¹ A Conversation on the Relevance of Foreign Law for American Constitutional Adjudication with U.S. Supreme Court Justices Antonin Scalia and Stephen Breyer (January 13, 2005, US Association of Constitutional Law).

² For a comprehensive account of the transition away from Communist authoritarianism in Eastern Europe and military rule in Southern Europe see J.J. Linz and A. Stepan, Problems of Democratic Transition and Consolidation: Southern Europe, South America and Post Communist Europe (Baltimore 1996); and see also R.A. May and A.K. Milton (Un)civil Societies: Human Rights and Democratic Transitions in Eastern Europe and Latin America (Lexington Mass. 2005).

³ K. Scheppele, “The Migration of Anti-constitutional Ideas: the Post-9/11 Globalization of Public Law and the International State of Emergency”, in S. Choudhry (ed.), The Migration of Constitutional Ideas (Cambridge 2006).

⁴ The term “migration” is used in preference to “borrowing” since the former is a neutral and wider term without connotations of acceptance on the part of the recipient system.

⁵ “The post-9/11 Migration of Britain's Terrorism Act 2000” in Choudhry, The Migration of Constitutional Ideas.

⁶ Ibid., at 375–6. Roach also argues that the failure of UN Security Resolution 1373 to give explicit definitional guidance as to what is meant by “terrorism” meant that the British approach continued to influence legislative responses.

⁷ M. Delmas-Marty, The European Convention for the Protection of Human Rights (Dordrecht 1992): see chapter V by E. Cavagna and E. Monteiro.

⁸ For discussion, see I. Cram, A Virtue Less Cloistered (Oxford 2002) ch.6.

⁹ Constitution of the Republic of South Africa (1996) Art.39(1)(b).

¹⁰ A useful account of the arguments about the status of international human rights law norms in domestic law in the pre-Human Rights Act era is to be found in M. Hunt, Using Human Rights Law in English Courts (Oxford 1998) ch.1.

¹¹ (1997–98) HL Debs vol 583, col 513.

¹² Ibid., at col 514. As McCrudden has pointed out, the effect of this relatively weak injunction is to leave the UK judges to decide for themselves how much weight to accord to rulings from Strasbourg (and, it may be added, in which circumstances), McCrudden, C., “A Common Law of Human Rights?; Transnational Judicial Conversations on Constitutional Rights” (2000) 20 O.J.L.S. 499, 504.CrossRefGoogle Scholar

¹³ R. Hirschl, “On the Blurred Methodological Matrix of Comparative Constitutional Law” in Choudhry, The Migration of Constitutional Ideas, at p.42; and see for earlier commentaries on this trend, Mary Ann Glendon, Rights Talk – The Impoverishment of Political Discourse (New York 1991) at ch.6; Slaughter, A.M., “A Typology of Transnational Communication” (1994) 29 U. Rich. L. Rev. 99Google Scholar; Lester, A., “The Overseas Trade in the American Bill of Rights” (1988) 88 Colum. L. Rev. 537CrossRefGoogle Scholar; and McCrudden, , “A Common Law of Human Rights?” (2000) 20 O.J.L.S. 499CrossRefGoogle Scholar.

¹⁴ See the remarks of La Forest J. writing extra-judicially in “The Use of American Precedents in Canadian Courts” (1994) 46 Maine L. Rev. 211 at 220.

¹⁵ Roy, B., “An Empirical Survey of Foreign Jurisprudence and International Instruments in Charter Litigation” (2004) 62 U.T. Fac. L. Rev. 99, 110.Google Scholar

¹⁶ See Slaughter, note 13 above, at 127.

¹⁷ A. Cohler, B. Miller and H. Stone (trans. and eds.), Spirit of the Laws (Cambridge 1989), 8–9. Montesquieu argued that laws would differ according to physical characteristics such as climate, terrain, the way of life of the inhabitants, their religion, inclinations, wealth, trade etc.

¹⁸ “Community and the First Amendment” (1997) 27 Ariz. St. L. J. 473.

¹⁹ 376 US 254 (1964).

²⁰ [2001] 2 A.C. 127, 205 where Lord Nicholls states, “The elasticity of the common law principle enables interference with freedom of speech to be confined to what is necessary in the circumstances of the case. This elasticity enables the court to give appropriate weight, in today's conditions, to the importance of freedom of expression by the media on all matters of public concern.”

²¹ See in the case of the Hong Kong judiciary in the period up to 1997, Ghai, Y., “Sentinels of Liberty or Sheep in Woolf's Clothing? Judicial Politics and the Hong Kong Bill of Rights” (1997) 60 M.L.R. 459 at 479CrossRefGoogle Scholar.

²² US Senate Confirmation Hearing John G. Roberts Jr 13 September 2005.

²³ See comments of Rep. J. Ryun, Appropriate Role of Foreign Judgments in the Interpretation of American law: Hearing before the Subcommittee on the Constitution, of the House Committee on the Judiciary, 108th Cong., 2d Sess. 568 (March 25, 2004).

²⁴ 539 US 558, 598.

²⁵ “A Common Law of Human Rights?” (2000) 20 O.J.L.S. 499, 520. See further Glendon, Rights Talk, 70 for criticism of US insularity. Glendon contends that the unwillingness to consider foreign legal judgments has denied Americans “the opportunity for rediscovery of our own tradition, with its tremendous potential for self-renewal and for creative adaptation to new and challenging circumstances.”

²⁶ 539 US 558 (2003). See also Roper v. Simmons 543 US 551 (2005) (juvenile death penalty held “cruel and unusual punishment” under 8^th Amendment) and Atkins v. Virginia 536 US 304 (2002) (death penalty for mentally retarded offenders violated 8^th Amendment). For a sample of the discussion provoked by these cases resort to foreign legal materials see Zubaty, R., “Foreign Law and the US Constitution: Delimiting the Range of Persuasive Authority” (2007) 54 U.C.L.A. L. Rev. 1413Google Scholar; and O. Benvenuto, “Re-evaluating the Debate Surrounding the Supreme Court's Use of Foreign Precedent” (2006) 76 Fordham L. Rev. 2695.

²⁷ Bowers v. Hardwick 478 US 186 (1986). Dudgeon was cited by Kennedy J. in Lawrence to refute the claim made by Chief Justice Burger in Bowers that homosexual acts have been “subject to state intervention throughout the history of Western civilisation.” (at 196). See further J. Larsen, “Importing Constitutional Norms from a ‘Wider Civilization’: Lawrence and the Rehnquist Court's Use of Foreign and International Law in Domestic Constitutional Interpretation” (2004) 65 Ohio St. L.J. 1283.

²⁸ 324 US 401, 408–9 (1945) discussed by M. Tushnet, “The Possibilities of Comparative Constitutional Law” (1999) 108 Yale L.J. 1225, 1238 and McCrudden, “A Common Law of Human Rights?” (2000) 20 O.J.L.S. 499, 508–9. For discussion of the Canadian Supreme Court's willingness to cite US Supreme Court rulings, see Roy, “Empirical Survey of Foreign Jurisprudence” (2004) 62 U.T. Fac. L. Rev. 99; and see earlier P. Glenn, “Persuasive Authority” (1987) 32 McGill L.J. 261.

²⁹ M. Feeley, “Comparative Criminal Law for Criminologists: Comparing for What Purpose?” in D. Nelken (ed.) Comparing Legal Cultures (Dartmouth 1997).

³⁰ Hirschl, “Blurred Methodological Matrix” in Choudhry, The Migration of Constitutional Ideas, at 41. I deal here with the first three types only.

³¹ Hirschl, R., “The Question of Case Selection in Comparative Constitutional Law” (2005) 53 Am. J. Comp. L. 125, 128.CrossRefGoogle Scholar

³² It might be thought that “dialogical” comparative scholarship straddles the boundary between Hirschl's categories 2 and 3 since this approach uses other systems' values and concepts to identify values and norms underpinning the domestic system and subject them to scrutiny. For an example of the dialogical method, see F. Michelman, “Reflection (Symposium: Comparative Avenues in Constitutional Law Borrowing) (2004) 82 Texas L.R. 1737, using South African affirmative action jurisprudence to analyse the hostility in the US towards race-based affirmative action programmes.

³³ Slaughter, “Typology of Transnational Communication” (1994) 29 U. Rich. L. Rev. 99, 122 and 134–5.

³⁴ The phrase is taken from McCrudden, “A Common Law of Human Rights?” (2000) 20 O.J.L.S. 499.

³⁵ For all the foregoing, the classification offered above cannot avoid a degree of arbitrariness in the categories it attempts to set down.

³⁶ [1986] 1 S.C.R. 103; and see Roy, “Empirical Survey of Foreign Jurisprudence” (2004) 62 U.T. Fac. L. Rev. 99, 117–8.

³⁷ Drawing in part upon Fox, Campbell and Hartley v. UK (1991) 13 E.H.R.R. 157 at paras. [32] and [34]. Note especially [32]: “having a ‘reasonable suspicion’ presupposes the existence of facts or information which would satisfy an objective observer that the person concerned may have committed the offence. What may be regarded as ‘reasonable’ will however depend upon all the circumstances.”

³⁸ Guideline II. The Guidelines were adopted by the Committee of Ministers on 11^th July, 2002 at the 804^th meeting of Ministers' Deputies.

³⁹ Guideline III.

⁴⁰ Guideline VII.

⁴¹ Guideline VIII.

⁴² One of the earliest guarantees of the right to a fair trial is to be found in the Magna Carta (1215).

⁴³ For an outline of the control order system laid down by the Prevention of Terrorism Act 2005, see R. Stone, Textbook on Civil Liberties and Human Rights, 6^th ed. (Oxford 2006), at pp. 232–3. For critical analysis, see Joint Committee on Human Rights Eighth Report (2006–07) available electronically from http://www.parliament.uk/parliamentary_committees/joint_committee_on_human_rights.cfm.

⁴⁴ [2003] U.K.H.R.R. 76.

⁴⁵ These other statements included parliamentary answers and an official statement recorded in the 1999 British Yearbook of International Law.

⁴⁶ [1995] 183 C.L.R. 273, 291.

⁴⁷ [1998] I.N.L.R. 570, 584.

⁴⁸ [2003] U.K.H.R.R. 76 at para. [98].

⁴⁹ The US District Court had found that the detainees' habeas corpus petitions were not justifiable. See Rasul v. Bush 542 US 466 (2004) for the Supreme Court's subsequent overruling of the District Court on this point, and for commentary see P. Wald, “The Supreme Court Goes to War” in P. Berkowitz (ed.), Terrorism, the Laws of War, and the Constitution – Debating the Enemy Combatant Cases (Stanford 2005).

⁵⁰ Case number 2 BVR4 19/80.

⁵¹ [2003] U.K.H.R.R. 76 at para. [106].

⁵² Strictly speaking, Ahmed and Patel falls outside the scope of this survey as it was decided in 1998.

⁵³ (1996) 23 E.H.R.R. 413 paras. [79]–[80].

⁵⁴ The derogation was given effect in domestic law by The Human Rights Act 1998 (Designated Derogation) Order 2001 (SI 2001/3644).

⁵⁵ Anti-terrorism, Crime and Security Act 2001, Part IV, ss.21–23.

⁵⁶ [2005] 2 A.C. 68.

⁵⁷ For commentaries on the ruling see inter alia B. Dickson, “Law versus Terrorism: Can Law Win” [2005] E.H.R.L.R. 11; C. Walker, “Prisoners of ‘War all the Time’” [2005] E.H.R.L.R. 50, and D. Feldman, “Human Rights, Terrorism and Risk: the Roles of Politicians and Judges” [2006] P.L. 364, esp. 371–2, and M. Elliott, “Detention without Trial and the ‘War on Terror’” [2006] I.J.C.L. 553.

⁵⁸ The discrepancy between the number of foreign cases (12) and aggregate total of references across individual judges (15) is explained by the fact that the same foreign case is cited by more than one judge.

⁵⁹ See paras. [39], [178]. Lord Hope distances himself from this view, stating that active judicial role envisaged in RJR McDonald does “not fit” with the words of Article 15 of the ECHR, para. [131].

⁶⁰ (1997) 3 B.H.R.C. 269, cited at [2005] 2 A.C. 68, para. [39].

⁶¹ 319 US 624 (1943), cited at [2005] 2 A.C. 68, para. [39].

⁶² 584 F Supp 1406 (1984) using the exceptional coram nobis jurisdiction to reverse the US Supreme Court's heavily criticised wartime ruling in the same case at 324 US 214 (1944).

⁶³ [1986] 1 S.C.R. 103, cited at [2005] 2 A.C. 68, para. [30].

⁶⁴ (1997) 3 B.H.R.C. 269, cited at [2005] 2 A.C. 8, para. [30].

⁶⁵ [2005] 2 A.C. 68, para. [30].

⁶⁶ [1995] 3 SCR 199, 342, cited at [2005] 2 A.C. 68, para. [214].

⁶⁷ 336 US 106, 112–3 (Jackson J.), cited at [2005] 2 A.C. 68, para. [46].

⁶⁸ 142 US 651 (1892), cited at [2005] 2 A.C. 68, para. [134].

⁶⁹ [2005] 2 A.C. 68, para. [70]. The three Supreme Court rulings referred to are Shaughnessy v. US, ex rel Mezei 345 US 206 (1953); Zadvydas v. US 533 US 678 (2001); Chae Chan Ping v. US 130 US 581 (1889); See also Lynch v. Cannatella 810 F 2d 1363 (1987) and Fernandez v. Wilkinson 505 F Supp 787 (1980).

⁷⁰ The procedures are authorised in the Schedule to the Prevention of Terrorism Act 2005 and in CPR Pt 76.

⁷¹ Exceptionally, the Court may lift this restriction, see CPR Part 76.25(3)–(4).

⁷² [2007] 3 W.L.R. 681.

⁷³ The modern formulation of the rule is found in Ridge v. Baldwin [1964] A.C. 40.

⁷⁴ [2007] 1 S.C.R. 350.

⁷⁵ 542 US 507 (2004). On Hamdi, see O. Fiss, “The War against Terrorism and the Rule of Law” (2006) 26 O.J.L.S. 235.

⁷⁶ [2007] 3 W.L.R. 681, at para. [65], citing O'Connor J. in Hamdi v. Rumsfeld 542 US 507 (2004), 509.

⁷⁷ [1992] 1 S.C.R. 711.

⁷⁸ (2004) 125 C.R.R. (2d.) 319.

⁷⁹ [2006] 2 A.C. 221, at para. [11], per Lord Bingham.

⁸⁰ Rushworth, Historical Collections (1721), vol. 1, at 638–9.

⁸¹ [2006] 2 A.C. 221 para. [13], per Lord Bingham.

⁸² 324 US 214 (1944), 246.

⁸³ (1985) 612 F Supp 544 (US Sixth Circuit Court of Appeals).

⁸⁴ (1992) 965 F 2d 699 (US Ninth Circuit Court of Appeals). There is also discussion in Lord Bingham's opinion of whether, as a matter of international law, the prohibition on torture has acquired the status of jus cogens which he answers in the affirmative, referring in part to decisions of the Supreme Court of Israel in Eichmann and the US Sixth Circuit of Appeals in Demjanjuk.

⁸⁵ 1989 (3) Z.L.R. 117 at 131.

⁸⁶ Rochin v. California 342 US 165 (1952).

⁸⁷ R v. Oickle [2000] 2 S.C.R. 3.

⁸⁸ Attorney General v. O'Brien [1965] I.R. 142.

⁸⁹ R v. Ireland (1970) 126 C.L.R. 321.

⁹⁰ So that a failure to discharge such a burden would mean that the evidence could not be admitted by SIAC.

⁹¹ The precise wording of the majority's formulation refers to an obligation on SIAC to make such “diligent inquiries into the sources that it is practicable to carry out” (see Lord Hope, para. [121]) but, as the minority opinion points out, this in effect puts the already disadvantaged detainee in the position of having to raise doubts about the provenance of the information so that SIAC is then prompted to make “diligent inquiries”; see Lord Bingham (para. [59]) Lord Nicholls (para. [80]) and Lord Hoffman (para. [98]).

⁹² The other two majority judges agreed with the reasoning and test set out by Lord Hope without citing El Motassadeq.

⁹³ 14 June 2005, NJW 2326.

⁹⁴ [2006] 2 A.C. 221 (para. [60]).

⁹⁵ Ibid.