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International Human Rights Law in United States Courts: a Comparative Perspective

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International Human Rights Law in United States Courts: a Comparative Perspective Michigan Journal of International Law Volume 14 Issue 1 1992 International Human Rights Law in United States Courts: A Comparative Perspective Anne Bayefsky University of Ottawa Joan Fitzpatrick University of Washington Follow this and additional works at: https://repository.law.umich.edu/mjil Part of the Comparative and Foreign Law Commons, Courts Commons, and the International Law Commons Recommended Citation Anne Bayefsky & Joan Fitzpatrick, International Human Rights Law in United States Courts: A Comparative Perspective, 14 MICH. J. INT'L L. 1 (1992). Available at: https://repository.law.umich.edu/mjil/vol14/iss1/1 This Article is brought to you for free and open access by the Michigan Journal of International Law at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Michigan Journal of International Law by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. INTERNATIONAL HUMAN RIGHTS LAW IN UNITED STATES COURTS: A COMPARATIVE PERSPECTIVE Anne Bayefsky and Joan Fitzpatrick* Introduction ................................................ 2 I. Customary Law ....................................... 3 A. The Basic Rule in the United States ............... 3 B. The Impact of Using Customary International Law in United States Courts ............................ 5 1. Specific Incorporation of Customary International Law by United States Law ........ 6 2. Founding a Right of Action .................... 18 3. An Aid to Interpretation of United States Law 23 C. Problems in the Use of Customary Law in United States Courts ...................................... 27 D. A Comparative Analysis ........................... 33 1. Canada ........................................ 34 2. United Kingdom ............................... 35 3. Conclusion .................................... 38 II. Conventional International Law ........................ 41 A. The Basic Rule in the United States ............... 41 B. The Self-Executing Caveat in the United States ..... 42 C. Who Can Implement International Conventions in the United States .................................. 43 D. Methods of Using Conventional International Law in United States Courts ........................... 43 1. Interpretation Favoring Consistency with International Law ............................. 43 2. The Issue of Implementation ................... 44 3. The Issue of Whether the Treaty is Self- Executing ..................................... 45 E. The United States Situation - Conclusion ........... 47 F. A Comparative Analysis ........................... 47 Anne Bayefsky is Associate Professor of Law, University of Ottawa; B.A., M.A., LL.B., University of Toronto; M.Litt., Oxford University. Joan Fitzpatrick is Professor of Law, Univer- sity of Washington; B.A., Rice University; J.D., Harvard Law School; Dipl. in Law, Oxford. The authors gratefully acknowledge the comments made on earlier drafts by Daniel Bodansky, Sandra Coliver, Stewart Jay, Anthony Lester QC, and Stephen Schneebaum. Michigan Journal of InternationalLaw [Vol. 14:1 1. Canada ........................................ 48 2. United Kingdom ............................... 53 3. Conclusion .................................... 71 III. Non-binding International Law ......................... 72 A. In the United States Supreme Court ............... 72 B. In United States Lower Courts ..................... 76 C. A Comparative Analysis ........................... 80 IV. The Countermajoritarian Specter ....................... 82 Conclusion .................................................. 89 INTRODUCTION Claimants to the protection of international human rights norms have asked American courts to enforce, or at least take account of, those norms with increasing frequency and in a striking variety of con- texts. The response of the courts has been largely, though not uni- formly, disappointing.' The few modest successes have provoked a backlash among some academic commentators and policy-makers. 2 The barriers that stand in the way of domestic enforcement of in- ternational human rights law often have poor foundations. Even those courts that do accept such international norms seldom offer complete bases for their reliance. At the root of the problem is the indefinite character of international law, both customary and conventional, and the lack of agreement or understanding of its proper role in the domes- tic legal order. Real or imagined confrontations with the political branches of government add further complications when the judiciary uses human rights norms to protect individuals. Both the specter of countermajoritarianism and the legitimacy of non-interpretive judicial review lurk in the background, often unacknowledged. The opponents of judicial enforcement of international human rights norms ground their opposition on a rather vaguely articulated conception of democracy.3 Their concerns focus on the lack of clear 1. The key successes have been Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980); Forti v. Suarez-Mason, 672 F. Supp. 1531 (N.D.Cal. 1987), modified, 694 F. Supp. 707 (N.D.Cal. 1988); Von Dardel v. U.S.S.R., 623 F. Supp. 246 (D.D.C. 1985), vacated, 736 F. Supp. 1 (D.D.C. 1990); Fernandez v. Wilkinson, 505 F. Supp. 787 (D.Kan. 1980), aff'd on other grounds, 654 F.2d 1382 (10th Cir. 1981). 2. See, e.g., John M. Rogers, The Alien Tort Statute and How Individuals "Violate" Interna- tional Law, 21 VAND. J. TRANSNAT'L L. 47 (1988); Phillip R. Trimble, A Revisionist View of Customary InternationalLaw, 33 UCLA L. REv. 665 (1986); Arthur M. Weisburd, Customary InternationalLaw: The Problem of Treaties, 21 VAND. J. TRANSNAT'L L. 1 (1988); Note, Agora: May the President Violate Customary InternationalLaw? 80 AM. J. INT'L L. 913 (1986), 81 AM. J. INT'L L. 371 (1987); Brief for the United States as Amicus Curiae, Trajano v. Marcos, No. 86- 2448 (9th Cir. July 10, 1989) (copy on file with Michigan Journal of InternationalLaw). 3. See, e.g., Trimble, supra note 2; Tel-Oren v. Libyan Arab Republic, 726 F.2d 774 (D.C. Fall 1992] Int'l Human Rights Law acquiescence in the asserted norms by the elected branches of govern- ment. In response, some commentators concede that judicial invoca- tion of international norms for the protection of individual rights is anti-democratic but argue, nevertheless, that it is desirable.4 We sug- gest that the international law-making process through which human rights norms have evolved is consistent with republican traditions in American government and thus not outside the realm of legitimate judicial reference. This article will catalogue the various contexts in which United States courts have agreed or refused to follow international human rights law, treating separately the larger number of cases concerning customary norms, the relatively small group of cases relating to human rights treaties, and the cases in which international norms are referenced without regard to their status as binding law. In each of these sections we will analyze areas of confusion, disagreement, or under-development in international legal doctrine that impede the pro- ductive use of human rights norms by domestic courts. We will also compare the approaches of United States courts with the attitudes taken by courts in other democracies that share a common English legal heritage. The experience of Canada and the United Kingdom indicates that greater acceptance of international human rights stan- dards by the political branches of government, as manifested both by ratification of human rights treaties and by the adjudication of individ- ual complaints by treaty implementation bodies, does not necessarily translate into greater and more principled acceptance of international human rights norms by domestic courts. Finally, we will confront di- rectly the underlying factor debilitating the judicial use of interna- tional human rights law - namely, the countermajoritarian issue. I. CUSTOMARY LAW A. The Basic Rule in the United States Customary international law involves a consistent practice in which states engage out of a sense of legal obligation.5 Unlike treaties, which bind only those states that ratify or accede to them, customary law binds all states that have not consistently objected to the norm Cir. 1984), cert. denied, 470 U.S. 1003 (1985) (concurring opinions of Bork & Robb, JJ.); Stan- ford v. Kentucky, 492 U.S. 361 (1989) (Scalia, J.). 4. See, e.g., Louis HENKIN, THE AGE OF RIGHTS 105 (1990), "To the framers, the fact that judicial review was undemocratic was not critical, indeed hardly relevant: the founders were republicans not democrats." 5. RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES § 102 (1987) [hereinafter RESTATEMENT (THIRD)]. Michigan Journal of InternationalLaw [Vol. 14:1 during the process of its emergence. 6 Because the United States has been reluctant to ratify human rights treaties, particularly those with a potential domestic impact,7 the nature of customary human rights law is the key issue relating to the enforceability of human rights norms in United States courts. The RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES sets forth the basic principles defining cus- tomary international law and its incorporation into the "law of the land" pursuant to Article VI of the Constitution.8 In the oft-quoted words of the Supreme Court in the case of The Paquete Habana: 6. See generally, Ted L. Stein, The Approach
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