15 May Making International Principles Domestic Law: the Legislative Version
The question of the use of international authorities by courts is interesting – but what about when Congress does the same thing?
Consider the controversial new rule by the EPA on the use of human subjects in pesticide testing. Congress required the agency to promulgate the rule “consistent with … the principles of the Nuremberg Code with respect to human experimentation.” The Code itself was devised during the Nuremberg trials once prosecutors became aware of the what, exactly, human experimentation had meant in Nazi Germany. Its principles remain current – Congress spoke to the code per the above in its Department of Interior, Environment, and Related Agencies Appropriations Act, 2006 (that’s section 201 of Pub. L. No. 109-54 for those of you who would like to read the statute).
I find the use of the Nuremberg Code interesting for a number of reasons. But it particularly resonates now that international sources of domestic obligation are so prominent. The legislature’s use of the code to constrain domestic regulators exemplifies another, non-judicial way that international principles, in this case human rights principles, can be targeted to specific national problems.