By NOAH LEAVITT
|Thursday, Oct. 16, 2003|
What would happen if American lawyers began to cite decisions from courts in other countries, and from international courts? Would it enhance our judicial system - or bring chaos?
Even asking this question makes many lawyers nervous. After all, many have long assumed that federal, state and local law comprise the totality of our legal system.
However, I will argue that utilizing law from jurisdictions outside our borders is not only possible, but also may, in the near future, become a highly significant legal development.
Indeed, this past weekend, October 11-12, several hundred attorneys gathered in Atlanta to discuss this very subject, at a conference organized by the ACLU. There, several high ranking members of the judiciary - including the Chief Judge of the U.S. Court of Appeals for the Ninth Circuit - spoke to the group.
While they had very different views on the subject, the judges tended to agree that, at a minimum, they would like more education about international and foreign law. That is because they seek to better understand these arguments when attorneys raise them in their courts, as they increasingly have been doing.
The Supreme Court Is Looking Toward International and Foreign Law
The reality is that American attorneys are already beginning to practice this type of legal advocacy - and they are often doing so with the Supreme Court's and some lower courts' blessing.
Immigration lawyers in Illinois are citing decisions of the International Court of Justice and the International Covenant on Civil and Political Rights. Criminal defense lawyers in Michigan are citing decisions of the Constitutional Court of South Africa and the Inter-American Commission on Human Rights. And especially last Term, Supreme Court advocates referred to foreign and international sources, and found the Court receptive.
Indeed, last Term the Court favorably cited international and foreign law in three landmark decisions - and not in dissents, but rather in majority opinions or concurrences. (Previously, international law had generally appeared only in death penalty dissents.)
The first was Atkins v. Virginia, which prohibited the execution of the mentally retarded. Supporting this conclusion, the Court pointed out that within the "world community," the imposition of the death penalty for crimes committed by mentally retarded offenders is overwhelmingly disapproved. Interestingly, this argument originated in an amicus (friend of the court) brief filed by the European Union.
The second was Grutter v. Bollinger, the University of Michigan Law School case permitting the consideration of race in affirmative action claims.
In their important concurrence, Justices Ginsburg and Breyer implied that U.S. laws that agree with their international equivalents are more likely to be upheld by the Court than those that disagree. The two Justices stated that "[t]he Court's observation that race-conscious programs 'must have a logical end point'… accords with the international understanding of the office of affirmative action."
They noted that the International Convention on the Elimination of All Forms of Racial Discrimination, ratified by the United States in 1994, endorses "'special and concrete measures to ensure the adequate development and protection of certain racial groups or individuals belonging to them, for the purpose of guaranteeing them the full and equal enjoyment of human rights and fundamental freedoms.'"
In addition, in their sharp dissent in Gratz v. Bollinger (the Michigan undergraduate admissions affirmative action case), Justices Ginsburg and Souter drew on "contemporary human rights documents" to distinguish policies of oppression from measures designed to accelerate de facto equality.
The third was Lawrence v. Texas, which struck down state anti-sodomy laws. In his sweeping majority opinion, Justice Kennedy drew lessons from a similar case decided by the European Court of Human Rights. He noted that the European Court's ruling was authoritative in all countries of the Council of Europe, and suggested that the U.S.'s lack of agreement on this fundamental issue indicated that the Court should rethink its analysis of the issue.
Justice Kennedy also favorably cited an amicus brief submitted by former UN High Commissioner for Human Rights Mary Robinson and others demonstrating that many countries have taken action consistent with affirming the protected right of homosexual adults to engage in intimate consensual contact.
In his sharp dissent, Justice Scalia - quoting Justice Thomas - thundered, "this Court's Eighth Amendment jurisprudence should not impose any foreign moods, fads or fashions on Americans." But other Justices plainly felt very differently.
Critics assert that Atkins, Grutter, and Lawrence are aberrations - not signs of a larger shift on the Court. But this Term, lawyers are expected to file a growing number of amicus briefs addressing international law. And it is safe to predict that the Court will, at a minimum, carefully consider these arguments, just as it repeatedly did last Term.
Why the Courts Are Becoming More Open to International/Foreign Law Arguments
What are the sources of this legal sea-change?
One source of the change is the Justices' personal experience. Some travel widely during their summer breaks, meet their colleagues from other nations, and learn a great deal about foreign law. Some also feel part of a larger global legal order. Justices Kennedy, Ginsburg, O'Connor, and Stevens have all spoken or written about the influence of foreign lawyers and laws on their own legal development.
A second source of the change is the conservative trajectory of courts since 9/11. In light of this trend, lawyers such as those who attended last weekend's Atlanta conference are trying new approaches, including using human rights law in their briefs.
The cases in which these new approaches have been tried range over a variety of legal areas: housing, welfare, immigration, the death penalty, detentions, women's issues, gay issues, and children's issues. And the legal strategies themselves are diverse.
Here are just a few: Some attorneys in discrimination cases are citing the International Convention on the Elimination of All Forms of Racial Discrimination, which allows a party to show disparate impact without having to prove intent, and thus goes further to remedy discrimination than U.S. constitutional law does. Other attorneys have resorted to calling UN Special Rapporteurs to investigate Midwestern prison conditions for violations of international standards.
A third source of the change is the increasing use by plaintiffs of a federal statute called the Alien Tort Claims Act (ATCA). The Act allows foreigners to bring complaints of violations of the "laws of nations" to U.S. courts for adjudication - as columns for this site by Anthony Sebok and by Joanne Mariner have explained in detail.
The ATCA's use of the phrase "law of nations" refers to international and foreign standards of inhumane behavior, such as those prohibiting torture and forced labor. To figure out exactly what the law of nations is, U.S. courts must thus consult the enabling statutes and decisions of human rights tribunals, as well as international human rights covenants and declarations.
The Justice Department is currently attempting to roll back history and precedent by challenging this type of use of the ATCA - for example, in a recently-filed amicus brief in Doe v. Unocal. (This case, currently pending before the Ninth Circuit, addresses the treatment of villagers allegedly forced by the Burmese military to construct giant gas pipelines through the jungles.)
But the law remains on the books, and has long been interpreted to allow just the kind of suits that have recently been brought pursuant to it.
A New Approach: Human Rights Are Not Only for Aliens, But for Citizens Too
The irony of the ATCA, however, is that it allows non-citizens to draw on international law when U.S. citizens cannot. But, of course, U.S. citizens' and residents' human rights can be - and have been - violated too.
Still, Americans have typically thought of human rights issues as conditions that arise abroad - say, political repression in Liberia or women's living conditions in Iran. Yet American issues are human rights issues too.
A conceptual shift is happening and it's high time. The shift means that lawyers and others are finally acknowledging that America is part of a world community, and is responsible to its citizens to the same extent as other members of the family of nations. This shift is not the first time lawyers have looked beyond their borders: England and South Africa, for example, have been drawing upon the international legal order for years, and could teach the U.S. about how to make this process function.
Thus, if children are hungry in Michigan, or disproportionate numbers of racial and ethnic minorities are being stopped on Arizona highways, or legal or illegal immigrants in a factory in Los Angeles are unfairly treated, those are human rights issues, just as surely as if those issues had occurred abroad.
The Unpersuasive Arguments Against Invoking International or Foreign Law
It is easy to imagine arguments against this new approach. Critics may complain that judges will not understand the foreign or international law in a brief; they may not know where to find these foreign cases to verify them; they may have access only to translations that blur legal nuance. But these are solvable problems that have to do with improving law libraries and online database access to foreign law, and the quality of legal translation.
Meanwhile, critics may also complain that the decisions themselves may be inapplicable to the American system, for they may be based in different political and legal frameworks. They may also simply be bad decisions that the U.S. should not follow. But of course, there is no reason judges cannot take into account these factors when they consider how much weight, if any, to give to the decisions.
Finally, critics like Robert Bork and Attorney General John Ashcroft claim that the movement towards referring to international or foreign decision in American courts will harm American law, opening the door to legal absurdities. In essence, they ask, "Why should we let a court of dubious authority in Chechnya or Ethiopia tell the most powerful country in the world what to do?"
But the reality is that high courts in many advanced nations and regions have spent decades considering many of the same legal problems as America's courts. Thus, the question is best reframed: Why should American judges not draw inspiration from their foreign colleagues' wisdom and work?
Why Advocates Should Press Forward, Despite the Hostile Climate
Besides these criticisms, the movement I have described is likely to face other considerable obstacles. The current political climate seems to shun anything from outside the U.S.'s borders. The Bush Administration has shown only disdain for most international agreements and for the need for international cooperation. And the Administration seems uninterested in the U.N. except insofar as the U.N. is willing to work as, in effect, the Administration's subcontractor, devoting itself to carrying out the Administration's own political agenda.
But despite these obstacles, members of the new movement shouldn't lose hope. Rome wasn't built in a day - and the law isn't either. For example, prior to the groundbreaking ruling in Brown v. Board of Education, the NAACP Legal Defense Fund slowly brought a long series of cases to lay the foundation for their larger desegregation efforts.
Moreover, for more than fifty years before Brown, African-Americans had been filing claims of instances of discrimination. These hundreds of individual cases may have created the legal and political climate, as well as created the legal precedent, for larger desegregation cases like Brown.
Those who advocate referring to international and foreign law in American cases may similarly have to wait. But last Supreme Court Term suggests that history will likely vindicate their efforts.