Sandra Day O'Connor
Now on the whole, the United States judicial system leaves a favorable impression around the world, but in the treatment and United States Courts of international law there jury is still out. Because of my exposure to a great many legal systems around the world. I decided to speak to you today about the need for more knowledge about international law and transnational law. Why does information about international law matters so much? Why should judges and lawyers who are concerned about the intricacies of ERISA and the Americans with Disabilities Act and the bankruptcy code, care about issues of foreign law, and international and transnational law? The reason of course is globalization. No institution of government can now afford to ignore the rest of the world. The importance of globalization should not be underestimated. 30% of our gross domestic product is internationally derived. We operate today under a large array of international agreements and organizations, the UN Convention on contracts for the International sale of goods.
NAFTA, the World Trade Organization, the Hague conventions on collection of evidence abroad and service of process. And the New York convention on horsemen of arbitrage rewards dimension only a few. But globalization is much more than these agreements and organizations. It also represents a greater awareness of and access to people, some places are different from our own. The fates of nations are more closely intertwined than ever before. And we're more acutely aware of the connections as we learned in this country on September the 11th. These connections can sometimes be devastating rather than constructive. But as we also are learning in a post September 11 world, the power of international cooperation and international understanding is much greater than the obstacles we face.
The word "globalization" has many connotations, some positive and some negative. These varying views are reflective of both the potential of globalization to increase world harmony and the risk that it will suppress desirable differences and become simply a tool for imposing the preferences of powerful nations like our own on the rest of the world. harnessing the good that can come from our increasingly global world, while avoiding these pitfalls, involves and indeed requires, that those with power and influence in our country develop a greater knowledge and understanding of what's happening outside our nation's borders. This is true of courts and of lawyers as much as it is relevant for Government governmental bodies.
There's talk today about the internationalization of legal relations. We're already seeing it to a degree in American courts, and should see it increasingly in the future. This does not mean of course, that our courts can or should abandon their characters domestic institutions, very few treaties are directly enforceable in American courts. In the case, for instance, the Supreme Court declined to entertain a Vienna Convention claim in a death penalty case on the basis of a procedural default, as well as the belief that neither the text nor the history of the Vienna Convention clearly provides a foreign nation, a private right of action in US courts, to set aside a criminal conviction and sentence for violation of the consular notice provisions. On the some rare occasions when we're called upon to consider international law. However, the court on which I sit often refuses.
Just this term, we declined to hear a case about the definition of custody in The Hague Convention on International Child Abduction, despite the fact that the lower court ruling contradicted that, of course, and several of the other signatory countries. Since the Second Circuit decision in Filártiga v. Peña-Irala, American courts have entertained Alien Tort Claims Act and torture victim protection at cases involving international law violations by other sovereigns with significant impacts on the international terrain. In the Karadzic case, for instance, the second circuit has allowed a suit against Radovan Karadzic, for crimes against women in the Bosnian conflict, expanding the x coverage to include suits against those who not recognized as heads of states, exemplified by suits like these international human rights litigation has become a cottage industry in the United States. And yet our supreme court has not accepted an invitation to clarify these statutes, despite the explicit urging some some lower court judges who do not have such control over their own dockets.
For those federal courts, which have no choice but to entertain suits, like the crowds that case, they may do it without full awareness of the implications for the international arena. judgments against foreign leaders, which are rarely, if ever enforced in any traditional sense, play an important role in shaping diplomatic initiatives around the globe. And the impact of such litigation on international relations is not always positive. Whatever the merits allowing these suits court should be aware of the effects their decisions have in such important cases. Although international causes of action like these are still relatively rare, there are many other ways that international issues are coming before American courts.
This is because international law is no longer confined in relevance to a few treaties and business agreements. Rather, it is taken on the character of something called trans national law. But Philip Jessup has defined as all law which regulates actions or advance that transcend national frontiers. both public and private international law are included, as there are other rules which do not wholly fit into such standard categories. Although international law and the law of other nations are really binding on our decisions, conclusions reached by other countries and by the international community. Should at times constitute persuasive authority in American courts, what is sometimes called trans judicial ism, all these new words.
American courts have not, however, developed as robust a transnational jurisprudence as they might. Many scholars have documented how the decisions of the Supreme Court have had an influence on the opinions of foreign tribunal's. One scholar has remarked that when life for liberty is at stake, the landmark judgments of the Supreme Court of the United States giving fresh meaning to the principles of the bill of rights are studied with as much attention in New Delhi or Strasbourg as they are in Washington DC, or the state of Washington or Springfield, Illinois. This reliance, however, has not been reciprocal. There's been a reluctance on our current Supreme Court to look to international foreign law in interpreting our own constitution and related statutes. While ultimately we must bear responsibility for interpreting our own laws, there is something to be learned from other distinguished journalists who've given thought to the difficult issues we face here.
The Supreme Court held more than 200 years ago, that acts of Congress should be construed to be consistent with international law, absent clear expression to the contrary. Somewhat surprisingly, this doctrine is rarely utilized in the courts contemporary jurisprudence, I can think of only two cases, during my now more than 20 years on the court that have relied on this interpretive principle. We have also refused to consider international law and the law of other nations, when interpreting our own constitution. Were sometimes as to do so particular When dealing with Eighth Amendment challenges to the death penalty, litigants claiming that the execution of those who are juveniles when they committed the crime violates the International Covenant on Civil and Political Rights, as well as general international norms. And these claims are sometimes before us.
This term, we're considering a case involving the constitutionality of executing people who are mentally retarded. Several of the briefs focused on the practice in other nations. We've even received an amicable break from a group of American diplomats discussing the difficulties posed for their emissions by American death penalty practice. Until now, however, we have always held that when interpreting the meaning of the cruel and unusual punishment clause under the Eighth Amendment, only our national norms are relevant.
Although our reliance on internet And foreign law are rare. It's is rare, it is not non existent. For instance, we have looked international law notions of sovereignty when shaping our federalism jurisprudence, and international law norms and boundary disputes between American states. in areas such as these, it would be a mistake to ignore the rich resources developed in the law of nations. I suspect that with time, we will rely increasingly on international and foreign law and resolving what now appear to be domestic disputes. I haven't even scratched the surface of the issues and areas of application of foreign and international law and us courts. The fact is that international and foreign law are being raised in our courts more often, and in more areas than our courts have a knowledge and experiences to address. There's a great need for expanded knowledge in this field. And the need is now.
International law, which is the expression of agreement on some basic principles of relations between nations, will be a factor or a force in gaining a greater consensus among all nations concerning some basic principles of relations with nations, which as of now or withholding their agreement on some aspects, it can be an is a help in our search for a more peaceful world. A broad consensus on how nations should treat prisoners of war, as recently influenced our own government in our handling of prisoners taken in Afghanistan, who were perhaps not technically covered by the Geneva Convention, but who will nevertheless be treated largely as if they were acting in accord with international norms. may increase the chances for development of broader alliances, or at least silence support from other nations. The efforts we spend to educate law students, lawyers, judges, both in the United States and abroad about international law, our effort is well spent.
Kofi Annan has said, "The rule of law is essential to peace, development and the realization of human rights." The practice of law is a privilege but a privilege that carries with it a heavy responsibility to ensure respect for the law. American judges are becoming more aware of their responsibilities to respect not only domestic law, but the law of nations, but more effort is needed. The American Law Institute is the leading institution in forming written expression of legal principles which have evolved in many areas. Yes the law.
I'm impressed with the current efforts at the ALI to address several areas of international and foreign law. The work of the ALI during World War Two, led to the UN's Universal Declaration of Human Rights. In 1965, the ALI produced its first restatement of the foreign relations of the United States. The restatement second of conflicts of law in 1969. Address rules with elements in one or more foreign nations. An updated restatement third of the Foreign Relations law of the US has had considerable influence both in the United States and abroad. The transnational bankruptcy project began in 1993 at the ALI, and work began in 1997 on principles and rules of transnational civil procedure. work continues on the project that concerns the Hague Convention on jurisdiction and foreign judgments and civil and commercial matters. It's an exceedingly important project, which may lead to the enactment of a new federal statute I suspect.
Questions about reciprocity, and enforcement of non monetary judgments are proving to be difficult to resolve. And I think you may be considering a draft at this very meeting. It's gratifying and encouraging to see the variety of projects that the ALI is pursuing in the area of international and transnational law. developments like these are important if the American legal profession is going to take seriously the realities of practice in today's world, not only the ways in which transnational legal issues must be addressed, but also the potential for using the law to make a difference in the issues facing our world. And remarks I've given to a few groups of lawyers since September the 11th. I've noted that the need for lawyers in this difficult time
has not decreased, it has increased. Because of the scope of the problems we face understanding international law is no longer just a legal specialty. I think it's a duty we all share. Now, I like to say that we must not be tone deaf to the music of the law. There are lawyers who never hear the laws music. There are lawyers who indeed think there is none. Those who think laws just a business, one for which high fees can be charged and may be collected for the necessary services that only a lawyer can provide.
But if you understand and hear the law's music, to quote a former law school classmate of mine:
It's a music filled with the logic and clarity of Bach, the thunder, sometimes overblown and pompous, of Wagner, the lyric passion of Verdi and Puccini, the genius of Mozart, Gershwin's invention, Rossini and Vivaldi's energy, Aaron Copeland's folksy common sense, Beethoven's majesty, and unfortunately, not a little of the ponderous tedium of Mahler and the sterile intellectualism of Schonberg. Now the words [of the music of the law you can hear] are words of equality, justice, fairness, consistency, predictability, equity, wrongs righted, and the repose of disputes settled without violence, without undue advantage, and without leaving either side with bitter feelings of having been cheated. It is the music sung in the world…of childlike innocence in which the lion lies down with the lamb. [Perhaps] it is a world that never was nor ever will be. But it is a world worth living toward.
And I thank you, members of the ALF, for your appreciation of the music of the law, which, like real music, should transcend international boundaries. Thank you
.