At a recent national conference held in the United States to which I had been invited to speak, I was confronted with a fundamental question. The subject of my presentation related to international law. More specifically it related to international human rights law, and even more specifically it related to racial, ethnic and gender bias and how those issues are addressed internationally.

I started the presentation by posing three questions that, in the current U.S. climate surrounding international affairs, needed answering, at least to an audience consisting of U.S. state and federal judges and court officials. Is there such a thing as international law? If so what is its place in the legal heritage and jurisprudence of the United States? And last, why is international law important to the judicial process of the United States, and to the world legal systems?

In my presentation I framed the answers to the first two questions in terms of historical perspective, both in the world and in the United States. I presented a brief account of the history and development of international law generally, and then focused on international law as part of the legal heritage of the United States. The response to the third question was more problematic. Why, indeed, should national judges pay attention to international law in national courts, where questions presented are most often, and in some places even exclusively, local or national, rather than international?

The answer, I found, is multi-dimensional. The first answer is simple: certain international treaties to which nations are signatories, including the United States, are binding on those countries. For example, the provisions of the Charter of the United Nations, to which United States is a signatory and which has been ratified by the United States Senate, are binding on U.S. judges.

Because judges in countries that are parties (through signature and ratification) to a particular treaty are bound by the provisions of that treaty, the treaty’s provisions should be cited by the judges as law in those cases where the provisions are applicable, as a recognition of the controlling nature of the norm or standard or obligation found in them, in the same way that a constitutional provision or statute is cited as controlling authority in cases where they are applicable.

The second reason why international law is important for appropriate judicial opinions relates to perceptions of fairness.

In the year 2000, in response to a series of events in California that revolved around race and ethnicity, starting with the March 1991 beating of a black man (Rodney King) by members of the Los Angeles Police Department, through the O.J. Simpson trial in 1995, followed by the passage of a series of public propositions presented in later years to the California electorate that had racial and ethnic prejudice overtones, the Public Policy Institute of California commissioned a study. The study was to be conducted by  two social psychologists, Yuen Huo and Tom Tyler. The subject of the study was “reactions to legal authority in California by different ethnic groups.” The result was a 97 page report detailing the results of telephone interviews with over 1,600 residents of Los Angeles and Oakland “about their most recent encounters with a legal authority.” The groups that were identified were African-Americans, Latinos, and whites.

While it is not possible to discuss here the details of the study, the two researchers announced in the summary of their report two important findings that are relevant to this discussion:

1. The perception of fair treatment was the most important factor in forming reactions to encounters with the police and courts. It was more important than concerns about the outcomes people received from legal authorities.

and

2. Members of different ethnic groups share similar conceptions about what constitutes procedural fairness. An authority is perceived to have acted fairly if he or she is judged to be unbiased, concerned about the needs of the individual, and respectful of the individual.

These views about the role of “fairness” in the courts reflect at a very basic level the ideas of the legal philosopher John Rawls and his discussions about “justice as fairness.”

Ideas of fairness in judicial judgments are strengthened by citing as authority those laws, norms and standards that are binding on the particular tribunal that is making the decision or rendering the judgment. Thus citations to international law as found in treaties, and to other sources of international law that are binding on a particular nation and tribunal, reinforce the notion of fairness. Of comfort to a litigant is the knowledge that the weight of international authority is behind a particular decision, that the judgment is in line with what other nations and people view as the appropriate standard to be followed. Such decisions citing international law are in short, better decisions, more likely to be accepted by the general populace.

Unfortunately the United States has not very often enjoyed such comfort. Martha F. Davis, of the Legal Defense and Education Fund of the National Organization for Women (NOW) and a visiting scholar at Albany Law School in 2000, noted in an article appearing in the Albany Law Review that same year:

[I]nternational human rights norms are cited [by the U.S. Supreme      Court}…rarely. Amicus briefs addressing international human rights law – like that filed in 1982 in [the U.S. Supreme Court case of Bob Jones       University v. United   States by the International Human Rights Law Group - are typically ignored by the Supreme Court. Just last year Supreme Court    Justice Ruth Bader Ginsburg noted that India’s and Germany’s Supreme     Courts have looked at international precedents to evaluate affirmative action initiatives in their respective countries, but, she added, “the same readiness to look beyond one’s own shores has not marked the decisions of the court on which I serve.”

The third reason why citations to international law are important relates to issues of legitimacy. Borders of nations are becoming less and less significant in the conduct of affairs around the world. This is true in legal matters as well as commercial and cultural ones. Commercial and cultural globalization should encourage the globalization of legal norms and standards, if for no other reason than to have uniformity of decisions and outcomes. As the circle of an individual’s experiences expands so does awareness of other parts of the world. The inter-connectedness of events and activities of far away places and the wider world mesh with an individual’s own experiences, resulting in a realization that purely local approaches to legal problems are often inadequate and unfair.  A legal system that fails to recognize these truths and ignores legal norms and standards from sources other than one’s own geographical area risks becoming irrelevant.

Ms. Davis’ observed in the Albany Law Review referred to above that the usefulness of citing appropriate international law in judicial opinions today can be compared to the practice of U.S. courts in the early part of the 20^th Century examining “social science data as an aid to reaching decisions.” This practice was first introduced by Louis D. Brandeis in the case of Muller v. Oregon (1908), a Supreme Court of the United States case involving the legitimacy of a state law regulating the working hours of women.

Ms. Davis commented in her law review article that:

The Muller v. Oregon Court accepted this social science data not because it was necessary to reach a decision but because a decision which took this data into account would be better – more defensible as a matter of public policy, and responsive to the growing public expectation that decisions by all branches of government would reflect the growing body of social science knowledge as well as logical reasoning.

In the same way, citations to international legal standards and norms make a judicial decision stronger and more defensible in a world with diminishing borders and expanding commercial and cultural horizons.

The fourth reason why citations to international law are useful and important  could be titled a “fill in the gaps” approach. It is a truism that in any legal system, it is impossible to develop and adopt rules and standards that will cover or be specifically applicable to all of the issues in all disputes that might arise within a particular society. There are and always will be gaps in the applicability of a particular statute, regulation or rule to a particular dispute or controversy. Judges need sources of law that can supply norms or standards to fill those gaps. International law can provide that service.

Early American lawyers did in fact follow this approach. Professor Mark Janis of the University of Connecticut Law School and Oxford University, observed in his recent book, America and the Law of Nations 1776-1939 (2010):

[T]he law of nations gave the eighteenth-century English or American common law lawyer or court a way of finding the appropriate rule of law for a dispute touching on more than one legal system. Instead of deciding to apply English or American (or any foreign municipal) rule to such a multinational dispute, the court simply applied the rule drawn from the law of nations, a law theoretically applicable not only in an English or American court, but in foreign courts.

The fifth and last reason for citing international law in appropriate court opinions relates to the purpose and value of judicial opinions. It could be said that the value of a particular opinion is directly proportional to the reasons or rationale given in support of it. This truism creates a hierarchy of values for critiquing court judgments.  A judgment that gives no reasons for it is of value only to the parties to the dispute, and not much value at that. It tells who won and who lost and nothing more.

The next step up the value ladder is an opinion that provides only a single reason for the judgment – perhaps a citation to a single constitutional or statutory provision. The type of judgment is characteristic of judicial opinions in some civil law countries, where the citation of authority is to a particular provision of one of the legal codes applicable to a particular dispute. This type of judgment is generally of interest only to the parties to the dispute or at best in the particular geographical region where the judge sits or where the parties reside or where the issue arose.

The type of judgment that relies on two or more authorities for the particular outcome of the case is a more useful judgment. It obviously becomes of interest to a wider audience, and in common law countries, is more useful as a precedent.

The final type of opinion is one that uses a panoply of cases and authorities for the particular decision that has been rendered, including where appropriate international law.  This type of opinion is more likely to be viewed as one of substantial and robust character, one that would be of wide relevance and usefulness, both in terms of time and geography, and widely respected.

Which type of opinion is more likely to be viewed as fair? The answer is the fourth type of opinion, because it demonstrates that the decision was reached according to the application of strong and diverse norms and standards, ones followed by diverse peoples and governments. 

It seems to me that a judicial decision that refers to international standards and norms in a particular case, and shows how those standards and norms are relevant and should be applied in a particular decision, results in an inherently stronger opinion and judgment, one more likely to be respected and thought of as fair, which is the ultimate test for judging a judgment.