The court and the “opinions of mankind”

During this 250th anniversary of the Declaration of Independence, it may be worth recalling the document’s only identified audience. Rather than single out the American public, the Declaration instead stated that “a decent respect to the opinions of mankind requires that they [the United States] should declare the causes which impel them to the separation” from Great Britain. Yet, for some time, that “decent respect” has been missing in action. From tariffs to Iran to the World Cup, concern about views from abroad has been the last thing on the mind of either the president or his enablers in Congress.

The current Supreme Court is, I fear, little better. At least that is the case with regard to one formal expression of the opinions of humankind: international law. Indeed, the increasing hostility to long established international human rights protections in particular is of a piece with its antipathy to rights that had been thought to be well established by the Constitution.

Consider treaties. Perhaps the most flagrant show of disrespect for the views of the international community came in a series of cases involving the right of foreigners detained in this country to have access to an official from the consulate of their home state. This right is guaranteed in the Vienna Convention of Consular Relations, a treaty to which the United States is a party and indeed took the lead in drafting. In time, the question arose whether a foreigner could waive the opportunity to argue that a state failed to inform them of their right to consult their home country’s consulate, much like a failure to inform a detainee of the right to an attorney under Miranda. Some states took the position that if the foreigner did not raise the issue at trial or on direct appeal, he or she could not present it in later proceedings. In its first case to consider the question, the Supreme Court held in pertinent part that the Convention permitted waiver. Yet the International Court of Justice, the multinational UN tribunal with the primary job of interpreting treaties, disagreed. If, given the opportunity, would the Supreme Court respect the expertise of the ICJ?

That opportunity arose in two cases once again involving foreign individuals who had been convicted in U.S. state courts without being informed of the right to consult their home nations’ consulates. In each, the convicted individuals claimed their right to raise the issue of consular access could not be waived and argued that the court should reconsider its earlier determination in light of the ICJ’s judgements. In both cases, the Supreme Court majority stressed that the ICJ’s holdings deserved “respectful consideration.” Respectful consideration, however, did not stop the court from rejecting the ICJ position and sticking to its previous view of the treaty. Thanks to these decisions, out of 182 state parties to the treaty, the United States became, and remains, the only one to have repudiated the ICJ’s rulings.

Indeed, these cases reflect a general pattern that goes back to the early years of the Rehnquist court. In one decision, for example, the court departed from an international consensus that an extradition treaty between two nations does not permit one state to evade the requirement of extradition proceedings by simply going into the territory of the other and kidnapping the desired suspect. In another, a majority adopted a unique interpretation of the 1967 Refugee Convention by allowing for turning back boats crowded with persons fleeing Haiti when they were on the high sears rather than U.S. waters. And this parochialism goes beyond human rights cases: In yet another decision, the court interpreted a bilateral investment treaty by applying the interpretative principles of domestic contract law rather than, as does the rest of the world, applying the distinctive principles used to interpret, well, treaties.

The court has been even more provincial when it comes to customary international law or CIL. Fully as binding as a treaty, a customary international law rule principally arises when a near consensus of the world’s states recognize a prohibition or a duty. If so, the resulting rule will bind every government whether it had previously recognized it or not, unless a particular state had earlier consistently objected to being bound. Even without a treaty, for example, the U.S. would be under an obligation not to return – the international law term is refoule – refugees back to states where they would have a well-founded fear of persecution on the basis of race, national origin, gender, or similar bases.

But don’t put your faith in CIL at the Supreme Court. In fairness, the justices are rarely called upon to apply CIL directly. But when those opportunities arise, the modern court, again, takes the road less travelled by the rest of the world. An especially consequential example arose in the 2017 case of Jesner v. Arab Bank, PLC. There the question involved whether a private corporation could be sued for facilitating a state’s violations of CIL, in this instance, through terrorism. The court answered with a categorial no. This answer not only failed to reflect an international consensus precluding corporate liability. Worse, it managed to ignore a growing international trend establishing accountability for corporations that assist states that engage in arbitrary detention, forced labor, and extrajudicial murder.

The court’s American exceptionalism is even more pronounced when international law – treaty or CIL – is relevant in interpreting U.S. statutes. In the classic 1804 case Murray v. Schooner Charming Betsy v. Murray, Chief Justice John Marshall declared that “[a]n act of Congress ought never to be construed to violate the law of nations [today’s customary international law] if any other possible construction remains.” Since then the Charming Betsy cannon has provided the principal opportunity, indeed requirement, for the Supreme Court to keep the nation on the right side of international law. So far as the current court goes, however, Marshall’s injunction has mostly been honored in the breach, mainly by ignoring Charming Betsy altogether. For examples, one need go no further than some of this past term’s major cases.

In Mullin v. Al Otro Lado, the court read the Immigration and Nationality Act to preclude persons not yet having “arrived in” the United States from seeking asylum under the statute. In similar fashion, the court in Mullin v. Doe decided that the federal Temporary Protected Status statute did not permit judicial review of the Trump administration’s determination that Haitians and Syrians can now be safely deported back to those countries, overturning the determination of the previous administration. Neither decision invoked the Charming Betsy canon. Rather, each holding makes it highly likely that the U.S. will return, or refoule, individuals to countries where they plausibly fear persecution. The Refugee Convention prohibits precisely this action. As does CIL. So much for “a decent respect for the opinions of mankind.” (To its credit, in Learning Resources, Inc. v. Trump the court did correctly determine that the International Emergency Economic Powers Act did not authorize the Trump “Liberation Day” tariffs. That conclusion would nonetheless have been substantially stronger had any of the opinions noted that a contrary holding would have been inconsistent with the nation’s international free trade obligations, not least under the World Trade Organization.)

It was not always thus. In the past, the court could sometimes embrace international law, and even get it right, in major, high-profile cases. Most notably, a slim majority in the post-9/11 case, Hamdan v. Rumsfeld, invoked Common Article 3 of the Geneva Conventions, which provides basic rights, including the right to be tried in a regularly constituted court, “in conflicts not of an international character.” The Bush Administration advanced the idiosyncratic argument that 9/11 was an international conflict insofar as foreign nationals training abroad had attacked the United States and such persons were thus not subject to such rights. The Supreme Court pushed back, rightly holding that “not of an international character” was a settled term of art, referring to a conflict between a state actor, such as the United States, against a non-state actor, in this instance, al-Qaida.

Though modern originalist justices are loathe to admit it, exactly this international orientation comports with the vision of the Constitution’s founders. One reason for the Constitution’s creation was the nation’s inability to uphold its treaty obligations under the Articles of Confederation. The new framework’s solution was to make the default position that treaties would be part of the self-executing “supreme Law of the Land.” As for CIL, President George Washington invoked it to prohibit Americans from violating the nation’s neutrality during the war between Britain and the new French Republic. And Marshall, in several landmark cases, relied upon it to rule against actions by the U.S. Navy during the quasi-war with France (for example, invalidating the seizure of a ship as exceeding the actions that Congress had authorized), or by the Madison administration in the War of 1812 (invalidating the executive’s seizure of enemy property at the outset of the war as contrary to the law of nations, which only Congress had the constitutional power to violate).

To be fair, the causes for and decline in respect for international law long predates the current court. Not least is the nation’s rise from weak republic to superpower consistently engaged in conflicts, hot and cold. Abroad, that transformation promotes the idea that the international rules that apply to everyone else don’t apply to us. At home, it also tends to promote executive power at the expense of Congress, and of the courts, who earlier were not afraid to use international law as a check.

But, as with much else, the decline has accelerated with the court’s current roster. In this regard, it cannot be a coincidence that a court dedicated to freeing the executive from certain domestic constraints, while also restricting statutory and constitutional rights, has followed a similar course in the international arena.