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When Foreign Courts Decide Our Own Law

It’s bad enough when American courts take social issues and political issues out of the hands of American citizens. What happens when our courts decide the law, not based upon our own Constitution, but based upon the wishes of foreign nations? How do you vote on that?

Overview:

1. In a 1999 death penalty case, The Supreme Court, citing judicial decisions from Jamaica, India, Zimbabwe, and the European Court of Human Rights said, “A growing number of courts outside the United States … have held that lengthy delay in administering a lawful death penalty renders ultimate execution inhuman, degrading, or unusually cruel.”

Note that this quote disregards the fact that the United States Supreme Court has ruled that capital punishment is permitted under our Constitution.

2. In a 2002 case that ruled that mentally deficient people convicted of murder could not be given a death sentence, Justice Stevens contended that “within the world community, the imposition of the death penalty for crimes committed by mentally retarded offenders is overwhelmingly disapproved,” citing a legal brief from the European Union as his authority.

That may be compassionate, and you may like the decision, but be aware that our system of criminal justice already recognizes that those not competent to understand their crimes (the legally insane) are not convicted in the first place. Justice Stevens simply used a European decision to go around our own laws.

3. Last year in the landmark Lawrence v. Texas decision that struck down the state’s sodomy statute, Kennedy, writing the majority opinion, referred approvingly to the British Parliament decriminalizing sodomy in 1967, the European Convention on Human Rights, and a 1981 European Court of Human Rights case. Referring to the two men seeking to have the Texas law declared unconstitutional, Kennedy wrote, “The right the petitioners seek in this case has been accepted as an integral part of human freedom in many other countries.”

It's not about the 14th Amendment or American civil rights, after all. The Lawrence sodomy case is instead about what they do and approve of in Europe. We can't vote in European elections, however.

4. Here is a quote from Justice Ginsburg about her philosophy:

"Our island or lone ranger mentality is beginning to change," Ginsburg said during a speech to the American Constitution Society, a liberal lawyers group holding its first convention. Justices "are becoming more open to comparative and international law perspectives," said Ginsburg, who has supported a more global view of judicial decision making.

Ginsburg cited an international treaty in her vote to uphold the use of race in college admissions.

5. In Oklahoma, a Mexican national was convicted of murder and sentenced to death. His conviction and sentence were upheld by Oklahoma courts. Then the matter went to the World Court. There is a treaty under which the United States has agreed to let Mexican defendants contact the Mexican consulate before trial. That, of course, is a right that American defendants do not have. The World Court decided that the man could not be put to death, because he had not contacted the consulate. It does not matter that contacting the consulate would not have changed the outcome of the trial in the least. The State of Oklahoma decided to obey the World Court and changed the man's sentence. Here's what one commentator had to say:

Not only did they properly treat a U.S. treaty as binding law, they also relied on a March decision of the International Court of Justice (ICJ) in The Hague. (The ICJ, the U.N.'s highest tribunal, is also often referred to as the World Court.) The result was to halt an execution that would have taken place May 18--the execution of Mexican national Osbaldo Torres, whose right to assistance from the Mexican consulate was not honored by the U.S.

Torres's case is important because it illustrates the increasing recognition that international law is enforceable in the United States. It is also important because it brings into sharp focus how the U.S.'s actions against non-citizens at home can have a potentially major effect on the treatment of Americans overseas, and on our global image.

You might agree that the better thing to do was to let the defendant contact the consulate. CourtZero does not argue that point. However, the notion that this is precedent not only for the United States, but for individual states, to fall under the jurisdiction of international courts is sobering.

6. Simply put, we cannot vote for the people making our law anymore.

If you have any other examples to add to this page, send mail to postmaster@courtzero.org