I have been thinking a lot lately about what internationalism in rights-related legal discourse really means, and particularly about the kinds of relationships that can and should exist between international law and domestic law. Yesterday's nomination of Elena Kagan (left) to the US Supreme Court, about which Diane posted, and likelihood of questions on this arising during the confirmation hearings has brought this question into sharp relief for me once more. In particular, it has made me think about conceptions and articulations of the appropriate relationship between international human rights law and domestic constitutional rights law in jurisdictions—like the United States and Ireland—where the constitution contains fundamental rights guarantees and is founded on liberal democratic conceptions of justice, as is international human rights law.
Of course, some argue that international human rights law and constitutional rights law ought not to interact at all. In other words, that international human rights law applies firmly to the external sphere of a state’s operations and that constitutional law applies firmly to the domestic sphere. Never—this line of thinking would tell us—ought the two to meet. In my view, this perspective misses out on the main rationales behind international human rights law. Designed not only to help to articulate a set of relatively universal values (albeit subject to some areas of contention, usually—we ought not to forget—involving ‘culture’ and, inevitably, the rights and freedoms of women and children), international human rights law is to my mind a body of law with a distinct interest in the creation of synergies between these two alleged spheres. This is reflected in the fact that the clear preference of international human rights law’s institutions is for rights-related disputes to be resolved at the domestic level as expressed through the principle of subsidiarity/complementarity.
Recognising this requires us, as a body of scholars and practitioners, as well as political actors to recognise the parallelisms and reflections between international and domestic law. It also requires us to let go of the now somewhat outmoded hard dualism that suggests that there really are two separate spheres of operation when it comes to the actions of states vis-à-vis individuals. Rights-protecting law, whether we call it human rights law or civil rights law, is essentially based on a dignitary understanding of the individual as a person deserving of respect and of the state as an entity requiring of limitation. This basic, constitutionalist, understanding is common to constitutional and international human rights law, at least in the kinds of constitutional jurisdictions I am thinking of (i.e., as mentioned above, the liberal democratic state).
If this is the case, then it makes little or no sense to suggest that what a state does at home should be subject to different (and often more serious) limitation than is the state’s action abroad. It equally makes little or no sense to suggest that what a state does in relation to one of its citizens should be subjected to more strenuous limitation than what it does in relation to a non-citizen. Rather, the state is to be limited in its interactions with all individuals and the basic object of all rights-related law is to draw clear lines around states’ actions in this respect. To be sure, there will be some areas in which what domestic law allows and what international law allows differ. These ‘fuzzy lines’ (for the want of a better nomenclature) certainly represent the areas of the greatest contention and contestation, but even in those areas these two bodies of law can interact with one another; they can, as I put it in a recent article, become interlocutors with one another in a synergistic relationship towards harmonisation.
As the United States moves towards the appointment of its next Supreme Court Justice, it is appropriate for us to think about how these kinds of conceptualisations of the relationship between international and constitutional rights protections can impact on the decisions that our apex courts make. It is only if we accept that there are two different spheres of operation for a state that we can accept any proposition in favour of essentially limitless state action abroad or, indeed, in favour of undercutting domestic protections for certain classes of suspect individuals without having an eye to what international human rights law might have to offer to us by means of guidance. In her confirmation hearings for Solicitor General, Elena Kagan proposed that individuals suspected of offering material support might be subject to international humanitarian law (aka the laws of war) (New York Times article). But a true understanding of international law tells us that international human rights law standards are not discarded when international humanitarian law applies, albeit IHL is the lex specialis; what is her position on this and how it relates to domestic law?
It is to be expected that questions about international law and international human rights law’s relationship to the US constitution will arise in the course of Kagan’s confirmation hearings, and it will be interesting to see how she approaches the matter. The appropriate approach, I would argue, is to recognise the value in looking to international law for persuasive (and binding) guidance. My suspicion, however, is that admitting to such an approach might not be the smoothest path to confirmation for prospective Justice.