrain the bureaucracy – or really, to grab specific language meant to solve larger regulatory problems in general.

  3. The European Court of Human Rights can overturn its sodomy and death penalty holdings. But there is no Nazi regime to change the Nuremberg Code on human testing.

    This is an important difference. When the Supreme Court relies on ECHR cases to help define the scope of American law, it exposes American law to instability if foreign law changes. When Congress cites regulations from Nazi Germany, it does not expose do so.

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