The Danger of International Law

Recently, I was interviewed by a Danish journalist who is writing an article on the 10th anniversary of the founding of the International Criminal Court. She wanted some opinions that were more skeptical of the prospects of international law, so she turned to me (for an overview of my thoughts on the subject see this post or this one).

Answering her questions got me to thinking about the state of international law, and some of its more problematic aspects. In particular, I find it interesting that the conventional wisdom is that the US is some kind of outlier on international law. There seems to be a sense that the US is stuck in some kind of barbaric, conservative past, while Europe and our other allies move forward into some kind of post-modern, international-law-abiding future. One obvious example of this is in the death penalty, where the US remains one of the only western countries to continue its practice. In fact, the death penalty provides a critical moment in the development of international law domestically. In Roper v Simmons, the Supreme Court considered the question of whether someone under the age of 18 could be executed for a capital crime. In the majority opinion, Justice Kennedy wrote that "our determination that the death penalty is disproportionate punishment for offenders under 18 finds confirmation in the stark reality that the United States is the only country in the world that continues to give official sanction to the juvenile death penalty" and that "the Court has referred to the laws of other countries and to international authorities as instructive for its interpretation of the 8th Amendment's prohibition of 'cruel and unusual punishment'." Kennedy went on to point to the UN Convention on the Rights of the Child (which the US had not ratified), the International Covenant for Civil and Political Rights, and the fact that of the seven other countries that had executed a minor since 1990 (Iran, Pakistan, Saudi Arabia, Yemen, Nigeria, the Democratic Republic of Congo, and China), each had either abolished the practice or publicly disavowed it. The upshot was international law was used as a mechanism to interpret the meaning of US domestic law.

While I don't disagree with the outcome, the decision is particularly troubling. Justice Scalia's dissent is of particular interest here. He wrote that the United States has a unique approach to many different kinds of law than does the rest of the world, and that the US shouldn't abandon those approaches simply because the rest of the world does things differently. And lest we think that everything the US does differently is of a more conservative bent, Scalia notes that:

a categorical exclusionary rule has been 'universally rejected' by other countries, including those with rules prohibiting illegal searches and police misconduct, despite the fact that none of these countries "appears to have any alternative form of discipline for police that is effective in preventing search violations." England, for example, rarely excludes evidence found during an illegal search or seizure and has only recently begun excluding evidence from illegally obtained confessions. Canada rarely excludes evidence, and will only do so if admission will "bring the administration of justice into disrepute." The European Court of Human Rights has held that the introduction of illegally seized evidence does not violate the "fair trial" requirements in Article 6, Sec. 1 of the European Convention on Human Rights.

...

And let us not forget the Court's abortion jurisprudence, which makes us one of only six countries that allow abortion on demand until the point of viability. Though the Government and amici in cases following Roe v Wade urged the Court to follow the international community's lead, these arguments fell on deaf ears.

This argument is made even more clear by an article in yesterday's New York Times about a lawsuit in Canada against a magazine that published an article by Mark Steyn claiming that "the rise of Islam threatened Western values (the article can be found here)." While this would undoubtedly be protected speech under the First Amendment here in the US, in Canada the laws are quite different:

Two members of the Canadian Islamic Congress say the magazine, Maclean’s, Canada’s leading newsweekly, violated a provincial hate speech law by stirring up hatred against Muslims. They say the magazine should be forbidden from saying similar things, forced to publish a rebuttal and made to compensate Muslims for injuring their “dignity, feelings and self-respect.” The British Columbia Human Rights Tribunal, which held five days of hearings on those questions here last week, will soon rule on whether Maclean’s violated the law.

As the Times notes, Canada isn't alone in its more restrictive stance towards freedom of speech:

Canada, England, France, Germany, the Netherlands, South Africa, Australia and India all have laws or have signed international conventions banning hate speech. Israel and France forbid the sale of Nazi items like swastikas and flags. It is a crime to deny the Holocaust in Canada, Germany and France.

Earlier this month, the actress Brigitte Bardot, an animal rights activist, was fined $23,000 in France for provoking racial hatred by criticizing a Muslim ceremony involving the slaughter of sheep.

Of course, there are those in America who think that the Europeans have it right:

“It is not clear to me that the Europeans are mistaken,” Jeremy Waldron, a legal philosopher, wrote in The New York Review of Books last month, “when they say that a liberal democracy must take affirmative responsibility for protecting the atmosphere of mutual respect against certain forms of vicious attack.”

Professor Waldron was reviewing “Freedom for the Thought That We Hate: A Biography of the First Amendment” by Anthony Lewis, the former New York Times columnist. Mr. Lewis has been critical of efforts to use the law to limit hate speech.

But even Mr. Lewis, a liberal, wrote in his book that he was inclined to relax some of the most stringent First Amendment protections “in an age when words have inspired acts of mass murder and terrorism.” In particular, he called for a re-examination of the Supreme Court’s insistence that there is only one justification for making incitement a criminal offense: the likelihood of imminent violence.

The imminence requirement sets a high hurdle. Mere advocacy of violence, terrorism or the overthrow of the government is not enough; the words must be meant to and be likely to produce violence or lawlessness right away. A fiery speech urging an angry mob to immediately assault a black man in its midst probably qualifies as incitement under the First Amendment. A magazine article — or any publication — intended to stir up racial hatred surely does not.

Mr. Lewis wrote that there was “genuinely dangerous” speech that did not meet the imminence requirement.

“I think we should be able to punish speech that urges terrorist violence to an audience, some of whose members are ready to act on the urging,” Mr. Lewis wrote. “That is imminence enough.”

This kind of thinking should be seen as the dangerous twaddle that it is. First, if we begin to relax the imminence requirement, how would we do that? Short of a direct incitement to immediate violence, what other kind of standard could we set? And who would judge? It's hard to imagine giving that kind of power to the government, as it would then be in charge of determining which of its critics falls afoul of the law. One only need look at the history of the Alien and Sedition Act, not to mention the modern fears over executive power in the hands of Bush, to see where this all leads.

But back to the point. Law is not good simply because it is law, nor is international law good simply because it is international law. Law is good when it reflects the interests and norms of its community. Just because the international community does one thing does not mean the United States should as well. And we certainly shouldn't fall into the trap of believing that international law is always advancing liberal or progressive values. There are many issues on which the US is still the vanguard of freedom. And our laws should continue to do that, no matter whither the rest of the world.