International Judicial Monitor
Published by the American Society of International Law and the International Judicial Academy
May 2006, Volume 1, Issue 2

ASIL Sidebar

References to non-US legal materials in recent US Supreme Court decisions dealing with issues such as affirmative action, the death penalty, and criminal justice, have generated considerable debate and controversy over the appropriate use of so-called foreign law and international law in judicial decision-making in the United States.

For some, the controversy is much ado about nothing. The Supreme Court and other US federal courts, they argue, have a long history of citing to foreign legal material and examining the views and experiences of those outside the United States. In other words, reference to foreign or international law as persuasive authority in recent decisions such as Lawrence, Atkins, and Roper is really nothing new. 

Some critics of the practice, however, allege that the citation to foreign legal authority is a form of judicial cosmopolitism that is elitist and anti-democratic. Others are more concerned about how and under what circumstances foreign and international law is used.  These critics are concerned about the extent to which foreign sources are being relied upon as authority to confirm the decisions of judges to overturn legislation, as opposed to being used in a more limited fashion as evidence that legislation has a rational basis or to interpret a treaty obligation.

The debate is one that divides practitioners, scholars, and legal commentators alike. Members of the Supreme Court also part company on the legitimate uses of foreign and international law, and are sometimes quite willing to disagree with one-another. This disagreement can be seen in the back and forth dialogue some justices are having in their decisions and in their public appearances.        

Notably, the reference to foreign and international law in recent years has prompted members of the US Congress to introduce two draft resolutions to limit how these authorities are used in the federal courts. Both of these resolutions, House of Representatives Resolution 97 and Senate Resolution 92, express the sense of Congress that the “judgments, laws, or pronouncements of foreign institutions” should not be the basis for the adjudication of constitutional questions.  A similar draft bill, the Constitution Restoration Act, would make reliance upon similar foreign or international sources in interpreting and applying the Constitution an impeachable act.      

Without any real consensus on how the US legal system and courts should plug into an increasingly global web of institutions and norms, the use of foreign law and international law in judicial decision-making in the United States will likely continue to be debated for some time to come. 

The American Society of International Law (ASIL) welcomes this debate in light of our century-old mission to promote greater awareness, understanding, and use of international law. Ways in which ASIL has recently sought to inform this debate, as well as other programmatic initiatives involving international law, include: 

  • Partnering with the Organization of American States in organizing two workshops for the Inter-American Juridical Committee. One workshop focused on the link between democracy and economic and social development while the other focused on the International Criminal Court.  These workshops, which took place at OAS Headquarters in Washington DC on March 27-28, 2006 provided an opportunity for scholars and practitioners from throughout the hemisphere to discuss the coordination of international and regional legal institutions and norms.  
  • Convening ASIL’s 100th Annual Meeting, March 29-April 1st, which featured participation by a number of US and foreign judges.  U.S. Secretary of State Condoleezza Rice participated in a discussion with retired US Supreme Court Justice Sandra Day O’Connor and Judge Roslyn Higgins of the International Court of Justice. US Supreme Court Justice Anthony Kennedy gave a keynote address, highlighting the crisis in Darfur and also noting the learning opportunities afforded by engagement with foreign legal systems and legal professionals.
  • Collaborating with the Federal Judicial Center in planning a Fall 2006 conference on International Law and Transnational Litigation in US Courts. This conference will bring together roughly 35 US federal and state court judges to discuss emerging issues international law, international tribunals, and transnational litigation facing judges in the US and abroad.  

by Andrew Solomon, ASIL Director of Research and Outreach Programs, and Katherine Brantingham, ASIL Program Officer

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© 2006 – The American Society of International Law and International Judicial Academy.

Editors: James G. Apple, Katherine Brantingham and Andrew Solomon.
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