Remarks By
Sandra Day O'Connor
Associate Justice, Supreme Court of the United States
It is a privilege to be with you today. This is the most prestigious legal group in the United States, and I am pleased to have a few minutes to speak to you during your meeting.
The impressions we create in this world are important and can leave their mark. A friend of mine tells the story of a bus driver who was becoming angry but still kept his composure when a woman passenger made many complaints during the trip. She was rude and made the trip very unpleasant for those around her. It wasn’t until the driver opened the door at her stop to let her off the bus that the driver said, “Lady, you left something behind.” She turned and snarled, “And what was it I left behind?” The driver smiled and said softly, “A bad impression.”
On the whole, the United States judicial system leaves a favorable impression around the world. But, in the treatment in United States courts of international law, the jury is still out.
Because of my exposure to a great many legal systems around the world I decided to speak to you today about the need for more knowledge about international law and transnational law. Why does information about international law matter so much? Why should judges and lawyers, who are concerned about the intricacies of ERISA, the Americans with Disabilities Act, and the Bankruptcy Code care about issues of foreign law, and of international and transnational law?
The reason, of course, is globalization. No institution of government can afford now to ignore the rest of the world. The importance of globalization should not be underestimated. 30% of our gross domestic product is internationally derived. We operate today under a large array of international agreements and organizations: the U.N. Convention on Contracts for the International Sale of Goods, NAFTA, the World Trade Organization, the Hague Conventions on Collection of Evidence Abroad and on Service of Process, and the New York Convention on Enforcement of Arbitral Awards, to mention only a few. But globalization is much more than simply these agreements and organizations. Globalization also represents a greater awareness of, and access to, peoples and places far different from our own. The fates of nations are more closely intertwined than ever before, and we are more acutely aware of the connections. As we learned in this country on September 11, these connections can sometimes be devastating rather than constructive. But as we also are learning in a post-September 11 world, the power of international cooperation and international understanding is much greater than the obstacles we face.
The word "globalization" has many connotations, some positive and some negative. These varying views are reflective of both the potential of globalization to increase world harmony, and the risk that globalization will suppress desirable differences and become simply a tool for imposing the preferences of powerful nations like our own upon the rest of the world. Harnessing the good that can come from our increasingly global world while avoiding these pitfalls involves — indeed requires — those with power and influence in our country to develop a greater knowledge and understanding of what is happening outside our nation’s borders.
This is true of courts and of lawyers as much as it is of relevant governmental bodies. There is talk today about the "internationalization of legal relations." We are already seeing this in American courts, and should see it increasingly in the future. This does not mean, of course, that our courts can or should abandon their character as domestic institutions. Very few treaties are directly enforceable in American courts. In the Breard case, for instance, we declined to entertain a Vienna Convention claim in a death penalty case, on the basis of a procedural default, as well as a belief that "neither the text nor the history of the Vienna Convention clearly provides a foreign nation a private right of action in United States courts to set aside a criminal conviction and sentence for violation of consular notice provisions."
On the somewhat rare occasions when we are called upon to consider international law, however, the Court on which I sit often refuses. Just this Term, we declined to hear a case about the definition of "custody" in the Hague Convention on International Child Abduction, despite the fact that the lower court’s ruling contradicted that of courts in several of the other signatory countries.
Since the Second Circuit’s decision in Filatarga v. Peña-Irala, American courts have entertained Alien Tort Claims Act and Torture Victim Protection Act cases involving international law violations by other sovereigns, with significant impacts on the international terrain. In the Karadzic case, for instance, the Second Circuit has allowed a suit against Radovan Karadzic for crimes against women in the Bosnian conflict, expanding the Acts’ coverage to include suits against those who are not recognized as heads of states. Exemplified by suits like these, international human rights litigation has become a cottage industry in the United States. And yet, our Supreme Court has not reached out to clarify these statutes, despite the explicit urgings of some lower court judges who do not have such control over their own dockets.
For those federal courts which have no choice but to entertain suits like the Karadzic case, they may do so without full awareness of the implications for the international arena. These judgments against foreign leaders, which are rarely if ever enforced in any traditional sense, play an important role in shaping diplomatic initiatives across the globe. And the impact of such litigation on international relations is not always positive. Whatever the merits of allowing these suits, courts should be aware of the effects their decisions in such important cases may have.
Although international causes of action like these are still relatively rare, there are many other ways that international issues come before American courts. This is because international law is no longer confined in relevance to a few treaties and international business agreements. Rather, it has taken on the character of "transnational law" — what Philip Jessup has defined as "all law which regulates actions or events that transcend national frontiers. Both public and private international law are included, as are other rules which do not wholly fit into such standard categories." Although international law and the law of other nations are rarely binding upon our decisions, conclusions reached by other countries and by the international community should at times constitute persuasive authority in American courts — what is sometimes called "transjudicialism".
American courts have not, however, developed as robust a transnational jurisprudence as they might. Many scholars have documented how the decisions of the Court on which I sit have had an influence on the opinions of foreign tribunals. One scholar has even remarked that:
When life or liberty is at stake, the landmark judgments of the Supreme Court of the United States, giving fresh meaning to the principles of the Bill of Rights, are studied with as much attention in New Delhi or Strasbourg as they are in Washington, D. C., or the State of Washington, or Springfield, Illinois.
This reliance, however, has not been reciprocal. There has been a reluctance on our current Supreme Court to look to international or foreign law in interpreting our own Constitution and related statutes. While ultimately we must bear responsibility for interpreting our own laws, there is much to be learned from other distinguished jurists who have given thought to the difficult issues we face here.
The Court on which I sit held more than 200 years ago that Acts of Congress should be construed to be consistent with international law absent clear expression to the contrary. Somewhat surprisingly, however, this doctrine is rarely utilized in the Court’s contemporary jurisprudence. I can think of only two cases during my now more than 20 years on the Court that have relied upon this interpretive principle.
We have also refused to consider international law and the law of other nations when interpreting our own constitution. We are sometimes asked to do so, particularly when dealing with Eighth Amendment challenges to the death penalty. Litigants claiming that the execution of those who were juveniles at the time they committed the crime violates the International Covenant on Civil and Political Rights as well as general international norms are sometimes before us. This Term, we are considering a case involving the constitutionality of executing people who are mentally retarded. Several of the briefs focus on the practice in other nations. We have even received an amicus brief from a group of American diplomats discussing the difficulties posed for their missions by American death penalty practice. Until now, however, we have always held that, when interpreting the meaning of cruel and unusual punishment under the 8th Amendment, only national norms are relevant.
Although our reliance on international and foreign law is rare, it is not non-existent. For instance, we have looked to international law notions of sovereignty when shaping our federalism jurisprudence, and to international law norms in boundary disputes between American states. In areas such as these, it would be a mistake to ignore the rich resources developed in the law of nations. I suspect that with time, we will rely increasingly on international and foreign law in resolving what now appear to be domestic issues.
I have not even scratched the surface of the issues and areas of application of foreign and international law in U. S. courts. The fact is that international and foreign law are being raised in our courts more often and in more areas than our courts have the knowledge and experience to deal with. There is a great need for expanded knowledge in this field. And the need is now.
International law, which is the expression of agreement on some basic principles of relations between nations, will be a factor or a force in gaining a greater consensus among all nations concerning some basic principles of relations with nations which as of now are withholding their agreement on some aspects. It can be and is a help in our search for a more peaceful world. A broad consensus on how nations should treat prisoners of war has recently influenced our own government in our handling of prisoners taken in Afghanistan who were perhaps not technically covered by the Geneva Convention, but who will nevertheless be treated largely as if they were. Acting in accord with international norms may increase the chances for development of broader alliances or at least silent support from other nations. The efforts we spend to educate law students, lawyers, judges, both in the United States and abroad, about international law are efforts well spent.
Kofi Annan has said: "The rule of law is essential to peace, development and the realization of human rights. The practice of law is a privilege, but a privilege that carries with it a heavy responsibility to ensure respect for the law." American judges are becoming more aware of their responsibilities to respect not only domestic law, but the law of nations. But more effort is needed.
The American Law Institute is the leading institution in forming written expression of legal principles which have evolved in many areas of the law. I am impressed with current efforts at the ALI to address several areas of international and foreign law. The work of the ALI during World War II led to the U.N.’s Universal Declaration of Human Rights. In 1965 the ALI produced its first Restatement of the Foreign Relations of the U. S. The Restatement Second of Conflict of Laws in 1969 addressed rules with elements in one or more foreign nations. An updated Restatement Third of the Foreign Relations Law of the U. S. has had considerable influence both in the U. S. and abroad.
The Transnational Bankruptcy project began in 1993. Work began in 1997 on Principles and Rules of Transnational Civil Procedure. Work continues on the project that concerns the Hague Convention on Jurisdiction and Foreign Judgments in Civil and Commercial matters. It is an exceedingly important project which may lead to enactment of a new federal statute. Questions about reciprocity and enforcement of non-monetary judgments are proving to be difficult to resolve. I believe you are considering a draft at this meeting.
It is gratifying and encouraging to see the variety of projects the ALI is pursuing in this area of international and transnational law.
Developments like these are important if the American legal profession is going to take seriously the realities of practice — not only the ways in which transnational legal issues must be addressed, but also the potential for using the law to make a difference in the issues facing our world. In remarks I have given to groups of lawyers since September 11, I have noted that the need for lawyers in this difficult time has not decreased; it has increased. Because of the scope of the problems we face, understanding international law is no longer just a legal specialty; it is becoming a duty.
I like to say we must not be tone deaf to the music of the law. There are lawyers who never hear the law's music -- indeed, those who think there is none; those who think the law is just a business -- one for which high fees can be charged and collected for the necessary services only a lawyer can provide. But if you understand and hear the law's music, to quote a former law school classmate of mine, "It is a music filled with the logic and clarity of Bach, the thunder, sometimes overblown and pompous, of Wagner, the lyric passion of Verdi and Puccini, the genius of Mozart, Gershwin's invention, Rossini and Vivaldi's energy, Aaron Copeland's folksy common sense, Beethoven's majesty, and, unfortunately, not a little of the ponderous tedium of Mahler and the sterile intellectualism of Schonberg.... The words [of the music of the law you can hear] are words of equality, justice, fairness, consistency, predictability, equity, wrongs righted, and the repose of disputes settled without violence, without undue advantage, and without leaving either side with bitter feelings of having been cheated. It is the music sung in the world.... of childlike innocence in which the lion lies down with the lamb. [Perhaps] It is not a world that ever was, nor ever will be, but it is a world worth living toward."
Thank you, members of the ALI, for your appreciation of the music of the law — which like real music should transcend national boundaries.
Endnotes