The insidious wiles of foreign influence

Full text, since articles lapse into pay-only land in a week. Something of interest for the debate about the use of foreign laws as a guide in U.S. jurisprudence.

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The insidious wiles of foreign influence

Jun 9th 2005, from The Economist print edition

How much are other countries' laws influencing America's?

FOR the first century of their country's history, American lawmakers and judges repeatedly looked beyond America's borders, particularly to England, for precedents that could help their own legal thinking. Over the next century, America ardently supported efforts to create a framework of international laws and institutions. But since the end of the cold war, and particularly since the election of George Bush, it has grown increasingly resistant to “foreign” influence. Or so many outsiders claim.

In fact, the debate about the relationship between American law and foreign laws is more complicated than it appears, and Americans themselves are far from united (or consistent) on the subject. Some, such as John Bolton, set to become Mr Bush's ambassador to the United Nations, believe that treaties that constrain American sovereignty in any way are “not legally binding”; but Mr Bush cited Iraq's transgressions of international law as part of the reason to go to war. Mr Bush has pulled America out of the International Criminal Court (ICC) and the Kyoto agreement on the environment, ignored international laws of war and sent terrorist suspects into legal limbo in Guantánamo; yet America is among the strongest backers of global rules on trade, finance and international investment.

In general, there are three main areas of conflict. The first involves foreign treaties that America has subscribed to: what force do they have in America? The second, which tends to be focused on the Supreme Court, revolves around the relevance of foreign legal practices to America. The last has to do with how far overseas American courts can reach.

It is tempting to claim that America has always been worried by international treaties. (“Against the insidious wiles of foreign influence,” George Washington wrote in 1796, “the jealousy of a free people ought to be constantly awake.”) In fact, as long as global rules and institutions helped its own interests, America was happy to go along with them. But, as Philippe Sands, a professor of law at University College, London, argues in “Lawless World”, his latest book, “The rules which were intended to constrain others became constraining for their creators.” And so the pendulum swung back.

It has done so farthest under this president. George Bush senior, for instance, was quite keen on the International Court of Justice in The Hague (the World Court), calling it “a central and indispensable element of an international legal order”. By contrast, at a crisis meeting in the White House after the terrorist attacks on September 11th 2001 (admittedly strong provocation), his son is reported as saying: “I don't care what the international lawyers say. We're going to kick some ass!” And so he did. There followed a string of violations of international humanitarian law, including the indefinite detention of “enemy combatants” at Guantánamo and the torture of Iraqi prisoners at Abu Ghraib.

The infamous “torture memos” were part of this tendency. In them, administration lawyers argued that the president, as commander-in-chief, had the “inherent constitutional authority” to approve any interrogation techniques needed to protect the nation's security—regardless of the 1949 UN Convention Against Torture, ratified by America in 1994. Human Rights Watch, a non-partisan monitoring group, claims that America's abuse of detainees was the “predictable result” of Mr Bush's decision to circumvent the law.

In virtually every other country in the world, an international treaty or convention, once ratified, overrides domestic law. Not so in the United States; it simply becomes part of the ordinary body of American law. As such, it can be ignored by the president or Senate if national security, or even ideology, seems more important.

After the World Court found against the United States in 1986 for mining Nicaragua's harbours, President Ronald Reagan is said to have told his advisers to tear up the relevant treaty giving the court jurisdiction. When informed that this required two years' notice, he reportedly told them to tear up that provision too.

American conservatives, infuriated by criticism of their country's war on terror and the invasion of Iraq, have accused Europeans and human-rights groups of waging “law-fare” against the United States, using the “soft” weapon of international law in a bid to tie it down. The ICC is one of their favourite bêtes noires. In Mr Bolton's view, the court “runs contrary to...basic constitutional principles of popular sovereignty, checks and balances, and national independence”. America has signed bilateral agreements with more than 100 countries granting its citizens immunity from ICC prosecution. Yet it strongly supports other international courts, such as those set up to deal with genocide and other atrocities in Rwanda and ex-Yugoslavia.

Conservatives have been further inflamed by the increasing frequency of Supreme Court references to foreign laws and opinions. Tom DeLay, the House majority leader, recently lambasted Justice Anthony Kennedy for his “incredibly outrageous” citation of international views in the court's ruling outlawing the death penalty for juvenile killers.

Republicans have now introduced a resolution in Congress banning inappropriate reliance on foreign laws or judgments in interpreting the constitution. Although almost certainly a violation of the separation of powers, it has already attracted a lot of support.

In fact, the court has never based its decisions on foreign sources; it has merely made passing reference to them, notably in recent landmark rulings on sodomy, affirmative action and the execution of mentally retarded and juvenile killers. Moderates such as Justices Kennedy, Sandra Day O'Connor, Stephen Breyer and Ruth Ginsburg argue that, when confronted by a particularly intractable point of law, it simply makes sense to examine experiences and opinions outside America. “Laws are organic, and they benefit from cross-pollination,” Justice O'Connor has said.

For court conservatives, such as Antonin Scalia and Clarence Thomas, this is anathema. The court should not impose “foreign moods, fads or fashions” on Americans, argues Justice Scalia, who may succeed William Rehnquist as chief justice. To him, the practices of the “world community” are irrelevant: “Either America's principles are its own, or they follow the world; one cannot have it both ways.”

Yet Americans are happy to impose their own “fads and fashions” on others. Last week, a London court ruled that Ian Norris, the former head of Morgan Crucible, a British engineering firm, could be extradited to the United States because of price-fixing by two of the firm's American subsidiaries. The alleged offences took place between 1989 and 2000, when cartel activity was not a criminal offence in Britain. Mr Norris's lawyers said the case, the first involving extradition for an alleged antitrust offence, meant that no English executive with American subsidiaries or operations could any longer feel safe.

Under a treaty that came into force last year, extradition rules have been eased between Britain and the United States. America no longer has to present supporting evidence against someone it wants to extradite from Britain. It simply has to claim that an “extraditable” offence—one carrying a prison sentence of at least a year—has been committed. But because the Senate has so far declined to ratify the treaty, the new rules do not apply the other way round. If Britain wants to extradite a suspect from America, it still has to make out a prima facie case against him.

America's crackdown on white-collar crime goes further. Under its wire-fraud laws, anyone using an American internet server to contact colleagues or clients could face extradition, even though the alleged offence did not take place in America or involve American victims.

Foreign companies are getting worried, too, about the use of America's Alien Tort Claims Act, passed in 1789, which grants jurisdiction to American federal courts over “any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States”. This is increasingly being invoked by foreigners in America to sue international companies for alleged wrongs suffered outside the United States. One can imagine the rumpus if such a law were invoked, abroad, against an American company.

Often disputes sprawl over more than one of these areas. One example occurred last month, when the Supreme Court rejected, in a 5-4 ruling, a death-sentence appeal by a Mexican citizen in Texas who had claimed that he and 50 other Mexicans on death row in America had been denied legal help from their consulates.

In a ruling last year, the World Court upheld the Mexicans' claim. By denying them consular help, it said, America had violated the 1963 Vienna Convention on Consular Relations, ratified by the United States in 1969. Mr Bush, who as governor of Texas had signed many of the men's death warrants, angrily announced America's withdrawal from the protocol giving the court jurisdiction over such disputes. But, surprisingly, he also directed the state courts to “give effect” to the court's decision by granting “review and reconsideration” to the Mexicans' cases.

This a majority of the Supreme Court has now decided to do, and the case will go back to the Texas courts for review. But, in a dissenting opinion, Justice O'Connor said that the question of whether international law was binding on American courts was of such “national importance” that it should have been reviewed in the federal courts. It may yet end up there.