The Biden administration has much to do to restore the United States' credibility as a human rights leader and to strengthen the human rights system in an era of rising right-wing nationalism, authoritarianism, and competition for global power. In doing so, it needs to lead by example by putting its own house in order, and act with both courage and humility in the face of deep global skepticism and distrust. Specifically, the administration should pursue five stages of engagement on human rights: reverse and revoke measures taken by the Trump administration, reaffirm the United States' traditional commitments to human rights at home and abroad, rebuild the State Department and diplomatic corps, reengage with international and regional mechanisms through bilateral and multilateral diplomacy, and reconceptualize the United States' twenty-first century relationship to human rights. All of the other topics addressed in this symposium – climate, health, elections, migration, structural racism, and trade – implicate human rights. None can be adequately addressed without a robust U.S. human rights agenda.
What is, or should be, the relationship between claims of violations of the right to manifest one's religion as a result of a generally applicable law or policy, and claims of indirect discrimination on grounds of religion? The interrelationship of human rights protections is not a new question. Just as rights may conflict, rights may also overlap. The arrest of a human rights activist for expressing her views could violate both the prohibition against arbitrary detention and her freedom of expression. Excessive use of force against peaceful demonstrators could violate their rights to freedom of assembly, freedom of expression, and security of the person, and the prohibition against torture and cruel, inhuman, or degrading treatment or punishment. Certain actions or inactions may implicate specific rights, such as the rights to language and culture, and to freedom of religion, opinion, or belief, and may also constitute discrimination on those same grounds. The relationship between closely related rights such as the freedoms of expression and assembly also may not be well-elaborated because human rights courts and other bodies at times may, for reasons of economy, restraint, or institutional tradition, refrain from examining some claims once they have found violations of others.
This Essay explores the role of "embedded" international law in U.S. constitutional interpretation, in the context of extraterritorial application of the Constitution. Traditional U.S. understandings of the Constitution's application abroad were informed by nineteenth-century international law principles of jurisdiction, which largely limited the authority of a sovereign state to its geographic territory. Both international law and constitutional law since have developed significantly away from strictly territorial understandings of governmental authority, however. Modern international law principles of jurisdiction and state responsibility now recognize that states legitimately may exercise power in a number of extraterritorial contexts, and that legal obligations may apply to situations abroad over which states exercise "effective control." International bodies, including the European Court of Human Rights, have applied the principle of effective control to constrain state conduct abroad. Prior to the Supreme Court's decision in Boumediene, however, embedded international norms had produced a bifurcated approach to the extraterritorial Constitution. Rules governing the Constitution's application to U.S. nationals abroad reflected an evolutionary relationship between international and constitutional norms, evolving largely in concert with modern international doctrines. The United States, however, asserted an entrenched approach to the Constitution's extraterritorial application to aliens, that continued to be dictated by antiquated, territorial conceptions of international jurisdiction. In adopting a functional approach to extraterritoriality in Boumediene, the Supreme Court abandoned formalistic limits on the Constitution's application based on formal sovereignty or citizenship, and returned to an evolutionary framework. Much work remains to be done in elaborating on the Boumediene test and applying it to particular constitutional provisions and contexts. But the Court's evolutionary approach opened a space ...
At least since Alexis de Tocqueville wrote in 1831, the idea that America is distinctive from other nations has permeated much political and social commentary. The United States has been variously perceived as unique in its history, its culture, its national values, its social movements, and its social and political institutions. While the term technically refers only to distinctiveness or difference, "exceptionalism" may have positive or negative aspects – what Harold Koh has called "America's Jekyll-and-Hyde exceptionalism." In the legal realm, claims of exceptionalism have been offered to support what Michael Ingnatieff identifies as "legal isolationism" – or refusal by domestic courts to consider foreign practices and international legal rules in the construction of U.S. law.
What effect has Professor Henkin's work had upon your own thoughts or scholarship in the human rights field? My scholarly work spans the fields of international human rights and U.S. foreign relations law. I am particularly interested in the process by which human rights norms are implemented into domestic legal systems, the role the United States plays in promoting the internalization of human rights norms by other states, and the mechanisms by which the values of the international human rights regime are incorporated into the United States domestic legal system.
This Article seeks to challenge and redirect contemporary debate regarding the role of international law in constitutional interpretation based upon an examination of historical Supreme Court practice. The Article has three goals: It first marshals the weight of evidence regarding the Supreme Court's historical use of international law in constitutional analysis, to rebut the claim that the practice is new. It then analyzes the ways that the Court has used international law from a legitimacy perspective, and finally draws lessons from the historical practice to offer preliminary suggestions- regarding the normatively appropriate use of international law.
More than any Justice who has sat on the United States Supreme Court, Associate Justice Robert H. Jackson explained how our Eighteenth Century Constitution – that "Eighteenth-Century sketch of a government hoped for" – struggles both to preserve fundamental liberties and to protect the nation against fundamental threats. Drawing upon his collective experience as a solo practitioner with only one year of formal legal education at Albany Law School; government tax and antitrust lawyer, Solicitor General, and Attorney General in the Roosevelt Administration; Associate Justice to the Supreme Court; and Representative and Chief of Counsel for the United States at Nuremberg, Justice Jackson sought to explain how the foreign affairs powers were distributed within the national government, how they related to constitutional civil liberties, and the appropriate role of the courts in achieving that balance.
In Advisory Opinion OC-18 of September 17, 2003, the Inter-American Court of Human Rights ruled that international principles of nondiscrimination prohibit discriminating against undocumented migrant workers in the terms and conditions of work. The Court acknowledged that governments have the sovereign right to deny employment to undocumented immigrants, but held that such workers are equally protected by human rights in the workplace once an employment relationship is initiated. In other words, states may not further their immigration policies by denying basic workplace protections to undocumented employees.
The topic of this panel is civil participation in the global trading system, with a particular focus on Doe v. Unocal Corp. and use of the Alien Tort Statute (ATS) to enforce fundamental human rights norms against multinational corporations. These comments will therefore attempt to locate Doe v. Unocal and other ATS litigation in the broader efforts of civil society to establish and maintain normative principles for corporate responsibility in the global trading regime. This comment first explains the role of ATS litigation in the broader civil society context and the contribution of ATS cases to the development and enforcement of international human rights law. It then briefly responds to two recent criticisms of ATS litigation: that ATS litigation is spiraling out of control and that suits under the ATS improperly infringe on U.S. foreign relations. I argue that ATS litigation has played an important role in the recent overall global development of enforceable human rights norms, that traditional procedural and prudential mechanisms are working effectively to identify appropriate ATS claims, and that extraordinary measures such as the current administration's attempts to obtain dismissal of corporate ATS suits are contrary to longstanding U.S. human rights policy and simply damage the United States' standing as an international leader in the promotion and protection of human rights.
Does the United States have powers inherent in sovereignty? At least since the 1819 decision in McCulloch v. Maryland, conventional wisdom has held that national government is one of limited, enumerated powers and exercises "only the powers granted to it" by the Constitution and those implied powers "necessary and proper" to the exercise of the delegated powers. All powers not delegated to the federal government are reserved to the states and to the people. In the 1936 decision in United States v. Curtiss-Wright Export Corp., however, the Supreme Court asserted that federal authority over foreign relations operated independently of the Constitution and was inherent in the United States' existence as a sovereign, independent nation. Specifically, the Court, at the height of its pre-1937 scrutiny of federal authority, held that a joint resolution delegating to the President authority to criminalize foreign arms sales did not violate the non-delegation doctrine. This was true, Justice Sutherland wrote for the Court, because: [t]he broad statement that the federal government can exercise no powers except those specifically enumerated in the Constitution, and such implied powers as are necessary and proper to carry into effect the enumerated powers, is categorically true only in respect of our internal affairs. The foreign affairs powers existed prior to and independent of the Constitution, as essential sovereign powers: [T]he investment of the federal government with the powers of external sovereignty did not depend upon the affirmative grants of the Constitution. The powers to declare and wage war, to conclude peace, to make treaties, to maintain diplomatic relations with other sovereignties, if they had never been mentioned in the Constitution, would have vested in the federal government as necessary concomitants of nationality.
The fifty years since the adoption of the Universal Declaration of Human Rights have seen a revolution in the promulgation and universalization of human and labor rights. Human rights conventions have proliferated in the areas of civil and political rights, social and economic rights, and the rights of women, children, minorities, and refugees. Many of these conventions have been ratified by a majority of the nations of the world. International monitoring of human and labor rights compliance is conducted by international institutions such as the U.N. Human Rights Commission and the International Labour Organization (ILO), by regional entities such as the Inter-American Commission on Human Rights, by non-governmental organizations (NGOs) such as Human Rights Watch and Amnesty International, and by national governments. Since the end of the Cold War, significant steps toward international judicial enforcement have been made through the development of regional courts such as the European and Inter-American Courts of Human Rights, through the creation of the International Criminal Tribunals for the Former Yugoslavia (ICTY) and Rwanda (ICTR), and through the 1998 agreement to establish a Permanent International Criminal Court. Peacekeeping efforts such as that of the United Nations in East Timor and the military intervention of the North Atlantic Treaty human rights concerns. The ICTY's indictment last year of Slobodan Milosevic, a sitting head of state, was a striking pronouncement of the extent to which international human rights enforcement mechanisms have developed. Despite significant progress in the identification, definition, and promulgation of human and labor rights norms, however, international mechanisms for their enforcement remain underdeveloped. International monitoring bodies lack enforcement authority and rely substantially on the "mobilization of shame" to encourage governments to comply with international norms. The International Court of Justice (ICJ) remains limited in its effectiveness, and the ...
In Crosby v. National Foreign Trade Council, the Supreme Court invalidated a Massachusetts government procurement statute that barred state entities from doing business with companies that did business in Burma. The plaintiffs, an organization of private companies with foreign operations, challenged the law on constitutional and statutory preemption grounds, arguing that it improperly conflicted with federal foreign relations authority. The Supreme Court limited its holding to implied statutory preemption, finding that the Massachusetts provision improperly compromised the President's ability "to speak for the Nation with one voice." Crosby thus joined a long line of decisions in which the Supreme Court has applied the "one-voice" doctrine to address the validity of state activities impinging on foreign relations. The "one-voice" doctrine is a myth. It finds little support in the constitutional framework, which divides the foreign relations powers among the three federal branches, and even less in the actual practice of the government. Congress and the President have full power to expressly preempt state and local interference with foreign affairs, and they have exercised that power on occasion. But even more often they have tolerated, deferred to or even encouraged state and local measures impacting on foreign affairs. Neither Congress nor the President had expressly preempted the Massachusetts law at issue in Crosby, despite ample opportunity to do so. Quite to the contrary, repeated actions by both branches suggested an intent to tolerate the Massachusetts law. In the face of our constitutional history and this substantial evidence of federal practice, it was improper for the Court to preempt the statute on its own. This Article examines the "one-voice" myth in U.S. foreign relations and its application by the Crosby Court. Part I discusses the reasoning in Crosby and the Court's reliance on the "one-voice" doctrine. Part II reviews the history of the "one-voice" doctrine and argues that neither the constitutional text nor U.S. history supports the principle of a solitary (executive) voice in U.S. foreign relations. Part III examines contemporary U.S. practice regarding federalism and U.S. foreign relations, and contends that the United States has not only tolerated, but actively encouraged, independent state activities such as the Massachusetts Burma Law. The national government has done so both by preserving sub-national responsibility and autonomy in its treaty ratifications, and by declining to employ numerous political instruments available to both Congress and the executive to override state measures that diverge from national policy. The Article concludes that incorporation of the "one-voice" doctrine into the Court's implied statutory preemption analysis contravened the federal government's longstanding deference to the states in this area. The Court's reliance on the "one-voice" myth to strike down the Massachusetts statute merely allowed the Court to evade more searching inquiry into the legitimate state interests served by the Massachusetts procurement law and the proper balance of federal-state relations in this area. Indeed, under the most extreme interpretation of Crosby, the proposition that the nation should speak with one voice in foreign relations could be used to justify invalidating any state law that impacted U.S. foreign relations, however incidentally, regardless of the presence of a federal statute. If Crosby leads to a general practice of judicial invalidation of state and local measures that affect foreign affairs, at the behest of private litigants, regardless of the actions of the national political branches, it will reverse two centuries of constitutional practice and significantly reallocate power over foreign affairs.
In his article The Transformation of the Constitutional Regime of Foreign Relations, Professor Ted White argues that the early twentieth century saw a major shift in constitutional understandings and expectations regarding the distribution of authority in foreign affairs. According to White, until that era the foreign affairs power, like all other powers under the Constitution, were considered subject to a formalistic, essentialist world view in which powers were distributed by the text of the Constitution according to clear principles of federalism and separation of powers. Congress and the President could only exercise powers in this area that had been dedicated to them by the text of the Constitution or that were reasonably implied therefrom, with such exercise subject to the other constraints enumerated in the Constitution. Article II treaties made by the President with the advice and consent of the Senate were assumed to be the primary medium for the exercise of the foreign affairs power, and the treaty power also was assumed to be subject to the constraints of separation of powers, individual rights, and federalism.
