The BLS-ACLU recently hosted Steven Watt, senior staff attorney at the ACLU Human Rights Program, to discuss the function of international law in U.S. courts. In his role at the ACLU, Watt serves as counsel for several high-profile human rights cases involving foreign-born clients.
Speaking to a packed audience of students, Watt opened his talk by defining different sources of international law that can be incorporated into U.S. litigation. These include international treaties; common law among countries, known as law of nations; and “soft laws,” such as United Nations resolutions. However, Watt explained, because only treaties signed by Congress may be considered binding, most of these other laws are applied either as a comparison to international law and standards or as a persuasive authority.
Watt provided several examples of recent human rights cases litigated by the ACLU in which international law has been used to influence a court’s decision. One case in Northern California disputed a policy that allowed immigrants, including those who are non-violent, to be chained and shackled in court. Although the ruling, which struck down the policy, was based on Fifth Amendment violations, the prosecution also referenced laws in Switzerland and Spain that deemed the chaining of prisoners in front of a judge to be cruel punishment.
Another pending case Watt mentioned involves a prisoner in Connecticut who was forcibly fed by prison guards while on a hunger strike. In this instance, said Watt, the ACLU asked of the court: “Is this man’s hunger strike, his protest, more important than the jail’s ability to enforce discipline?” While the issue of protest is a First Amendment issue, the court also looked at studies published in Germany on the legality of medical force-feeding.
Watt concluded that the most important factor in choosing to present international law as a standard for a U.S. court to consider is whether or not the law in question is more protective than U.S. law. For example, while many human rights standards are much stricter in most of the developed world, no international laws pertaining to freedom of expression defend civil liberties as strongly as the First Amendment. Watt further commented, “Federal courts are becoming more receptive to the question of, ‘Is the U.S. the only nation actually practicing this law?’”