Foreign law - a friend of the court: an argument for prudent use of international law in domestic, human rights related constitutional decisions.

• Author: Chandler, Jason

1. INTRODUCTION

   The basic tenets of human rights law do not exist in the vacuum of individual nations and local constitutions. (1) Their persuasive impact transcends borders. (2) The broad, global response to basic human rights law has a symbiotic relationship with narrow, domestic human rights decisions. (3) Relying upon international human rights laws and norms as persuasive authority when deciding domestic legal issues should not only be permissible; it should be encouraged. (4)

   This note argues that U.S. courts, particularly the Supreme Court, should utilize international law as persuasive authority within the context of human rights related decisions. (5) Part II examines seminal U.S. Supreme Court cases in which international human rights law was a persuasive force, and contrasts treatment of foreign law in the Canadian and Australian courts. (6) In Part III, this note traces the history of international human rights law as persuasive authority in both Supreme Court and state decisions. (7) Part IV provides an analysis of why and how international human rights laws should be used as persuasive authority in the United States. (8) Finally, Part V concludes that consideration of foreign law within the framework of human rights related legal opinions aids the constitutional decision-making process in a manner similar to that of the amicus brief. (9)

2. FACTS

   The debate regarding what, if any, role international law should play in human rights cases in the United States sharpened in recent years. (10) The subject is prominently featured in recently decided U.S. Supreme Court cases, as well as the confirmation hearing of Justice Sonya Sotomayor. (11) In the last decade, three influential Supreme Court decisions applied international human rights norms as persuasive authority, though not without controversy or condemnation. (12) The debate over the use of international law in domestic courts is not unique to the United States. (13) Countries around the world, including Canada and Australia, grapple with the proper place for international human rights law within their domestic constitutional decision making processes. (14)

   1. Impact of International Human Rights Law on Juvenile Life Without Parole Cases

      In 2009 the Supreme Court heard arguments in two cases, Graham v. Florida and Sullivan v. Florida, to determine the constitutionality of a juvenile life without parole (JWOP) sentence. (15) During the progression of each case, the petitioner utilized international law to support the argument that a JWOP is unconstitutional in non-homicide cases. (16) The thrust of the international law argument in both cases was that petitioner's sentence is "unusual" because few states would issue the same punishment for a juvenile non-homicide offense, nor would the sentence be imposed anywhere else in the world. (17) In May 2010, the Graham Court employed the aforementioned international law analysis to support its conclusion that the sentencing practice is unconstitutional. (18)

      The international law portion of the petitioner's argument in Graham proceeds in two distinct steps: 1) establish foreign law as a factor that the Court uses when deciding human rights related issues, specifically in Eighth Amendment cases and 2) use international legal practices to underscore the "unusual" nature of a JWOP sentence. (19) Petitioner pointed out that the Court considers several factors to determine whether a sentence violates the Eighth Amendment, including: "a comparison of the sentence imposed to evolving standards of decency as reflected in the laws and practices of the States and the international community." (20) The brief was clear that international law is just one part of the whole, stating that no factor is dispositive in the Court's decision on the proportionality of a JWOP sentence. (21) Petitioner's argument proved to be effective, as it mirrored the Court's subsequent reasoning in the case's ultimate disposition. (22)

      Sullivan featured the international law argument in a far less prominent manner than in Graham. (23) Petitioner devoted just one paragraph to prevailing foreign legal standards. (24) Petitioner used international law to illustrate the stark difference in JWOP sentencing practices between the United States and the rest of the world. (25) The thrust of the international law argument in Sullivan revolved around the potential influence of international treaties. (26) Petitioner pointed out that JWOP sentences are banned by international conventions signed by almost every member of the world community of nations, with the exception of the United States. (27) The Court in Graham noted that while the U.S. is not bound by any international agreement prohibiting JWOP sentences, the existence of those agreements underscores international condemnation of the practice. (28)

   2. Foreign Law Debate in Sotomayor Confirmation Hearings

      During her confirmation hearings in July 2009, Justice Sonya Sotomayor was asked several times to explain her position on the use of foreign law as a part of the judicial decision making process. (29) Four different members of the Senate Judiciary Committee questioned Justice Sotomayor about the role of international law. (30) Throughout her testimony, Justice Sotomayor consistently maintained that foreign law could not be used as a holding, as precedent, or to interpret the Constitution or statutes. (31)

      Justice Sotomayor's answers regarding whether foreign law should enter the mind of a judge on any level were predictably more evasive. (32) On more than one occasion, she characterized her opinion on the matter as in line with statements made by Justice Ruth Bader Ginsburg, suggesting judges use foreign law to build up their story of knowledge about legal thinking. (33) She did not, however, provide any concrete description of just how foreign law should impact a judge's decision-making process. (34) Senator John Cornyn presented an effective question by asking why one would cite foreign law at all if it is to be used only as a function of overall knowledge and not as part of a judge's legal determination of a case. (35) Justice Sotomayor responded that she had never cited foreign law and gave no opinion as to why other judges utilize international citations. (36)

   3. United States Reliance on International Law in Seminal Human Rights Cases

      In the last ten years, the U.S. Supreme Court relied on international human rights law as persuasive authority in three landmark cases. (37) In each case, the Court cited foreign authority in conjunction with a national human rights consensus in the United States, to bolster its decision holding a constitutional violation. (38)

      The method used to incorporate international law in these decisions provides the basic framework for how foreign authority is used in U.S. case law today. (39)

      1. Roper v. Simmons

         The Court in Roper held that the execution of juveniles, individuals who were under eighteen years of age at the time they committed their capital offense, is a violation of the Eighth and Fourteenth Amendments. (40) In reaching this conclusion, the Court detailed evidence of a national consensus against the death penalty for juveniles and punctuated that argument by stating their decision is confirmed by the reality that the United States was the only remaining country to give official sanction to the juvenile death penalty. (41) As justification, the Court indicated that for at least fifty years it has referred to international authorities as instructive aids for its interpretation of the Eighth Amendment. (42) Writing for the majority, Justice Anthony Kennedy opined:

         It does not lessen our fidelity to the Constitution or our pride in its origins to acknowledge that the express affirmation of certain fundamental rights by other nations and peoples simply underscores the centrality of those same rights within our own heritage of freedom. (43) While not the first Supreme Court case to employ international law in this fashion, Roper has become a lightning rod in the foreign law debate. (44) Roper is the primary source for advocates of incorporating international law into human rights related decisions. (45) Both Graham and Sullivan based their worldwide human rights argument almost exclusively on Roper's inclusive approach to foreign authority. (46) Roper underscored the sharply divided debate, highlighted by Justice Antonin Scalia's vigorous condemnation of the reliance on international law as persuasive authority:

         [T]he basic premise of the Court's argument--that American law should conform to the laws of the rest of the world--ought to be rejected out of hand. In fact the Court itself does not believe it.... To invoke alien law when it agrees with one's own thinking, and ignore it otherwise, is not reasoned decision-making, but sophistry. (47) 2. Atkins v. Virginia

         In 2002, the Court in Atkins relied on international authority to support its conclusion that the Eighth Amendment prohibits executions of mentally retarded criminals. (48) As in Roper, the Atkins decision first described a national consensus condemning the practice and then noted that the world community also overwhelmingly disapproved. (49) The Court emphasized that no factor, particularly international authority, was dispositive in its decision. (50) The consistency of worldwide opinion served only to support the Court's conclusion that there is a consensus among foreign law, professional organizations, and state governments. (51)

      3. Lawrence v. Texas

         International human rights law was featured in Lawrence, supporting the Court's finding that making it a crime for same sex persons to engage in certain sexual conduct was unconstitutional. (52) In overturning its own precedent the Court reasoned: "the right petitioners seek in this case has been accepted as an integral part of human freedom in many other countries." (53) The Court's reasoning in Lawrence does not follow the same...