Jus Cogens And Section 1983
My wife and I just returned from four days on the left coast, Seattle to be exact, where we were visiting a couple of our children who have migrated west. One of the benefits of trans-continental travel is uninterrupted reading time during long travel days. My return trip was consumed by time reading through the first couple of chapters of International Human Rights Lawyering, by Ralph Steinhardt, Paul Hoffman and Christopher Camponovo. I feel as though someone has removed blinders.
I was deeply cynical about international law as a student. Long ago, I audited an international law course taught by Louis Henkin. We used a casebook edited in part by Oliver Lissitzyn. I was a graduate student in political philosophy at the time, and was puzzled enough by the very existence of the state. I could at least comprehend the law as rules backed by the force of this potent legal fiction. I had no comprehension of international norms. I stopped attending the class after several entirely unsatisfactory exchanges with Henkin. My loss, it turns out. Law review articles by Henkin pepper the notes in International Human Rights Lawyering.
The use of international law as a sources of rights enforceable in United States courts is electrifying. Our Supreme Court is retreating at breakneck speed from a commitment to litigation arising under 42 U.S.C. Section 1983. The qualified immunity doctrine now shields an ever-broader range of misbehavior by government officials. Last week's decision in Pearson v. Callahan, effectively freeing the judiciary to act even more boldly in granting immunity, will further hobble at act that is already limping.
What's a civil rights lawyer to do in this environment?
One possibility is to add international law claims to routine civil rights claims. There is an emerging body of law that is at once progressive and majestic in its reach. International covenants, treaties, and, most fruitful of all, an emerging consensus about something like fundamental law, are taking shape throughout the world. And our courts are bound to enforce and interpret these laws.
Consider the case of Hawkins v. Comparet-Cassani, 33 F.Supp. 2d 1244 (C.D.Cal.1999). Although this litigation ulitmately failed, it was a challenge to the use of stun-guns as a restraining device akin to torture, litigants sought relief by claiming that the use of these devices violated jus cogens. "Jus cogens norms of international law comprise the body of laws that are considered so fundamental that they are binding on all nations whether the nations have consetened to them or not," the court notes. The court also noted that there are no reported cases recognizing such a cause of action for "acts committed by United States government officials against a citizen of the United States."
The absence of such a reported case is obviously a sobering reminder that international norms may well fall on deaf ears in an American court. It does not help matters that a rump of the current Supreme Court is openly scornful of international law as a source of law binding in our courts. Antonin, Antonin, what world are you living in? (See the Scalia dissent in Roper v. Simmons, 543 U.S. 551 (2005)(holding that execution of juveniles does not comport with the Eighth Amendment interpreted in the light of contemporary international jurisprudence; Scalia's dissent seems to equate xenophobia with patriotism).
It takes lingering American exceptionalism entirely too far to contend this City on a Hill of ours is so far elevated above the fray that international norms do not apply to us. We're not living on Mount Sinai, after all; our founders were not proclaiming the Ten Commandments, merely a provisional stab at norms that worked here given the particular problems we faced in establishing a new nation several centuries ago.
International law is not a netherworld unreachable from within the confines of our federal constitution. The Supremacy Clause commands that treaties are a source of law in the United States. And recent cases such as Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980) command respect for the law of nations. Bringing this message to trial courts in a meaningful manner is a challenge I do not yet know how to meet. But it strikes me as a worthy effort, especially since our commitment to the 1983 claims is withering on a vine of judicial indifference.