Human Rights Lexicon: ‘Foreign Law’ in Constitutional Adjudication

In this fifth contribution to today’s Human Rights Lexicon, Dr Fiona de Londras—a regular contributor here at HRinI—considers the role that comparative and international human rights law can play in domestic rights protections.

Human Rights Lexicon: Using ‘Foreign Law’ to develop Constitutional Rights

Using international and comparative law in human rights litigation and scholarship often results in a hostile or at the least sceptical response. After all, the typical respondent to such a suggestion will say, we have a constitution with a bill of rights and an independent judiciary; what do we need to use other law for? Thankfully in Ireland this response is not that prevalent; it is certainly less prevalent here than in other jurisdictions. However, there remains some scepticism about the extent to which comparative and international law can be useful and, indeed, some concerns that using these sources of law in our domestic rights protection can undermine our sovereignty. In this contribution to the human rights lexicon I want to take on these claims by considering the contribution that international and comparative law can play in developing constitutional understandings of rights and arguing that using these sources of law in constitutional development is appropriate and helpful.

Guest Contribution: Walsh on Compulsory Acquisition for Private Development

We are very pleased to welcome this guest contribution from Rachael Walsh, a PhD candidate in Trinity College Dublin, on lessons for Irish courts from the US experience of compulsory acquisition of land for the purposes of private development. You can learn more about Rachael on our Guest Contributors page.

Compulsory Acquisition for Private Redevelopment – Lessons from the U.S.

A basic legal principle in most jurisdictions that protect the right to private property is that the State cannot take an individual’s property and transfer it to another person in order to confer a private benefit. Rather, the State must have a public purpose of some kind to support its use of compulsory acquisition powers. This limit on the State’s power safeguards an individual’s right to possession of his or her property rather than simply to the value of the property, as the State is not free to take property just because it pays compensation to the dispossessed owner.

Controversy has arisen in the U.S. over whether “economic development” is a sufficiently public purpose to support a compulsory acquisition of private property for redevelopment by another private individual or entity, reaching its height in the debate surrounding the Supreme Court’s decision in Kelo v City of New London 545 U.S. 469 (U.S. 2005). The Court held that New London, which was designated a “distressed area” because of its high unemployment rate, could compulsorily acquire the applicants’ homes in order to implement a development plan for the area. The plan was drawn up when Pfizer announced it intended to build a $300 million research facility in the city, and it proposed the construction of a waterfront conference hotel, restaurants, shopping and marinas, as well as research and development office space. In a 5-4 decision, the Supreme Court upheld New London’s exercise of its compulsory acquisition powers. The decision has been widely criticised in the U.S. and has galvanised the property rights movement, resulting in amendments to state constitutions to limit the use of compulsory acquisition powers. Unfortunately, in New London the planned construction has not happened, and the acquired lands remain undeveloped. To add insult to injury, Pfizer announced it was pulling out of the city in November 2009. (New York Times report)