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Bring international law into domestic courtrooms

By Martha F. Davis / October 11, 2000



ALBANY, N.Y.

During its current term, which started last week, the Supreme Court will consider issues such as disability rights, treatment of pregnant women, and restrictions on legal services. In so doing, it would serve the court to consult not only US precedents, but international law.

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A growing body of lawyers and judges worldwide look to international human rights norms when addressing domestic legal issues. European nations such as Germany, Commonwealth countries such as Canada, India, and Australia, and developing nations such as South Africa and Namibia, routinely look to international law in establishing and interpreting domestic laws. This approach will rapidly gain momentum with England's Oct. 1 accession to the European Convention on Human Rights. US courts, however, are largely insular in their practices. This isolationist stance is bad for US laws and counterproductive for a country that seeks to promote human rights in other nations.

Ironically, US courts are playing a growing role in bringing foreign wrongdoers to justice. In August, a New York City jury relied on the Alien Tort Claims Act to award $745 million to 12 Bosnian women victimized by soldiers controlled by Radovan Karadzic, the political leader of the Bosnian Serbs. Similar cases are pending around the country.

Yet US judges have rarely looked at the broader implications of international law within our own borders. International treaties and customary law address a range of individual rights and protections, from childcare to housing to affirmative action. However, as Justice Ruth Bader Ginsburg recently noted, the last time the US Supreme Court cited the UN Universal Declaration of Human Rights was 35 years ago. Similarly, when Justice Stephen Breyer referred to European federal systems in a 1997 dissenting opinion, he was roundly criticized by the majority. And in deciding a 1998 case involving the right of a citizen father to sponsor his out-of-wedlock child for citizenship, the US Supreme Court failed even to cite a 1997 Canadian Supreme Court case dealing with the same issue but reaching the opposite conclusion.

Such legal isolationism is antithetical to the increasing international contact that marks American life. It forces the US into an uncomfortable "do as I say, not as I do" posture when urging rogue nations to abide by international human rights laws. It deprives US judges of perspectives and ideas that would enhance their decisionmaking. And in an era where the balance of power is increasingly shifting from the federal government to the states, it denies American citizens a counterweight that might shore up critical individual and civil rights.

Granted, US law carefully cabins the internal impact of international agreements, ensuring that they typically are not enforceable until implemented by Congress. But even if litigants can't sue directly under the UN Convention on the Rights of the Child, for example, US courts should not render decisions in a domestic vacuum. In last term's challenge to the Violence Against Women Act, for instance, the Supreme Court concluded that Congress exceeded its authority under both the Equal Protection and Commerce Clauses of the Constitution when it enacted a civil rights remedy targeting perpetrators of gender-based violence. However, the Supreme Court ignored an amicus brief submitted by 36 distinguished international law scholars and human rights experts, who argued that the US ratification of the International Covenant on Civil and Political Rights (ICCPR) in 1992 created an obligation to address gender-based violence in this country. Since Congress has primary responsibility for implementing international treaties ratified by the US, the experts argued, Congress's authority to enact the women's civil rights remedy arose directly from this international obligation.

Accepting this position would have changed the outcome of the case. But by wholly failing to address US obligations under the ICCPR, whether to uphold or distinguish them, the Supreme Court tacitly took the position that international law - even when ratified by the US - is irrelevant within its own borders. Our courts have ceded leadership in shaping the world's jurisprudence by their singular refusal to examine the interplay between domestic law and the law of nations. The US, with its highly respected judiciary, should be a leader in charting the new territory of international law.

Martha F. Davis is the Stoneman professor of law and democracy at Albany Law School.

(c) Copyright 2000. The Christian Science Publishing Society