Foreign Law - a Friend of the Court: An Argument for Prudent Use of International Law in Domestic, Human Rights Related Constitutional Decisions

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I. INTRODUCTION

The basic tenets of human rights law do not exist in the vacuum of individual nations and local constitutions. (1) Their persuasive impact transcends borders. (2) The broad, global response to basic human rights law has a symbiotic relationship with narrow, domestic human rights decisions. (3) Relying upon international human rights laws and norms as persuasive authority when deciding domestic legal issues should not only be permissible; it should be encouraged. (4)

This note argues that U.S. courts, particularly the Supreme Court, should utilize international law as persuasive authority within the context of human rights related decisions. (5) Part II examines seminal U.S. Supreme Court cases in which international human rights law was a persuasive force, and contrasts treatment of foreign law in the Canadian and Australian courts. (6) In Part III, this note traces the history of international human rights law as persuasive authority in both Supreme Court and state decisions. (7) Part IV provides an analysis of why and how international human rights laws should be used as persuasive authority in the United States. (8) Finally, Part V concludes that consideration of foreign law within the framework of human rights related legal opinions aids the constitutional decision-making process in a manner similar to that of the amicus brief. (9)

II. FACTS

The debate regarding what, if any, role international law should play in human rights cases in the United States sharpened in recent years. (10) The subject is prominently featured in recently decided U.S. Supreme Court cases, as well as the confirmation hearing of Justice Sonya Sotomayor. (11) In the last decade, three influential Supreme Court decisions applied international human rights norms as persuasive authority, though not without controversy or condemnation. (12) The debate over the use of international law in domestic courts is not unique to the United States. (13) Countries around the world, including Canada and Australia, grapple with the proper place for international human rights law within their domestic constitutional decision making processes. (14)

A. Impact of International Human Rights Law on Juvenile Life Without Parole Cases

In 2009 the Supreme Court heard arguments in two cases, Graham v. Florida and Sullivan v. Florida, to determine the constitutionality of a juvenile life without parole (JWOP) sentence. (15) During the progression of each case, the petitioner utilized international law to support the argument that a JWOP is unconstitutional in non-homicide cases. (16) The thrust of the international law argument in both cases was that petitioner's sentence is "unusual" because few states would issue the same punishment for a juvenile non-homicide offense, nor would the sentence be imposed anywhere else in the world. (17) In May 2010, the Graham Court employed the aforementioned international law analysis to support its conclusion that the sentencing practice is unconstitutional. (18)

The international law portion of the petitioner's argument in Graham proceeds in two distinct steps: 1) establish foreign law as a factor that the Court uses when deciding human rights related issues, specifically in Eighth Amendment cases and 2) use international legal practices to underscore the "unusual" nature of a JWOP sentence. (19) Petitioner pointed out that the Court considers several factors to determine whether a sentence violates the Eighth Amendment, including: "a comparison of the sentence imposed to evolving standards of decency as reflected in the laws and practices of the States and the international community." (20) The brief was clear that international law is just one part of the whole, stating that no factor is dispositive in the Court's decision on the proportionality of a JWOP sentence. (21) Petitioner's argument proved to be effective, as it mirrored the Court's subsequent reasoning in the case's ultimate disposition. …