Human rights discourse in the United States focuses primarily on enforcing human rights abroad. However, human rights concerns are not inherently extraterritorial. Rather, it is the responsibility of every government – including the United States – to guarantee the basic human rights of every person within its territory. One way to fulfill this global responsibility is by incorporating international human rights norms – which have been agreed upon by all developed nations – into domestic jurisprudence.
According to Harold Koh, former Dean of Yale Law School who was recently confirmed to serve as the State Department's top legal advisor, "[F]ederal judges have become an increasingly critical link between the international and the domestic legal spheres... [by helping] internalize international legal norms into U.S. domestic law through a range of interpretive techniques."
However, some Americans remain skeptical that judicial recourse to international law would undermine U.S. sovereignty and harm American citizens. While some criticize Koh for using "international and foreign law to deprive Americans of our rights as American citizens," a closer look at the use of international human rights law reveals that these criticisms are ill-conceived, and reveals that the use of international human rights law is GOOD for America and its citizens.
Argument 1: Courts might prioritize international law over U.S. law and undermine U.S. sovereignty.
First, skeptics of international law, like John Bolton, Former President George W. Bush's Ambassador to the United Nations, fear that U.S. courts might put international law above the Constitution and thus undermine U.S. sovereignty. However, proponents of using international law as a guide domestically do not argue that international law should take precedence over the Constitution. Rather, proponents believe U.S. courts should (as at times they already do) look to international human rights norms when interpreting and applying the Constitution. For example, when the U.S. Supreme Court abolished the juvenile death penalty in 2005, the Court noted that "[t]he United States is the only country in the world that continues to give official sanction to the juvenile penalty.
It does not lessen fidelity to the Constitution or pride in its origins to acknowledge that the express affirmation of certain fundamental rights by other nations and peoples underscores the centrality of those same rights within our own heritage of freedom."[1] Furthermore, the Supreme Court has explicitly instructed federal courts to exercise great restraint on those rare occasions when they are asked to directly apply international human rights law, so as to not undermine State, Congressional or Presidential power within the democratic process.
It does not lessen fidelity to the Constitution or pride in its origins to acknowledge that the express affirmation of certain fundamental rights by other nations and peoples underscores the centrality of those same rights within our own heritage of freedom."[1] Furthermore, the Supreme Court has explicitly instructed federal courts to exercise great restraint on those rare occasions when they are asked to directly apply international human rights law, so as to not undermine State, Congressional or Presidential power within the democratic process.
Skeptics who argue that enforcing international human rights norms in U.S. courts will undermine U.S. sovereignty also overlook the facts that: (1) the United States was founded on human rights ideology (the Declaration of Independence rests on the human rights principle that 'all men are created equal'), and (2) the United States played a lofty role in developing international human rights law by encouraging other nations to internalize human rights norms.
After World War II, the United States took a leading role in developing major human rights documents when Franklin Roosevelt inspired the drafting of the Universal Declaration of Human Rights (UDHR). First Lady Eleanor Roosevelt, who chaired the original United Nations Human Rights Commission, furthered the role of the United States on the international stage by overseeing the drafting of that crucial document. According to the scholar Louis Henkin, the human rights norms encompassed in the UDHR have become international legal norms that "are in their essence American Constitutional rights protected around the world."[2] Thus, there is no reason to fear allowing international human rights law to come full circle and fit back into the democratic American society from whence it emerged.
After World War II, the United States took a leading role in developing major human rights documents when Franklin Roosevelt inspired the drafting of the Universal Declaration of Human Rights (UDHR). First Lady Eleanor Roosevelt, who chaired the original United Nations Human Rights Commission, furthered the role of the United States on the international stage by overseeing the drafting of that crucial document. According to the scholar Louis Henkin, the human rights norms encompassed in the UDHR have become international legal norms that "are in their essence American Constitutional rights protected around the world."[2] Thus, there is no reason to fear allowing international human rights law to come full circle and fit back into the democratic American society from whence it emerged.
Argument 2: Upholding international human rights law in U.S. courts could hurt American citizens.
Second, skeptics argue that upholding international human rights law will hurt U.S. citizens by "handicap[ing] America's efforts to defend itself" and "harm[ing] American business." In reality, U.S. security and business interests demand reciprocity – if we expect humane treatment of U.S. citizens abroad, we should ensure such treatment of foreign nationals in the U.S. By condoning – either explicitly or implicitly - violations of international law, the United States undermines its ability to demand respectful treatment of U.S. citizens overseas.
For example, due to U.S. failure to thoroughly address allegations of human rights violations, Spain considered prosecution of former U.S. officials for torture. The ability of another country to charge U.S. officials is beyond the scope of this entry, suffice to say that had the the U.S. government not ignored international human rights norms as a general policy, U.S. citizens acting within that political framework would not have been in such an undesirable situation.
Along with protecting the interests of U.S. citizens abroad, domestically enforcing international human rights norms protects U.S. citizens from violations of human rights by their own government. Six years ago, The New York Times dubbed Jack L. Goldsmith, a former law professor at the University of Chicago, as "one of the brightest stars in the conservative legal firmament," and "a leading proponent of the view that international standards of human rights should not apply in cases before U.S. courts."
A mere nine months after becoming legal advisor to the Pentagon in 2003, however, Goldsmith resigned from the prestigious position and began to speak publicly on how the Bush Administration violated both domestic and international human rights law. According to Goldsmith, the former Administration's pre-emptive approach to the "War on Terror" was an attempt to expand the limits of presidential power and simultaneously immunize government officials from international human rights violations and war crimes.
Goldsmith's exposure to high-ranking intelligence regarding human rights violations led the renowned conservative opponent of international law to recognize that enforcing international human rights law in the United States is necessary to fill domestic legal gaps and loopholes the government might exploit to harm American citizens. For example, respect for international human rights law could have protected U.S. citizens from the discretionary use of wiretapping, ethnic profiling, illegal detention of suspected terrorists, and attempts to justify torture.
A mere nine months after becoming legal advisor to the Pentagon in 2003, however, Goldsmith resigned from the prestigious position and began to speak publicly on how the Bush Administration violated both domestic and international human rights law. According to Goldsmith, the former Administration's pre-emptive approach to the "War on Terror" was an attempt to expand the limits of presidential power and simultaneously immunize government officials from international human rights violations and war crimes.
Goldsmith's exposure to high-ranking intelligence regarding human rights violations led the renowned conservative opponent of international law to recognize that enforcing international human rights law in the United States is necessary to fill domestic legal gaps and loopholes the government might exploit to harm American citizens. For example, respect for international human rights law could have protected U.S. citizens from the discretionary use of wiretapping, ethnic profiling, illegal detention of suspected terrorists, and attempts to justify torture.
These are but a few of the reasons Americans ought not fear judicial recourse to international human rights law. Rather, we should embrace international human rights law to protect national and personal interests, and to demonstrate to the world that the U.S. remains a leader in fostering and promoting human rights for all world citizens.
-Annie Johnston, International Justice Project Legal Intern
[1] Roper v. Simmons, 543 U.S.
[2] Louis Henkin, How Nations Behave: Law and Foreign Policy, in Int'l Law 25, 24 (Barry E. Carter, Phillip R. Trimble, & Allen S. Weiner 5th ed., 2007).
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