By: James G. Apple, Editor-in-Chief, International Judicial Monitor and President, International Judicial Academy

If international law is really law, it ought to be useful to, and used by, courts. Can courts in domestic legal systems use international law in cases presented to them that involve their own nationals? The response to that question is: “It depends.” The use of international law in domestic legal systems very much depends on its status within the legal system of a particular country.  Some nations place international law at the forefront of their legal obligations, so that both international law and treaty obligations are viewed as superior to the domestic laws of the country.  In other nations domestic law may be superior to either international law or treaty obligations, or both. This issue is usually argued under the rubric of the “incorporation doctrine”.[i]

In the United States the picture is less than crystal clear, although it ought not to be.  In 1793, not long after the Constitution of the United States had been drafted and approved by the citizens of the thirteen colonies then comprising the nation, a case was docketed in the Circuit Court of the United States for the Pennsylvania District involving a man named Gideon Henfield.  He was charged with “illegally enlisting in a French privateer.” There was a grand jury selected for that case (sitting in Richmond, Virginia). The duty of giving the “charge” or “instructions” to the grand jury fell upon then Chief Justice of the United States, John Jay (the first Chief Justice), who was “riding circuit” at that time to hear local cases, as required by the first Judiciary Act.

In Chief Justice Jay’s charge to the grand jury, he included the following:

By their constitution and laws, the people of the United States have expressed their will, and their will so expressed, must sway and rule supreme in our republic. It is in obedience to their will, and in pursuance of their authority, that this court is now to dispense their justice in this district; and they   have made it your duty, gentlemen, to inquire whether any and what infractions of their laws have been committed in this district, or on the seas, by persons in or belonging to it. Proceed, therefore, to inquire accordingly,  and to present such as either have, or shall come to your knowledge. That you may perceive more clearly the extent and objects of your inquiries, it may be proper to observe, that the laws of   the United States admit of being classed under three heads of descriptions.

                    1st. All treaties made under the authority of the United States.
                    2d. The laws of nations.
                    3dly. The constitution, and statutes of the United States.

...

Whenever doubts and questions arise relative to the validity, operation or construction of treaties, or of any articles in them, those doubts and questions must be settled according to the maxims and principles of the laws of nations applicable to the case.

As to the laws of nations – they are those laws by which nations are bound to regulate their conduct towards each other, both in peace and war. Providence has been pleased to place the United States among the nations of the earth, and therefore all those duties, as well as rights, which spring from the relation of nation to nation, have devolved upon us. We are, with other   nations, tenants in common of the sea – it is a highway for us all, and all are bound to exercise that common right, and use that common highway in the manner in which the laws of nations and treaties require.

So, it was very early in the history of the United States that international law was established as an integral part of U.S. law, to be both recognized and applied by the courts. However, that position is now very controversial, as a part of the U.S. body politic now disputes it.

Although the whole subject of the use of international law by courts of the United States is controversial, two recent decisions of the United States Supreme Court have shined a light on a method by which international law and international norms, as well as those of foreign states, can be recognized and considered, at least by U.S. federal courts.

The first case, titled Atkins vs. Virginia,[ii] decided in 2002, involved the question of whether the imposition of a death penalty sentence to a mentally retarded defendant in a criminal case violated the prohibition against cruel and unusual punishment contained in the 8^th Amendment to the U.S. Constitution.  The Supreme Court, in a 6 to 3 decision, ruled that it did.  The controversy surrounding the opinion involved not only the question of the correctness of the decision, but also the use in the majority opinion of foreign law to justify its judgment.  The majority opinion made reference to "evolving standards of decency that mark the progress of a maturing society," as demonstrated by trends in not only U.S. state courts, but also in those of European nations.  The majority opinion cited passages from an amicus curiae brief submitted by the European Union.  The then Chief Justice, William Rehnquist, in a dissenting opinion, criticized “the Court’s decision to place weight on foreign laws.”

The second and most recent case was decided in 2005.  The issue in Roper v. Simmons[iii] was the constitutionality of a death sentence imposed on a boy in Missouri charged with the murder of a woman at a time when he was only 17 years old.  The evidence of guilt in the case was “overwhelming” and the jury returned a verdict of “guilty” and recommended the death penalty.  The trial judge followed the recommendation and sentenced the boy to be executed.

The Supreme Court, again invoking the “evolving standards of decency” test, overturned the death penalty judgment, holding that the death penalty for a person under the age of 18 years at the time of the commission of the crime constituted cruel and unusual punishment in violation of the 8^th Amendment and was thus invalid.  The vote by the nine justices of the Court was 5 to 4.

To support its decision, the majority opinion relied on: (1) sociological and scientific research; (2) the increasing infrequency of state courts in applying the death penalty to juveniles; and (3) the practices of other countries and the provisions of an international treaty.

At the time of the decision only seven countries other than the United States had executed juvenile offenders – Iran, Pakistan, Saudi Arabia, Yemen, Nigeria, the Democratic Republic of the Congo and China.

What is revealed in these two decisions is a modern mechanism for bringing international law and international norms into the domestic jurisprudence of a country.  The U.S. Supreme Court, in adopting the “evolving standards of decency” standard for application to the issues of the validity of the death penalty for retarded persons and persons under the age of 18 years, created a window through which the laws and practices of individual states within the United States and the laws and practices of the international community can be viewed for appropriate use in a particular case. This same method can be adopted by the courts of other countries. In that way, international and foreign law can be introduced to those countries where they are not now recognized or used, or are subservient to domestic, laws, and international law can become better established as a dominant force for good in the world.

---

[i] See Brierly, The Law of Nations (6^th edition 1963) at pp. 86-93.
[ii] 536 U.S. 304 (2002).
[iii] 533 U.S. 551 (2005).