Human Rights Defenses in US Courts

I think domestic courts should faithfully recognize the obligations imposed by international law. The Supremacy Clause of the United States Constitution gives legal force to foreign treaties, and our status as a free nation demands faithful compliance with the law of free nations.

—Sandra Day O’Connor ¹

I. Introduction

In the last decade of the twentieth century, human rights have assumed new prominence in diplomacy and in law. With the end of the Cold War, regimes in the developing world that violate rights can no longer survive by allying with a major power. Eastern Europe is being drawn into European human rights institutions. Economic integration in Europe is enhancing the role of institutions that enforce rights standards. In Africa, a continent-wide human rights commission is beginning to play a meaningful role, and political change in the Republic of South Africa has created a strong new voice calling for rights observance on the African continent. In the Western hemisphere, a regional human rights court is testing its strength and beginning to decide important cases. Rights violations have become an occasion for military intervention, as witnessed by the UN actions against Iraq for its treatment of Kurds and Shi’ites, and against Haiti for failing to allow an elected president to govern.

The trend towards acceptance of human rights norms has not bypassed the United States. Although, by virtue of its economic and political position, the United States is somewhat insulated from pressure on human rights issues, European states have begun to target the US human rights record. Western Europe no longer uses capital punishment, and a number of European states refuse to extradite persons to the United States if they face the death penalty. Before they will extradite, these states require the United States to agree not to impose the death penalty. ² The European Union is pressing the United States on the question of the privacy of personal data held in data banks, finding the practices of US financial institutions deficient in protecting consumers’ privacy rights. Under a 1995 European Union directive, European financial institutions may, as a sanction, stop sending financial information to the United States if it does not improve the protection given to personal data by 1998. ³

Having long resisted ratifying major human rights treaties, the United States has recently become a party to four important treaties: the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention Against Torture), ⁴ the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention), ⁵ the International Covenant on Civil and Political Rights (ICCPR), ⁶ and the International Convention on the Elimination of All Forms of Racial Discrimination (CERD). ⁷ Although the United States’ motivation for ratification was more to enhance its own standing to criticize others than to accept new obligations, these new treaties contain important guarantees that may expand rights in the United States.

US legislation and case law also have increased rights protection in certain respects. For example, the Torture Victim Protection Act ⁸ allows a victim of torture to sue the alleged torturer regardless of the nationality of either party, and regardless of the location of the alleged act of torture. ⁹ The Genocide Convention Implementation Act ¹⁰ provides for the prosecution of US nationals for genocide, even if the genocide is committed abroad. ¹¹ Federal courts have utilized a statute dating back to the Judiciary Act of 1789 to allow a cause of action against rights violators who commit torts in “violation of the law of nations.” ¹²

One major recent trend in human rights law around the world is an increased application of human rights norms by domestic courts. By virtue of constitutional provisions or judicial initiative, courts apply human rights norms as if they were locally enacted. To date this trend has had little impact in the United States, where one finds some application of human rights norms in such situations, but more often an avoidance of these norms. When US governmental agencies take adverse action against an individual, and the individual asserts a treaty-based norm in...