Not a Transnationalist. Some (Really) Early Thoughts on Judge Sotomayor

by Julian Ku

As a judge in the New York federal courts over the past 15 years, both at the district and appellate level, U.S. Supreme Court nominee Sonia Sotomayor has had a fair number of cases involving the application of international law.  She has never ruled on an Alien Tort Statute case, but my very quick scan suggests that, whatever else her critics can say, her judicial record does not suggest she will be a particularly “transnationalist” justice. 

Closet Sovereigntist?

United States v. Ni Fa Yi, 951 F. Supp. 42 (S.D.N.Y. 1997), involved a defendant’s challenge to his prosecution under the Hostage Taking Act, and the International Convention Against the Taking of Hostages.  While ruling for the government, Judge Sotomayor went out of her way to reject the government’s argument that the fact that the criminal statute  was enacted to implement treaty obligations should automatically satisfy judicial scrutiny of the statute’s constitutionality. “The Court agrees with defendant, however, that this begs the question: “[N]o agreement with a foreign nation can confer power on the Congress, or on any branch of Government, which is free from the constraints of the Constitution.” (Citing Reid v. Covert, 353 1, 16 (1957)).

Deferential to Executive Foreign Affairs Power?

European Commission v. RJR Nabisco, 355 F.3d 123 (2d Cir. 2004) involved an attempt by the European Commission to bring a RICO action in U.S. courts against tobacco companies for lost tax revenues.  Invoking the common law “revenue rule”, Judge Sotomayor barred the action on the grounds that the suit essentially requires US courts to enforce European tax laws.  In barring the action, though, she did leave open the possibility of executive intervention in the litigation as a mechanism to lift the bar imposed by the revenue rule. Interestingly, this was also part of the theory for the Supreme Court’s eventual decision to relax the revenue in another context, in an opinion by Justice Thomas.  And it was the lack of intervention by the executive that led her to continue to bar the suit, even after the Supreme Court had remanded her earlier decision.

Staying Neutral on the Relationship Between International law and the Supremacy Clause

In Beharry v. Ashcroft, 339 F.3d 51 (2d Cir 2003), Judge Sotomayor went out of her way to avoid opining on a lower court decision (by Judge Jack Weinstein) that casually gave customary international law the same status as federal legislation under the Supremacy Clause. In reversing the lower court on statutory grounds, Judge Sotomayor offered this gentle non-opinion: “Nothing in our decision to reverse on other grounds the judgment of the district court should be seen as an endorsement of the district court’s holding that interpretation of the INA in this case is influenced or controlled by international law.”

Similarly, in Center for Reproductive Law v. Bush, 304 F 3d. 183 (2d Cir. 2002), in rejecting a lawsuit challenging the ban on funding for overseas abortions under constitutional and customary international law, Judge Sotomayor disposed of the customary international law argument in a single footnote: “As plaintiffs’ claims based on customary international law are substantively indistinguishable from their First Amendment claims, they are dismissed on the same ground. We express no view as to whether those claims are otherwise viable.”

11 Responses

  1. She did rule in two ATS cases although not precisely on the applicability of the ATS.  In Aguinda v. Texaco, 303 F.3d 470 (2002) Judge Sotomayor joined the court dismissing Ecuadoran plaintiffs’ ATS claims on forum non conveniens grounds. And in Abrams v. Societe Nationale, 332 F.3d 173 (2003), Judge Sotomayor joined the courtin  ruling that the FSIA did not apply retroactively and thus federal jurisdiction could lie under the ATS and the FSIA.  Shameless plug: For more analysis on the ATS see my book Justice Across Borders (Cambridge University Press 2008). 

  2. Seems to me she falls in with pretty much the typical American judicial approach to international treaties or customary international law – try to avoid it by anchoring something (somehow) in the Constitution or statute.  Alas, I think it is more a comment on the state of legal education then on her.

  3. I thought that was not so much ‘much the typical American judicial approach’ as the ‘only legitimate common-law approach with a possible exception for the admiralty jurisdiction’?

    Definitely no causes of action or remedies under international law of any kind in Australia independent of statute,* and I was always under the impression that the US worked the same way.

    *There is a small technicality around how the foreign affairs power in the Constitution works, but suffice to say that the technicality starts with the foreign affairs power being there in the first place and is really only about the demarcation between the executive and the legislature.

  4. But see, Paquete Habana (1900) and much early jurisprudence after the Constitution here (David Sloss did some very interesting work on this that he presented at a conference several years ago).  You can look at the work of Jordan Paust going back to cases in the 19th century that suggest that this is not the only legitimate common law approach in the US.  Beyond that, one notes in criminal cases that judges find themselves having to address treaty objections to the death penalty raised by the defendants.  The one’s I have seen have not simply rejected the treaty argument (ICCPR usually) out of hand.  Rather, while recognizing the internal law distinction I have seen cases where the judge still makes the time to analyze under the treaty whether we are in compliance.  Maybe this would be considered obiter dicta but even if only that, it represents an effort by some judges to speak to those international obligations.  Hamdan would have been a better decision – in my opinion – if the Supreme Court had gone beyond the minimalist “at least common article 3 applies” to look more broadly at the international obligations. But, we have to see what was before them in the arguments of the lawyers (products of the same American legal educational system).  Also, in situations where other states are asserting treaty rights (say under diplomatic protection type arguments for a citizen who is held by the United States) it would seem to me that a common sense approach would also call the US court to take into account the nature of that treaty obligation.

    I guess what I am trying to say is there are spaces in the common law for treaty and customary international law to be examined in the United States.  Australia takes the more formal approach I imagine of a statute having to be enacted for a treaty obligation to come into effect internally so I suspect the space that “self-executing/non-self-executing” ambiguity provides in the US is a different space than the Australian common law.  But, I do not profess any expertise in the Australian dynamic.

    I have a student who has written a paper on the ICCPR interaction with special measures for the Northern Territories Aborigines that appear draconian that speaks to a tension between the Australian government’s interpretation of its treaty obligation and what aborigines consider the obligations.  The paper has to do with child abuse issues and very intense measures that have been put in place in recent years in Aboriginal communities.  I am not sure if this rings a bell for you, but I am curious about whether Australian court cases have sought to speak to those tensions.


  5. I am a bit surprised because she was a Managing Editor of Yale Studies in World Public Order, which became Yale Journal of International Law, and must have taken a class from Reisman?  Of course, it is true that, as expressed in Reid v. Covert, no int’l ag. as such can confer power on the Congress or President free from any restraints in the Const. — although, contra Medellin, it can enhance either congressional or executive power (the latter prescisely because under the Const. the Pres. must faithfully execute the laws, which include tretaies of the U.S., and, therefore, the Pres. must execute treaties (as long as such presidentail execution does not step too much on congressional powers otherwise shared).

  6. Well, Ben, there are several cans of worms there, and it is beyond me to appropriately address them. Your student’s paper probably does a much better job than I can in the time available to me.

    What is important to note is that there are three almost wholly distinct main issues. One is land rights: on this issue the High Court found that Aborigines did have residual land rights where they had maintained their traditional connection to the land or some semblance thereof. This was mainly circumvented by legislation. Two is ‘stolen’ children, which refers to the policy of raising (generally half-caste) aborigine children in orphanages or foster-homes to, in effect, make them more like whites. Three is the current ‘intervention’ in aborigine communities.

    One is something of a dead letter now. The High Court decisions were seminal, and despite the largely negative legislative reactions this was the aborigines’ greatest ‘victory’ yet since it resulted in lasting and meaningful recognition and financial compensation.

    Two is now almost solely a political question. First, the High Court has changed, and it could not now be contemplated that there would be any emanations from any hitherto-unsuspected penumbras. Secondly, the legal argument is almost embarrassingly weak in Australian legal terms. The only leg it has is fiduciary duties, and we are not Canada. The only international law argument I am aware of is that the policy amounted to Genocide and thus was in breach of the genocide convention. To that I can only excerpt this bit of reasoning, from Dawson J (with whom McHugh J agreed, and with whom I expect Brennan CJ would have agreed if he had thought the question worth addressing):
    In any event, the Convention has not at any time formed part of Australian domestic law. As was recently pointed out in Minister for Immigration and Ethnic Affairs v Teoh[112], it is well established that the provisions of an international treaty to which Australia is a party do not form part of Australian law unless those provisions have been validly incorporated into our municipal law by statute. Where such provisions have not been incorporated they cannot operate as a direct source of individual rights and obligations. However, because of a presumption that the legislature intends to give effect to Australia’s obligations under international law, where a statute or subordinate legislation is ambiguous it should be construed in accordance with those obligations, particularly where they are undertaken in a treaty to which Australia is a party[113]. Such a construction is not, however, required by the presumption where the obligations arise only under a treaty and the legislation in question was enacted before the treaty, as is the situation in the present case.

    On the other hand, there is another principle that legislation is to be interpreted and applied, so far as its language admits, in accordance with established rules of international law[114]. It was suggested in Teoh[115] that perhaps the two principles should be merged so as to require courts to favour a construction, to the extent that the language of the legislation permits, that is in conformity and not in conflict with Australia’s international obligations. The rule as so stated would still admit of an exception, logically necessary, where the relevant obligations are under a treaty which had not been entered into at the time the legislation came into force.

    Presumably for this reason, the plaintiffs rely principally upon a pre-existing rule of international law involving a prohibition upon genocide, rather than upon the provisions of the treaty. Even assuming the existence of such a rule, it is to my mind not possible to conceive of any acceptable definition of genocide which would embrace the actions authorised by the 1918 Ordinance, given that they were required to be performed in the best interests of the Aboriginals concerned or of the Aboriginal population.
    Per Dawson J, Kruger v the Cth (1997) 190 CLR 1; [1997] HCA 27.

    Three has not been addressed, to my knowledge, by a court as yet (I do not presently live in Australia). The main complaint about it is that it is ‘racist’, but this is inane – it is indeed ‘racist’, since only one racial group has the comprehensively miserable circumstances that the policy seeks to address. Indeed I believe the Racial Discrimination Act was amended to permit the program.

    But there no meaningful legal argument against it that I can think of in an Australian court, except with respect to any possible expropriation of property (which does not appear to happen, I don’t think).

    My final word on that is that ‘aborigines’ is a rather broad word. There are several prominent and less-prominent aborigine leaders who support the ‘intervention’ class of policy, and there are possibly as many, and certainly plenty, who oppose it. As far as I can recall, with the exception of one rather uninispiring magistrate (district court judge), the aborigine ‘legal’ community largely supported it, even if only as better than nothing. Quite a lot of opposition comes from the land councils, who are essentially reduced to irrelevance under the interventions (which may be fair reward for their failure to be relevant prior to them).

    But I am happy to be corrected on any of this, I am stretching my knowledge slightly and probably should be more reserved, especially on a blog like this.

  7. Patrick,
    Thanks very much for your stretching.  It is very interesting to read your thoughts on this area.  Much appreciated.

  8. Good Luck and Happy Blogging.

  9. haha no wonder the site was down…

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