Coercing Virtue (17 page)

What is called “customary international law” is used to pronounce judgment on the use of armed force by nations, despite the fact that there is no international law established by custom. If there were, it would not restrain international aggression but unleash it. The Nuremberg trials in the wake of World War II confirmed both the notion of such law and the idea that it represented civilized behavior. Those trials served two valuable purposes: they created a detailed history of the horrors perpetrated by the Third Reich, and they provided moral justification for the imprisonment or execution of those responsible. They should have been left at that, but the winning
powers felt a need to justify the proceedings further by claiming that, before the Nazi regime came to power, an international law existed which forbade wars of aggression and the deliberate murder by a nation of its own citizens. No law justified the punishments meted out, though there was a moral necessity for them. The victors lacked the stomach to say that, however. Soon we became addicted to the idea of international law and began the proliferation of what we chose to call “laws” that guaranteed every good thing.

In recent years there has been a proliferation of international tribunals that apply treaties or codes of some kind to all nations that have succumbed to internal pressure to sign on to them. Some of these courts claim jurisdiction only over European nations, but others claim a global jurisdiction that they are powerless to enforce.

Many of the judgments of international courts are unenforceable, in the sense that the judgment of an Illinois state court, for example, is enforceable anywhere in the United States. The judgment of the Illinois court is made effective, if necessary, by force. International tribunals can summon no such assistance and, as a result, such judgments are widely ignored. But that does not make the judgments harmless. In the first place, some of these judgments are enforceable and great injustices may be done to individuals caught in their highly politicized toils. More than that, the proceedings in some international tribunals take on the aspect of show trials and their judgments often carry great moral weight. It is here that these courts become not merely allies of the New Class
in the culture war but allies of the left in the international war of political propaganda. The United States is particularly unlikely to win in such forums.

International law is not law but politics. For that reason, it is dangerous to give the name law, which summons up respect, to political struggles that are essentially lawless. The problem is not merely the anti-Americanism that grips foreign elites and shapes law; it is also the American intellectual class, which is largely hostile to America and uses international law, or what is claimed to be international law, to attack the morality of its own government and society. International law becomes one more weapon in the domestic culture war. It must be admitted, moreover, that the United States has used its power to force the trials of some men who have done no worse than other men with whom we do not interfere, whether from hesitation to pay the costs in casualties or from calculations of national economic advantage. That may or may not be justifiable, but it hardly bespeaks devotion to law.

The insidious appeal of internationalism is illustrated by the fact that some Justices of the American Supreme Court have begun to look to foreign decisions and even to foreign legislation for guidance in interpreting the American Constitution. Perhaps it is significant that the Justices who do so are from the liberal wing of the Court. This trend is not surprising, given liberalism’s tendency to search for the universal and to denigrate the particular.

In
Thompson v. Oklahoma
(1988) Justice Stevens, writing for four members of an equally divided Court, held that, for a state to execute a person who had committed a crime when he was fifteen years of age, the punishment was cruel, unusual, and unconstitutional. In the course of his argument, Stevens said that conclusion was “consistent with the views that have been expressed by respected professional organizations, by other nations that share our Anglo-American heritage, and by the leading members of the Western European community.” He continued: “We have previously recognized the relevance of the views of the international community in determining whether a punishment is cruel and unusual.” That relevance, nevertheless, remains unclear. Mixed in with foreign materials concerning the execution of juveniles was a list of nations that had abolished the death penalty altogether, again by legislation rather than judicial decree. The Justice also cited three human rights treaties, two of which had been signed but not ratified by the United States; the third treaty was the Geneva Convention concerning the protection of civilians in time of war.

The dissent of Justice Brennan was similar in
Stanford
v.
Kentucky
(1989), a case that allowed the imposition of capital punishment for a crime committed when the defendant was sixteen or seventeen years of age: “Together, the rejection of the death penalty for juveniles by a majority of the States, the rarity of the sentence for juveniles, both as an absolute and a comparative matter, the decisions of respected organizations in relevant fields that this punishment is unacceptable, and its rejection
generally throughout the world, provide to my mind a strong grounding that it is not constitutionally tolerable that certain States persist in authorizing the execution of adolescent offenders.”

More recently, in
Printz
v.
United States
(2000), Justice Breyer dissented from a decision that it is unconstitutional for a federal gun control statute to require state officials to carry out the federal policy. Rather, he found foreign views of federalism helpful in construing the requirements of federalism in the United States: “Of course, we are interpreting our own Constitution, not those of other nations, and there may be relevant political and structural differences between their system and our own. … But their experience may nonetheless cast an empirical light on the consequences of different solutions to a common legal problem – in this case the problem of reconciling central authority with the need to preserve the liberty enhancing autonomy of a smaller constituent governmental entity.” He thought the experience of European countries confirmed the answer that was implied in the question Justice Stevens had asked: “Why, or how, would what the majority sees as a constitutional alternative – the creation of a new federal gun law bureaucracy, or the expansion of an existing federal bureaucracy – better promote either state sovereignty or individual liberty?”

Justice Breyer looked abroad for constitutional guidance in two other cases. He concurred in
Nixon
v.
Missouri
(2000), a case that upheld a state’s campaign finance limitations against a free speech challenge. He found the approach taken in some federal cases “consistent with that
of other constitutional courts facing similar complex constitutional problems,” and he cited decisions of the European Court of Human Rights and a Canadian court. But in
Knight
v.
Florida
(1999) this tendency to look abroad for guidance to the meaning of the American Constitution became risible. Breyer stated that he found “useful” decisions concerning allowable delays of execution by the Privy Council of Jamaica, the Supreme Court of India, and the Supreme Court of Zimbabwe.

The question in each of these cases should have been the understanding of the ratifiers of the
Bill of Rights
in 1791, not the current views of foreign nations. In any event, these views were often expressed in legislation rather than in judicial decisions. If the views of foreign legislatures are relevant, they would surely be relevant to debates in American legislatures, not to judicial interpretations of the American Constitution. Nor is it clear what relevance the list of nations that have abolished the death penalty has to the United States Constitution, which repeatedly assumes in explicit language that the death penalty is available to federal and state governments should they care to use it. If we disregard such nonconstitutional considerations as the policies of most states, the rarity of the punishment, or the views of respected organizations, it is remarkable that “the standards of decency in the form of legislation in other countries” are thought to have any bearing at all on the historical meaning of the American Constitution. Finally, with regard to federalism, Breyer was right – if the Court’s function is legislative. It then makes sense to look to foreign
concepts of federalism for guidance. It does not make sense, however, if the Court is applying the concept of federalism embodied in the American design as it is expressed in the Constitution.

There are other examples of Justices citing foreign decisions, both judicial and legislative, as relevant to their interpretation of the American Constitution. Nor is this phenomenon exclusively American. The Supreme Courts of Canada and of Israel, the other two national judiciaries discussed in this book, have done the same thing and have also relied on international conventions, United Nations resolutions, and other materials. The inevitable result of all these practices is the international homogenization of constitutional law. It can be accomplished only if the various national courts are willing to minimize the historical understanding of their own constitutions in favor of what they perceive as an international morality.

The fever for internationalizing law through national judiciaries surfaced at the American Bar Association’s annual meeting in 2000 held in London. Four American Supreme Court Justices were present, but Anthony Kennedy bore the brunt of the attack on the Court’s alleged “insularity.” A prominent London barrister rose to accuse the United States Supreme Court of “turning its back on the Continent,” noting that the Justices rarely cite the decisions of European courts: “Your system is quite certain it has nothing much to learn from us.” Some Americans rose to promise that our courts would do better in future. The dean of a major law school said that several Justices had been active in moving the Court
to a more internationalist approach, which “has begun to permeate the entire system.” The mayor of Detroit was even more defensive: “We’re not as parochial as one might think.” While British courts might be in the forefront now in citing European decisions, he promised American lawyers and judges will eventually take the lead so that, “at the end of the day, we will be ahead.”

Kennedy, to his credit, did not succumb to this combination of insolent foreign browbeating and pusillanimous American response. If American courts cede authority to remote courts unknown to the public, he said, there was a risk of losing the allegiance of the people. American courts, moreover, are often unsure whether European courts are referring to the same issues that the Justices must decide. Contrary to Breyer’s position, Kennedy stated that European federalism “has nothing to do with our federalism.” He was quite right. European courts deal with different constitutions, cultures, histories, and political systems from those the American Court must consider.

Another American route to internationalization has been created by the resurrection of the
Alien Tort Claims Act
, a law enacted in 1789 of somewhat mysterious intention that had lain dormant for two hundred years. The statute provides: “The district courts shall have original jurisdiction of any civil action by an alien for tort only, committed in violation of the law of nations or a treaty of the United States.” The statute owes its reinvigoration to a similar expansion in the concept of the law of nations.
Filartiga
v.
Pena-Irala
broke the silence in 1980 by awarding damages in a suit by Paraguayans residing in
the United States for the murder in Paraguay of a Paraguayan by a Paraguayan official. No such jurisdiction was contemplated in 1789 because the law of nations then had a much narrower scope. The court, as Professor Jeremy Rabkin put it, “cheered on by a host of international law scholars, insisted, however, that ‘customary international law’ has greatly expanded and now incorporates an international law of human rights.” The Paraguayan official, safe in his own country, saw no reason to “pay anything to anybody on the mere say-so of a U.S. court.” That is the common fate of such judgments. These suits do not really seek recompense, but aspire only to make a propaganda point more morally compelling by the decision of a U.S. court.

In 1984 the appeals court on which I sat heard a similar case,
Tel-Oren
v.
Libyan Arab Republic
. The case grew out of an armed attack on a civilian bus in Israel in which sixty-five people were seriously injured and twenty-nine killed. Survivors and representatives of those killed sued Libya, the Palestine Liberation Organization, and others. Though unanimous in rejecting the claim put forward, the three judges did not agree on the rationale. My reason for denying that the plaintiffs had a cause of action was that the claim defendants “violated customary principles of international law against terrorism … an area of international law in which there is little or no consensus and in which the disagreements concern politically sensitive issues that are especially prominent in the foreign relations problems of the Middle East.” The lack of clarity in the legal principles involved, the absence of consensus about
those principles, and the impingement of the case on America’s foreign relations all led to the conclusion that the case was not appropriate for federal court adjudication.

A major problem with the modern application of the
Alien Tort Claims Act
is, as one judge expressed it, that “[t]his old but little used section is a kind of legal Lohengrin … no one seems to know whence it came.” Along the same line, I wrote that “[h]istorical research has not yet disclosed what [the Act] was intended to accomplish. That fact poses a special problem for courts. A statute whose original meaning is hidden from us and yet which, if its words are read incautiously, with modern assumptions in mind, is capable of plunging our nation into foreign conflicts, ought to be approached by the judiciary with great circumspection. It will not do simply to assert that the statutory phrase, the ‘law of nations,’ whatever it may have meant in 1789, must be read today as incorporating all the modern rules of international law. … It is important to remember that in 1789 there was no concept of international human rights; neither was there, under the traditional version of customary international law, any recognition of a right of private parties to recover.”