Research On The Application Of Implied Power In The Interpretation Of Constitution And International Law

The concept in constitution is applied in international law with the syncretic development of constitution and international law.As a power interpretation theory originated from the Constitution,implied power was established by Judge Marshall as a power interpretation principle in the constitution through the argument of American sages,then to the second Bank case after the extensive use of judicial precedent in the United States,which finally achieved the effect of power expansion of the federal government.This principle of interpretation has also been applied and developed in international law,providing a basis for the expansion of power of international organizations and their institutions.Although the implied power transits from the Constitution to the international law,the difference of the attribute between the Constitution and the international law leads to the difference of the implied power in the context of the Constitution and international law.Compared with the use of implied power under the interpretation of constitution,the use of implied power in the interpretation of international law is more conservative and modest.This paper discusses the application of implied power in the interpretation of constitution and international law from four parts:The first part explains the definition of implied power and the limitation of implied power.From the perspective of constitution and international law,this paper combs the definition of implied power by scholars and judges.From the perspective of constitution and international law,there are different understandings of implied power.The differences in the understandings of implied power in different legal contexts mainly come from the different understandings of the sources of implied power.Finally,the implied power is defined as the interpretation principle that can be applied in the context of constitution and international law at the same time.The exercise of implied power as a means of power is necessarily limited,and the necessary and appropriate provisions in the constitution are considered to be the source of interpretation of implied power,as well as the restriction of implied power,whereas in the past the emphasis had been on the interpretation of "necessity",which had led to an arbitrary interpretation of power,the restriction of implied power should give equal attention to the word "appropriate" in the provision.The second part and the third part respectively discuss the origin and development of implied power from the angle of constitution and international law.The focus on implied power in the constitution is divided by the McCulloch case.Before the McCulloch case,there were hints of implied power in federalist and anti-federalist.constitutional debates and in earlier supreme court cases.After the McCulloch case,the implied power develops vigorously in the American constitution interpretation,and becomes one of the important principles of the constitution interpretation.The development of implied power in international law is similar to that in the constitution.Already there are hints of the application of implied powers in the Permanent Court of International Justice's advisory opinion,and the court has applied them more broadly in an expansive interpretation of the competence of international organizations and their organs.The Court of Justice of the European communities and the Appellate Body of the WTO also apply the principle of interpretation in the interpretation of international law to achieve the effect of power expansion.The fourth part compares the application of implied power in the interpretation of constitution and international law,and analyzes the similarities and differences of the application of implied power in different contexts.As the principle of interpretation of power expansion rooted in the constitution,it is applied in international law and achieves the same effect of power expansion in different legal contexts.Moreover,as the Basic Treaty of the establishment of international organization,its essential attribute as a multilateral treaty has not changed.This difference in the nature of international law and constitutional texts also leads to the difference in the understanding of the source of implied power and its ap plication in the interpretation of international law.