Justice O’Connor and the Complexities of International Law

Justice O’Connor and the Complexities of International Law

Justice O’Connor’s views on international law and foreign law are moderate, well-reasoned, and consistent. Julian points out two quotes and implies that, somehow, they don’t fit together in a “[]satisfying” world view. I disagree. On topics of international law, Justice O’Connor has consistently held that U.S. judges should, in certain instances, give persuasive authority to international tribunals. It is also her view that they do not have to do so as no international or foreign tribunal has been given judicial authority by the Constitution. It is not necessarily a view that some people (on the right or the left) like, but it is logically consistent and it hangs together.

Justice O’Connor chairs the Judicial Advisory Board of the American Society of International Law. While I was the Director of Research and Outreach of the ASIL I had the pleasure of working with her over the course of three years in developing programs on international and foreign law for U.S. judges. She has a deeper and more realistic understanding of the complexities of these issues than most international lawyers — and critics of international law — that I know.

Judges are not hermits. They talk to their colleagues on the same court and from different courts. The law is not hermetically sealed. International law, foreign law, and U.S. law interact in the work of judges. Some academics and pundits spin theories of what judges should do without really understanding what the work of judges actually entails. Others build grand theories of international law that have little bearing on what is actually applied by judges. Justice O’Connor’s views of international law are informed by having taken part in the formal process as well as the informal interactions that are part of being a judge for more than a quarter-century. Her views are also anchored in a deep understanding of the rules that are actually applied by U.S. courts. Here is what she said in part of her Keynote Address to the Annual Meeting of the American Society of International Law in 2002:

…international law is no longer confined in relevance to a few treaties and business
agreements. Rather, it has taken on the character of transnational law–what Philip Jessup has defined as law that regulates actions or events that transcend national frontiers. Both public and private international laws are included, as are other rules that do not wholly fit in to such standard categories.

Although international law and the law of other nations are rarely binding upon our
decisions in U.S. courts, conclusions reached by other countries and by the international
community should at times constitute persuasive authority in American courts. This 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 said
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, DC or the
state of Washington or Springfield, Illinois.

This reliance, unfortunately, 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 learn from other distinguished jurists who
have given thought to the same difficult issues that we face here.

The court on which I sit has held, for more than two hundred years, 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 our court’s contemporary jurisprudence. I can think of only two cases during my more than twenty years on the Supreme Court that have relied upon this interpretive principle.

We have refused to consider international law and the law of other nations when
interpreting our own Constitution…

Although our reliance on international and foreign law is rare, it is not nonexistent. 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 purely 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 the field, and the need is now.

Justice O’Connor’s view of international law is particularly realistic because it recognizes that international law is not just like domestic law and thus its uses and applications may be different. I think that her understanding of international is not only informed by her tenure as a judge, but also by her experiences as a legislator, having to build consensus among different political actors. Consider the following quote, from the same speech:

Just as we have said since the Paquete Habana case, “International law is part of our
law.” 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 basic principles of relations with nations that, 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 to a degree influenced our own government in its handling of prisoners taken in Afghanistan; they were perhaps not technically covered by the Geneva Convention but they 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.

Perhaps Justice O’Connor does not go as far in applying international law as some would want. Perhaps she does not reject international and foreign law as others would demand. Perhaps a lifetime of experience in the legislative and judicial branches makes such ideologically pure results practically unsatisfying.

Unlike some scholars, who focus on international law in the domestic courts, or others, who are primarily concerned with international law and international relations, when Justice O’Connor spoke about international law, she showed an appreciation for both sets of concerns. This Janus-faced outlook, seeing both international and domestic implications, has allowed her a greater understanding than most of the strengths and weaknesses of international law, making her views moderate, realistic, and, yes, analytically satisfying.

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J. J. Horner
J. J. Horner

I’m on the Right of this issue. I don’t think she has the authority to judge American legal issues on the basis of International law. Her job is to look at the Constitution as her abiding guidance. Anything outside of that is judicial activism.