International Law and U.S. Courts by Peter Charles Choharis

International Law And U.S. Courts
By: Peter Charles Choharis

 This week the United States Senate will vote on the nomination of Judge Sonia Sotomayor to be an Associate Justice of the United States Supreme Court.  Although few doubt she’ll be confirmed, among the more curious charges raised by her opponents is that she will rely too much on international law when interpreting American law, especially the U.S. Constitution.  
 
 Anyone with even a passing familiarity with the U.S. Constitution knows that international law is an integral part of the laws of the United States.  All three branches of government have a role in either formulating or interpreting international law.  The President has the power to make treaties with the advice and consent of the Senate, while the power of the federal courts extends to all cases arising under the Constitution, federal statutes, and treaties. 
 
 In fact, in addition to the Constitution and federal law, “all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby”—unless the Constitution or federal law directly conflicts with a treaty provision.
 
 Beyond treaties, the Founders also recognized customary international law, which outlaws things like piracy and, most people would argue today, terrorism and genocide.  Specifically, Article I, Section 8 gives Congress the power, among other things, “To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations.” 
 
 Indeed, in 1820, in United States v. Wheat, the U.S. Supreme Court affirmed its ability to ascertain customary international law by consulting “the general usage and practice of nations”—a fair reflection of the Founders’ intent that U.S. courts apply customary international law when necessary.
 
 Nonetheless, in recent years a number conservative critics have attacked international law and its application by U.S. courts.  Some question whether international law can be ascertained by courts, and worry that judges will use imprecise international legal doctrines to further their “judicial activism.”  Others reject the notion that international law can limit U.S. sovereignty, because it is a body of law that is not formulated exclusively within the United States by its elected officials.  Some have even attacked judges for referencing international law or the laws of other nations in their judicial opinions—again, ostensibly because foreign law should not govern U.S. courts or even aid judges in interpreting U.S. statutes or the Constitution.
 
 With this agenda in mind, some conservative commentators are using Judge Sotomayor’s nomination to the U.S. Supreme Court to attack the use of international law in American jurisprudence.  Unfortunately for them, despite her many years as a federal trial and appellate judge, her judicial record interpreting international law is sparse.  Her dissent in an international custody case, Croll v. Croll, discussed the Hague Convention on the Civil Aspects of Child Abduction, which was implemented in the United States by a statute called, “The International Child Abduction Remedies Act.”  In Croll, Judge Sotomayor argued that the trial court had authority to order Mr. Croll’s daughter back to Hong Kong where a court had issued a custody order that prohibited removing the child from Hong Kong without the father’s permission.  In doing so, Judge Sotomayor looked to another international treaty to which the U.S. is a party, the Vienna Convention on the Law of Treaties, to help interpret the meaning of “rights of custody” under the Hague Convention.  She also noted that courts in England, Australia, Israel, and other countries had reached similar interpretations of the Hague Convention, and explained why she rejected the reasoning of courts in France and Canada that had not.  
 
 Whatever one thinks of the correctness of her position, Judge Sotomayor’s interpretation and the way that she reached her conclusions hardly constitute a radical or unwarranted application of international law.  To the contrary, the case required the Second Circuit to interpret both the Hague Convention, a treaty to which the United States and eighty other countries are a party, and a Hong Kong court’s child custody order.  In fact, two months ago, the United States filed an amicus brief in Abbott v. Abbott asking the Supreme Court to review the issue and to adopt Judge Sotomayor’s interpretation of the Hague Convention.
 
 Undeterred by any evidence in her judicial record that Judge Sotomayor would improperly defer to foreign or international law when interpreting U.S. law, some critics have resorted to a speech a few months ago in which she reportedly said that, although foreign and international law are not binding, they do constitute one source of ideas for judges to consider, and “if the idea has validity, if it persuades you, si te convince, then you are going to adopt its reasoning.”  This view is shared by Justices Breyer and Ginsburg, to name just a few.  
 
 The value of a judge being open to ideas is so unremarkable a proposition that to criticize it borders on silly.  Courts regularly cite novels (Through the Looking Glass is popular), poems, songs, and a host of other materials to make their opinions seem erudite or entertaining.  Sometimes, judges look to foreign rulings not only as a source of reasoning to follow, but also as something to avoid or disapprove of.  Foreign judicial rulings, foreign statutes, and international law are all sources of information and experience that courts are free to adopt, reject, or ignore as they see fit.

  Indeed, even someone who ostensibly practices original intent to interpret the U.S. Constitution may reference old English cases, 16th century British statutes, and even European (including French) civil law to interpret the Sixth Amendment’s right to confront a witness, as Justice Scalia did in Crawford v. Washington.
 
 For some conservatives to maintain that referencing foreign legal opinions or statutes or international law generally would undermine the Constitution reflects a profound ignorance about the nature of judging—whether practiced by conservatives or liberals, wise Latinas or Italian-Americans.
 
Peter Charles Choharis is a Senior Fellow with the American Security Project and the founder of Choharis Global Solutions, an international law and consulting firm. He is also a Visiting Scholar at the George Washington University School of Law and the author of numerous popular and scholarly articles on international law.

Share and Enjoy

•