International Human Rights: The Convergence of Comparative and International Law

Transcription

1 International Human Rights: The Convergence of Comparative and International Law PETER E. QUINT It is perhaps appropriate that this symposium, in celebration of the career of Hans Baade, should conclude with some words on areas of convergence of comparative and international law fields of the law to which Hans has devoted so much of his work over the past decades. Of course, in a sense, the doctrines of international law have always relied to an important extent on comparative law when that phrase is broadly understood to mean the comparison of differing doctrines, rules, and practices adopted in various legal systems. In the words of the American Restatement echoing the well-known formulation of the Statute of the International Court of Justice international law may result from, or be derived from, a general and consistent practice of states followed by them from a sense of legal obligation or general principles common to the major legal systems. 1 Certainly the determination of such general [international] practice, or such general principles, has always required the collection and comparison of legal and diplomatic sources from many countries of the world. 2 But, in traditional views of international law, this process generally involved legal rules and diplomatic actions that were turned outward outside the border of the country itself. Accordingly, these were doctrines and practices that were already international in nature because they concerned the treatment by one state of other states or of the citizens of other states. For example, in the well-known American case of The Paquete Habana, 3 the learned opinion of Justice Horace Gray examined numerous diplomatic acts, such as that of Louis XVI referred to as our ally in the Revolutionary War who gave orders to the commanders of all his ships not to disturb English fishermen, nor to arrest their vessels laden with fresh fish. 4 The Court also examined subsequent parallel actions of French prize tribunals, with respect to the capture by French boats of English or Portuguese vessels. 5 Similarly, in the famous Lotus case, the Permanent Court of International Justice examined decisions from various countries, in order to determine whether a Turkish court could exercise criminal jurisdiction over the officer of a French ship after a collision on the high seas. 6 A fundamental turning point came immediately after World War II, when, in the light of that cataclysm, international law began to shift its focus toward an area that was previously thought to lie exclusively within the realm of internal, domestic law: the treatment by one state of its own citizens the field that we now call human rights. Jacob A. France Professor of Constitutional Law, University of Maryland. 1. RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES 102 (1962). 2. KONRAD ZWEIGERT & HEIN KÖTZ, INTRODUCTION TO COMPARATIVE LAW 7 8 (Tony Weir trans., 3d ed. 1998). 3. The Paquete Habana, 175 U.S. 677 (1900). 4. Id. at Id. at See S.S. Lotus Case (Fr. v. Turk.), 1927 P.C.I.J. (ser. A) No. 10 (Sept. 7). 605

2 606 TEXAS INTERNATIONAL LAW JOURNAL [VOL. 36:605 Yet dramatic as this development was in 1945, its basic principles were far from new, even then. As Hersch Lauterpacht made clear in a groundbreaking book published right at the end of World War II, ideas of human rights had for centuries been bound up with many of the central ideas and concepts of natural law. 7 Natural law, in turn, has long had a close, albeit somewhat uneasy, relationship with the principles of international law. Moreover, a state s treatment of the citizens of other states within its own borders that is, a state s treatment of aliens had been a traditional subject of international law. The same was true of a state s treatment of the citizens of other states in time of war. But the treatment by a nation of its own citizens had not emerged as a plausible subject of international law until the end of World War II. 8 A rather tentative step in this direction was taken in Article 6(c) of the Nuremberg Charter, the section of the Charter that defines crimes against humanity. 9 Unlike the case of the other Nuremberg crimes the planning and waging of aggressive war (crimes against peace) and traditional war crimes the definition of crimes against humanity was designed to include acts by the German regime against German citizens. Yet the step was tentative because the International Criminal Tribunal at Nuremberg required that any crime against humanity in order to be proven against the defendants must have been committed in connection with one of the more purely international crimes set forth in the charter: that is, crimes against peace or war crimes. 10 In the view of the Tribunal, apparently, the revolutionary concept of crimes against humanity was not sufficiently robust to stand on its own. Yet, as with the idea of equality in Archibald Cox s famous phrase, 11 the idea of international human rights, once loosed, was not easily cabined. Control Council Law No. 10, 12 under which later Nuremberg trials of lesser German officials were conducted, allowed prosecutions for crimes against humanity whether or not those crimes were related to the other Nuremberg offenses. Moreover, the Nuremberg trials were followed in 1948 by the issuance of the Universal Declaration of Human Rights, 13 a draft that drew, at least in inspiration, on Lauterpacht s seminal work. In 1966, the Declaration was followed, in turn, by the International Covenant on Civil and Political Rights 14 and the International Covenant on Economic, Social and Cultural Rights 15 international agreements that have now been signed by most of the nations of the world. These Covenants provide rules of international law for the proper treatment by a state of its own citizens. Particularly important in this context was the adoption and development of the European Convention on Human Rights particularly important because it has provided, in reality, the most sustained and elaborate system of international human rights enforcement. 7. See HERSH LAUTERPACHT, AN INTERNATIONAL BILL OF THE RIGHTS OF MAN (1945). 8. See, e.g., Diane Marie Amann, A Whipsaw Cuts Both Ways: The Privilege Against Self-Incrimination in an International Context, 45 UCLA L. REV. 1201, (1998). 9. Charter of the International Military Tribunal, Annex to the Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, Aug. 8, 1945, art. 6(c), 82 U.N.T.S See OFFICE OF CHIEF OF COUNSEL FOR THE PROSECUTION OF AXIS CRIMINALITY, NAZI CONSPIRACY AND AGGRESSION: OPINION AND JUDGMENT 84 (1947). 11. Archibald Cox, Foreword: Constitutional Adjudication and the Promotion of Human Rights, 80 HARV. L. REV. 91 (1966). 12. Allied Control Council Law No. 10, Punishment of Persons Guilty of War Crimes, Crimes Against the Peace and Against Humanity, Dec. 20, 1945, Control Council for Germany, OFFICIAL GAZETTE, Jan. 31, 1946, at Universal Declaration of Human Rights, G.A. Res. 217A, U.N. GAOR, 3d sess., Pt. I, Resolutions, at 71, U.N. Doc. A/810 (1948). 14. International Covenant on Civil and Political Rights, Dec. 19, 1966, 999 U.N.T.S. 171 (entered into force Mar. 23, 1976). 15. International Covenant on Economic, Social and Cultural Rights, Dec. 16, 1966, 993 U.N.T.S. 3 (entered into force Jan. 3, 1976).

3 2001] INTERNATIONAL HUMAN RIGHTS 607 Moreover, in the development of international law on the European level, comparative law has become a factor of increasing importance. Indeed, in creating the human rights instruments, comparative law played an inevitable role. In the drafting of the Universal Declaration of Human Rights, for example, the authority and universality of an influential earlier draft were substantially increased because provisions of the draft declaration were matched against parallel provisions in many of the constitutions of the world. 16 In drafting the European Convention on Human Rights, the founders started essentially with the Universal Declaration, but it was agreed that only those rights and freedoms could initially be guaranteed which were defined and accepted, after long usage, by democratic régimes. 17 The result was something that might be called the inalienable essence of the rights of the individual against the state. Various extraneous peculiarities of the individual systems were shorn away. What survived was the core of those fundamental constitutional principles a set of concepts rather like the structure that the German Basic Law calls the free democratic basic order 18 or what a famous American decision on the Fourteenth Amendment referred to as the very essence of a scheme of ordered liberty. 19 Furthermore, when it comes to the judicial interpretation of these fundamental principles now fundamental principles of European international law comparative law also plays an essential role. Growing out of agreements among different states, the European system often does not have a unitary political or cultural history or tradition to fall back on in the interpretation of specific guarantees of human rights. In its stead, the European Court of Human Rights has often found a substitute in the contemporary legal doctrines of the other European states either to show that the challenged practice is so aberrational in light of contemporary European values that it probably violates the charter 20 or, in contrast, to show that because several other European states allow the same practice, it probably does not violate human rights law as embodied in the European Convention. 21 In Europe, therefore, principles and doctrines that are gathered from various domestic legal systems by way of a method of comparative law often form the crucible and basis of international human rights first, to some extent in the delineation of the general written principles of the human rights guarantees, and then, with increasing importance, in the later judicial interpretation of those principles. Moreover, international and comparative law often considered together are playing an increasingly important role in the courts of national constitutional systems, particularly in transformed states like those of Eastern Europe, Russia, and South Africa which, having recently emerged from dictatorial or oppressive systems of various sorts, also do not have their own domestic constitutional case law to fall back on. Some of these systems have imported the human rights jurisprudence of international tribunals, as well as the comparative experiences of other national constitutional courts, in resolving novel problems. 22 In these cases, of course, comparative and international jurisprudence has been 16. JOHANNES MORSINK, THE UNIVERSAL DECLARATION OF HUMAN RIGHTS 7 (1999). 17. RALPH BEDDARD, HUMAN RIGHTS AND EUROPE 21 (2d ed. 1980). 18. See GRUNDGESETZ [GG] [Constitution] arts. 10, 18, 21 (F.R.G.). 19. Palko v. Connecticut, 302 U.S. 319, 325 (1937). 20. Dudgeon v. United Kingdom, 4 Eur. H.R. Rep. 149, (1981). 21. Cossey v. United Kingdom, 13 Eur. H.R. Rep. 622, (1990). 22. See, e.g., State v. Makwanyane, 1995 (3) SALR 391 (CC) (Chaskalson, P.) (S. Afr.). Cf. Constitution of the Republic of South Africa 39(1)(b) & (c) ( When interpreting the Bill of Rights, a court... must consider international law; and... may consider foreign law. ).

4 608 TEXAS INTERNATIONAL LAW JOURNAL [VOL. 36:605 employed to illuminate, rather than replace, the specific constitutional provisions of the national system. What remains to be seen is the extent to which the international and comparative principles of human rights will have an impact on older, more established constitutional systems. In England, an ancient legal system stands today on the very eve of an exciting experiment, in which the European Convention on Human Rights will become part of English law under a statute of Parliament, the Human Rights Act. The European Convention will become superior to rules and acts of the executive and the administration. The Convention will also furnish a guide for judicial interpretation of statutes of Parliament although, in the last analysis, European human rights law will not exactly be superior to those statutes. 23 Germany, unlike England, has had an elaborate system of constitutional review for decades and may not be quite so permeable by foreign and international rights; but the German system is also open to those rights in important ways. 24 In the United States, in contrast, we have a venerable and in many ways magnificent system of constitutional review; but one present price for this early development seems to have been a spirit of parochialism, a spirit that has guarded the closed borders, so to speak, of our constitutional culture. In an age of internationalism and globalism in many ways furthered particularly by the United States will that parochial spirit endure? Indeed, a great question for American jurists is whether we also can foresee a time in which international principles of human rights as embodied in international agreements or in the general principles of international law, and elaborated through our examination of comparative doctrine may have an effect on the internal definition of American constitutional rights. Of course, one can predict considerable resistance to such a possibility, and the doctrinal obstacles are no doubt formidable in some areas. Yet other constitutional formulations certainly offer possibilities. Could we say, for example, that what is cruel and unusual punishment under the Eighth Amendment should take into account not only the practice of the fifty states, but also developments in the industrialized countries of Western Europe? In these countries the death penalty is now abolished, and it is widely viewed in legal circles and among many other segments of the population as a form of barbarity that violates the core principles of international human rights. Such a possibility has indeed been raised in the death penalty jurisprudence of the Supreme Court. In finding that it would be unconstitutional to execute a person whose offense was committed when he was under the age of sixteen, a plurality of the Court reinforced its conclusions by invoking the practice of other nations that share our Anglo- American heritage, and... the leading members of the Western European community. 25 The opinion noted that the Court has previously recognized the relevance of the views of the international community in determining whether a punishment is cruel and unusual. 26 Yet, in the same case, three other judges rejected the use of comparative or international sources, declaring: We must never forget that it is a Constitution for the United States of America that we are expounding See, e.g., Ian Leigh & Laurence Lustgarten, Making Rights Real: The Courts, Remedies, and the Human Rights Act, 58 CAMBRIDGE L.J. 509 (1999). 24. See, e.g., BVerfGE 74, 358 (370). 25. Thompson v. Oklahoma, 487 U.S. 815, 830 (1988) (Stevens, J.). 26. Id. at 830 n Id. at 868 n.4 (Scalia, J., dissenting) (emphasis added). See also Stanford v. Kentucky, 492 U.S. 361, 369 n.1 (1989) (Scalia, J.) (finding that the sentencing practices of other countries are not relevant in deciding that the execution of a person whose crime was committed at the age of sixteen or seventeen is constitutional). But see

5 2001] INTERNATIONAL HUMAN RIGHTS 609 This unresolved debate continues in the death penalty cases. Dissenting from a denial of certiorari just last term, Justice Breyer cited cases from the British Privy Council, India, Zimbabwe and the European Court of Human Rights to suggest that it might be unconstitutional to execute prisoners who had already spent approximately twenty years on death row. Defending the use of sources from comparative and international law, Breyer noted that [w]illingness to consider foreign judicial views in comparable cases is not surprising in a Nation that from its birth has given a decent respect to the opinions of mankind. 28 Proceeding perhaps more adventurously beyond the death penalty cases, can we envision a form of argument in which the Second Amendment s right to keep and bear arms is discounted not only because it seems to be limited by the intention to sustain a well regulated militia, but also because (to say the least) it is not included within the internationally-accepted human rights that make up the core of the international free democratic basic order? Yet arguments along these lines might not always please advocates of the extension of constitutional rights or human rights as seen from the American perspective. 29 For example, free speech is rarely viewed in the laws of other countries and certainly not in international human rights law as providing as much protection as that afforded by the American First Amendment. Certain countervailing interests and values such as protection of honor and reputation, and various concepts of gender or racial equality are seen in most countries as requiring what American courts would view as serious limitations of speech or expression. Accordingly, the United States Senate has entered reservations to portions of the International Covenant on Civil and Political Rights and even to the Genocide Convention on free speech grounds. Moreover, in another area in which the United States stands pretty much alone, the constitutional law of abortion in several countries limits a woman s abortion rights more narrowly than the Supreme Court in Roe v. Wade 30 and later cases would allow. Indeed this limitation of women s rights is often explained in terms of the protection of the human rights (the right to life) of the fetus a view that was expressly rejected by the United States Supreme Court in Roe v. Wade. 31 So, in this area, we may be faced with pressures favoring a new form of selective incorporation. This would no longer be the selective incorporation of federal constitutional guarantees against the quasi-separate sovereignties of the states (an issue that attracted considerable constitutional debate at the time that Hans Baade, as well as some others of us here, began thinking about these problems). Rather, we might be faced by the selective incorporation of the human rights principles of the international community in the process of determining the sovereign constitutional law of the United States. Such a development would most likely take place through cautious [evolution], a process that Hans Baade has described in a different context as one of the hallmarks of the common-law method. 32 To go further and discuss whether or not this selective id. at 384, , 405 (Brennan, J., dissenting) (invoking comparative and international sources in coming to the opposite conclusion). Cf. Mark Tushnet, The Possibilities of Comparative Constitutional Law, 108 YALE L.J. 1225, (1999). 28. Knight v. Florida, 528 U.S. 990, 997 (1999) (Breyer, J., dissenting). 29. See Seth F. Kreimer, Invidious Comparisons: Some Cautionary Remarks on the Process of Constitutional Borrowing, 1 U. PA. J. CONST. L. 640, (1999). 30. Roe v. Wade, 410 U.S. 113 (1973). 31. Id. at Hans W. Baade, Original Intention : Raoul Berger s Fake Antique, 70 N.C. L. REV. 1523, 1541 (1992).

6 610 TEXAS INTERNATIONAL LAW JOURNAL [VOL. 36:605 incorporation could be undertaken in accordance with neutral principles would lead us into uncharted territory and would unduly expand the limits of these celebratory remarks. So let me simply conclude by underscoring my conviction that, in any event, we in the United States as our colleagues in other countries of the world will be increasingly required to confront, and I hope to welcome, the impact of comparative and international law on our human rights jurisprudence in the years to come.