Tuesday, November 20, 2007

On International Law

I am exhausted, but finally finished my memo and finally have time to bring up what I wanted to yesterday.

In constitutional law we had probably the most stimulating class of the semester, which was too bad because I think most people were so busy with their memos they never go to do the reading.

For whatever reason con law starts to put most people to sleep about half through. Probably because I am a big picture kind of guy I stay pretty engaged the whole time (not true for all of my classes admittedly).

This time were talking about the legal battles involving the detainees at Guantanamo bay and the relevant legal precedent from the Civil War and World War II. Very relevant stuff.

One of the cases cited the Geneva Conventions. This really interested me as the direct application of international law in US courts is something I have been wondering about for a long time. I had asked professors about it before, but they always became very uncomfortable and didn't really want to talk about it.

In one of the cases plaintiff directly cited a breech in US obligations under the Geneva conventions as grounds for releasing an "enemy combatant." It was quick to reinforce it with US legislation, but the point is the same. On appeal, the Supreme Court avoided the question of whether US citizens could sue the US government for violations of the Geneva Conventions like it was the plague (just like my professors had). The lower court said a citizen could not, but the Supreme Court refused to deal with the issue.

All of this made me realize two things: 1. The really doesn't like to US international law in it s courts, if it uses it at all it uses elements worked into later US legislation 2. Most of my professors feel very out of their element when it comes to international law. Just made me realize why I am not always on the same page with my profs.

Personally, I think international law the US has owned up to should be grounds for suit in US court. I don't see things like the Geneva Conventions being much more than symbolic otherwise. If the US signs a treaty giving individual rights they should be able to sue if they think those rights are being violated.

Also, I liked this cartoon:


~*~*Watah a' run go a punkin belly*~*~ said...

I think this is my favorite post of yours to date.

I vaguely remember discussing this in CC (as our Turkish instructor was complaining about it) and being struck by how hypocritical the US can be with the Geneva Convention AND Declaration of Human Rights. Two totally different things, but equally despised and disliked in the USA it seemed...That's also why I found the weatherboarding vid so funny, but sad. It seems like denial, as you pointed out, is the was the US deals with the issue.

After a long heated session where the CC class took sides, we came to the conclusion that those 'pieces of paper' mean nothing..to American Courts. We decided that the International Law really is just the Strongest Rule, and that the strongest make (or ignore) the rules with few challenges. A depressing, but rather clear view at times. I was livid at this conclusion, but hopefully it will change...with the need of some other traumatic occurrence.

FYI: My friend Susan is a paralegal for the lawyers defending the Gitmo refugees and knows alot about this. Another friend, Stefano, actually works for Human Rights Watch and practices International law dealing with this stuff. Maybe you'd like to meet them! Throw a law party! I know too many of you lawyers anyway!

Check it out! Could be a cool summer job in there somewhere! Vito, I have "connections" :D


Barbarossa said...

I wouldn't say they mean they say nothing to American courts, its just they don't feel they can invoke them (though I would really like to know why other than it generally isn't done). From what I know about international law, especially creating an obligation to an individual, courts only use what had been reproduced in American statutes rather than the treaty or other source of international law itself.

That's interesting that you bring up the Universal Declaration of Human Rights. It is generally considered to be customary international law (binding international law), but you would never base an argument on it in US courts. You might mention it, but you would rely on the federal or state human rights statute.

In the US you also have a lot of debate about whether treaties are (if I remember my terminology) self-enacting, i.e. stand as law on their own right after signing or the provision have to be enacted by separate acts of Congress (which could make the end product a bit different by the time the thing comes out).

The thing is that is not the case in many other countries. Many allow their citizens to invoke international law in national courts. Even Turkey and Russia are parties to the European Court of Human Rights, which allows their citizens to sue them in international court for violations of their human rights provided for by international law.

So the US does things differently. That was made painfully obvious learning international law in Vienna last year and realizing how much material was taught as "general rules," but that the US had gotten out of.

The whole things frustrates me on two counts: 1. there should be some accountability for international law the US commits itself to as is the case in may other countries 2. this doesn't even seem to be a priority or an interest of most non-internationalist scholars (another example of the US peculiar insularness).

End of rant.

I would love to meet your friends! Also, I need connections because I am not going to make it on merit and lack the skills to sleep my way to the top.