Transnational judicial dialogues
The second feature of transnational constitutionalism is the abundance of trans-
national judicial dialogue and references, marked especially by domestic judicial
reference to international norms or the laws of other nation-states. In the many new
constitutions of third-wave democracies, there has often been a demand for judicial
reference to international law or at least international human rights law, and some
even directly pronounce that international laws are part of their domestic laws.
This domestic “constitutionalization” process of international norms has facilitated
not only judicial conversations regarding external norms, but also constitutional
functions of international norms.
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As norms of human rights have become ubi-
quitous around the world, we seek to demonstrate Taiwan’s dynamic judicial
dialogue with the world, and explore the functions it served, in analyzing its
practices in international human rights law.
Judicial reference to international human rights
Judicial enactment of international human rights law has been the primary method
leading to the current development of transnational constitutionalism in Taiwan.
The Constitutional Court in Taiwan has been referring to international human
rights law since the 1990 s, the first reference being made in 1995. Since then, there
have been twenty-four decisions where the court cited international human rights
law, among which only two decisions appeared in the 1990 s, while twenty-two
appeared between 2000 and 2010. There were seven majority opinions that referred
to international human rights instruments, eighteen references in concurring
opinions, and fourteen references in dissenting opinions. Generally, there were
limited, but gradually increasing, judicial references to international human rights
law in the Constitutional Court. The international human rights law referenced by
the court included, besides the ICCPR and CEDAW, the European Convention
on Human Rights (ECHR), the Convention on the Rights of the Child (CRC),
the International Labor Conventions, the American Convention on Human
Rights, and the Universal Declaration of Human Rights (UDHR). Notably, the
UDHR was the most frequently cited international document in separate opinions.
In spite of their nonbinding nature, these international human rights laws have
been treated by the Constitutional Court as persuasive, and at times even compel-
ling, international legal authority.
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In fact the attitude of Taiwan’s Constitutional Court toward international
human rights law in its constitutional adjudication has been quite open. It should
be noted that, unlike some constitutions enacted during the 1990 s that often
(^46) Yeh and Chang, “Transnational constitutionalism,” 95 – 8.
(^47) For a more detailed analysis of the use of international human rights law in the Taiwanese
Constitutional Court, see Chang, “Bottom-up transnational constitutionalism,” 212.