Vol. 27 No.7 (September 2017) pp. 113-116THE US SUPREME COURT AND THE DOMESTIC FORCE OF INTERNATIONAL HUMAN RIGHTS LAW, by Stephen A. Simon New York: Lexington Books, 2016. 222pp. Cloth $85.00. ISBN: 1498534708.
Reviewed by Ilya Somin, Professor of Law, George Mason University. Email: isomin@gmu.edu.
Should international human rights law ever be given the force of domestic law in the United States? If so, when? These questions are increasingly the object of debate in the legal and political community. They also come up in a variety of important cases that the Supreme Court has considered in recent years. Stephen Simon’s book is an excellent introduction to these controversies and the arguments deployed by contending scholars and jurists.
As Simon explains, “internationalists” argue that the United States can both promote universal principles and more effectively advance its own national interests by incorporating international human rights norms into its domestic law. By contrast, their “sovereignist” opponents are skeptical about the merits of much of international human rights law. They fear that giving human rights domestic force would erode American autonomy, undermine democratic self-government, and saddle the U.S. with dubious laws.
Simon expertly traces the clashes between these schools of thought in a series of U.S. Supreme Court cases over the last two decades, focusing on four areas: the application of customary international law through the Alien Tort Statute, the extent to which treaties are incorporated into domestic law, the scope of international law constraints on U.S. policies in the War on Terror, and the use of foreign law in interpreting the parts of the U.S. Constitution. While the each of these fields raises distinct issues, Simon shows important commonalities. For example, the same Supreme Court justices who are skeptical of the idea that treaties should be presumed to be “self-enforcing” in American courts, also take a narrow view of the extent to which international treaties limit wartime executive power, and reject the utility of using foreign and international law to interpret the Constitution.
As Simon emphasizes, the dispute between the two sides encompasses disagreements over both the substantive merits of international human rights law and the process by which it is produced. Internationalists argue that the international human rights regime includes a variety of valuable principles that the United States would do well to follow. They also contend that, despite some flaws, the process by which international human rights law is produced is generally a good one – representing the considered judgment of a diverse and increasingly sophisticated global community.
Sovereignists, by contrast, are skeptical about both the substantive and procedural aspects of international law. Substantively, they doubt that [*114] international human rights norm on such issues as the treatment of enemy combatants, the death penalty, and “positive” welfare rights are preferable to domestic American law. On the procedural side, they point to the influence of nondemocratic regimes and often-unaccountable elites as evidence that much international law lacks any democratic pedigree, or other assurance of quality.
The greatest strength of Simon’s book is the way he carefully traces these basic conflicts through a range of different issues. He is also scrupulously fair in conveying both sides’ arguments. That is not an easy virtue to achieve on issues that are as contentious and ideologically divisive as these are. The book would be an excellent introduction to the subject matter it covers for undergraduates, law students, and interested laypeople alike.
Despite the heated controversy over the issue, Simon concludes that, so far, the Supreme Court has only given very limited scope to international human rights law: “Even within the very limited number of areas in which the Court has engaged the subject at all, its responses have essentially ranged from refusing to give force to international human rights law, to recognizing its force only within carefully defined limitations” (p. 174).
For example, the Supreme Court has adopted a strong presumption against “self-enforcement” of treaties in U.S. courts, unless Congress has specifically legislated on the matter, thereby barring enforcement of international treaties in cases where state governments prosecute foreign nationals for alleged crimes (see chapter 3). Similarly, the Court has engaged in only very limited reliance on foreign and international law in interpreting the Constitution (mostly in death penalty cases under the Eighth Amendment). And, even in those cases, the foreign material likely did not have a decisive impact on the results (see chapter 5).
In cases involving challenges to the Bush Administration’s detention and trial of prisoners captured in the War on Terror, international law principles have played a more significant role, but they were still secondary to American statutory and constitutional rules (see chapter 4). Although the text of the Alien Tort Statute seems to permit U.S. courts to hear a wide range of cases involving violations of “the law of nations,” the Court has interpreted the scope of the Act narrowly, strictly limiting the extent to which lawsuits can be brought on the basis of customary international law and adopting a strong presumption against extraterritorial application of the ATS (see chapter 2).
As Simon recognizes, this record of fairly limited use of international human rights law does not mean that internationalists’ hopes, and sovereignists’ fears, are entirely baseless. As is often the case with legal change, a modest beginning could turn out to be the entering wedge for far more extensive doctrinal developments.
While Simon’s analysis is generally thorough and insightful, it does suffer from a critical omission. In describing sovereignist concerns about intrusions on U.S. autonomy, he overlooks the crucial dimension of federalism. Many potential intrusions of international human rights law into the American domestic sphere involve issues that are [*115] traditionally within the purview of the states, rather than the federal government. For example, SANCHEZ LLAMAS V. OREGON (2006) and MEDELLIN V. TEXAS (2008), two cases Simon discusses in detail in chapter 3, involve questions over whether federal courts can enforce international treaties in ways that constrain state governments’ prosecution of foreign criminal defendants.
Expansive interpretations of international human rights law and treaty law could potentially threaten state autonomy on a wide range of issues. The head of the United Nations Office on Drugs and Crime has even claimed that the legalization of marijuana by several U.S. state governments violates international drug control treaties (Newsweek 2014).
Concern about undermining federalism is an important additional element in sovereignist critiques of domestic incorporation of international law. Simon’s neglect of this question leads him to overlook a notable specific issue that probably should have been covered in his chapter on the role of treaties. In addition to the question of whether treaties are self-enforcing, the Supreme Court has also recently addressed the issue of whether the treaty power enables the federal government to reach into areas that would otherwise be beyond the scope of its authority under the Constitution and within the sole purview of the states. Although MISSOURI V. HOLLAND (1920) is often seen as definitively resolving this issue in favor of a broad view of federal power, that theory has come under increasing criticism in recent years.
In BOND V. UNITED STATES II (2014), a case involving the federal statue enforcing the Chemical Weapons Convention (CWC), the Court reconsidered this important issue. The majority did not definitively resolve the constitutional question. But it did narrowly construe the CWC statute in order to avoid including “local” crimes whose coverage might raise serious constitutional questions. In a concurring opinion joined by two other conservative justices, Justice Antonin Scalia rejected the majority’s narrow interpretation of the law, and argued that the statute was unconstitutional because it improperly federalized local crimes, thereby endorsing a narrower view of the treaty power than that embodied in the traditional interpretation of HOLLAND.
BOND suggests that the Court might, in a future case, adopt a position similar to that envisioned in Scalia’s concurrence. The issue the case raises could potentially grow in importance in the future, especially if the Court continues to expand its enforcement of constitutional constraints on federal power (Somin 2016, 449-50).
In addition to taking more account of federalism, Simon could have given more consideration to the striking way in which the division between sovereignists and internationalists tracks traditional left-right political lines. There is a high correlation between judges’ and legal scholars’ positions on the domestic incorporation of international law and their position on the political spectrum, with the left tending to be internationalist and the right more sovereignist. [*116]
Perhaps this connection is natural and unsurprising. But, it deserves more consideration than Simon gives it. For example, it is useful to ask whether the left tends to be more internationalist than the right only because the content of international human rights law is relatively left wing. Or does it also have a deeper affinity than the right for the procedures by which international rules are developed, irrespective of content? Would either side change their position on the issue if the political valence of international law were to shift? If, as some commentators believe, the traditional left-right spectrum may be superseded by new alignments in the near future, how will that affect the valence of the internationalist-sovereignist debate?
Despite these limitations, Simon has written an extremely valuable and timely book. It is a useful resource for anyone interested in the Supreme Court’s jurisprudence on the domestic impact of international human rights law.
CASES:
BOND V. UNITED STATES II, 572 U.S. ___ (2014).
MEDELLIN V. TEXAS, 552 U.S. 491 (2008).
MISSOURI V. HOLLAND 252 U.S. 416 (1920).
SANCHEZ LLAMAS V. OREGON, 548 U.S. 331 (2006).
REFERENCES:
NEWSWEEK. 2014. “UN Says US Marijuana Legalization Violates International Law.” NEWSWEEK. Nov. 11. available at http://www.newsweek.com/un-says-us-marijuana-legalization-violates-international-law-283912
Somin, Ilya. 2016. “Federalism and the Roberts Court.” PUBLIUS: THE JOURNAL OF FEDERALISM 46: 441-62.
© Copyright 2017 by author, Ilya Somin.
