International human rights and United States law: predictions of a courtwatcher (2001)

THE KATE STONEMAN PROFESSORSHIP LECTURE For number of years, international law scholars like Harold Koh and activists like Dorothy Thomas have admonished domestic civil rights lawyers to international law home.(1) Domestic activism is needed, according to Thomas, because the United States government has systematically tried to shield itself from international accountability by encouraging a kind of learned insularity of civil rights groups.(2) As result, civil rights groups that are adamant in calling for domestic reforms to address race and gender discrimination and other civil rights issues have rarely framed those demands within the international context of human rights, and have seldom linked arms with groups outside the United States in pressing those claims. In large part, the approach of civil rights groups has been pragmatic. Civil rights lawyers have limited budgets, limited human resources, and must make hard decisions on how to focus their work. Until relatively recently, groups like the ACLU, the NAACP Legal Defense and Education Fund, and NOW Legal Defense and Education Fund, as well as other public interest legal groups, looked almost exclusively to litigation as the driving force of their work to expand and protect civil rights in this country.(3) Legislative and media efforts have expanded in the past few years (and those efforts are more likely to have international components), but litigation is still at the core of civil rights legal work.(4) Like other litigators, civil rights groups advocates look at judges, and assess what they will find persuasive. International law has not fit that criteria. Indeed, some litigators have been concerned that citations to international law would signal an essential weakness in their case under domestic law. That status quo is rapidly changing, however, and that is what I want to explore with you today. First, I want to bring you up to date on the Supreme Court's rather sparse record of looking to international human rights law in ruling on domestic civil rights issues. Second, I will explain why it is important that the Supreme Court begin routine and regular examination of international and comparative law norms when it considers domestic civil rights issues. To be clear, I am not arguing that courts should cite international law as controlling authority, though that may sometimes be appropriate, but simply as persuasive authority. It seems to be small step, but surprisingly it is one that the courts have yet to embrace. To support this argument, I will describe several analogous situations where United States courts have changed their approaches to decision-making in response to changes in society. Finally, I will discuss two recent Supreme Court cases to assess what impact, if any, this new approach might have on civil rights decisions rendered by United States courts. INTERNATIONAL AND FOREIGN LAW IN UNITED STATES COURTS The cases themselves tell the story. The Supreme Court famously ruled in The Paquete Habana that [i]nternational law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction,(5) but that principle has been very selectively applied. In few areas, courts regularly look abroad. For example, the United States law on political asylum and refugee status specifically incorporates international norms, which federal courts construe and apply on daily basis.(6) Similarly, both federal and state courts dealing with foreign defendants, particularly foreign sovereigns, often look to international legal doctrines and other countries' practices, as do courts examining issues involving the extent of United States' jurisdiction on the high seas.(7) In contrast, international human rights norms are cited much more rarely. Amicus briefs addressing international human rights law--like that filed in 1982 in Bob Jones University v. …