The 250th anniversary of the Declaration of Independence prompts reflection on its sole identified audience: the international community. The document calls for a “decent respect to the opinions of mankind,” an ideal that seems increasingly absent in contemporary United States jurisprudence. Notably, the current Supreme Court reflects this shift by resisting acceptance of internationally recognized legal norms, particularly in areas like human rights and customary international law.
This trend can be traced through several key cases. In matters concerning foreign nationals in custody, the U.S. has diverged starkly from international conventions. For instance, the Supreme Court ruled against the Vienna Convention of Consular Relations, which mandates consular access for detained foreigners, despite differing interpretations by the International Court of Justice (ICJ). The U.S. remains unique among 182 state parties in repudiating the ICJ’s rulings on this treaty.
Other significant court decisions include a bypass of extradition norms, allowing state-operating kidnappings to circumvent extradition processes, and a unique stance on the 1967 Refugee Convention, permitting the return of boats carrying Haitian refugees despite operating on international waters. This approach aligns more closely with domestic law interpretations rather than globally accepted treaty principles. A notable decision in BG Group PLC v. Republic of Argentina exemplifies this by applying domestic contract law to a bilateral investment treaty.
In matters of customary international law (CIL), which binds states beyond treaties, the U.S. judiciary continues its detachment. The 2017 Jesner v. Arab Bank, PLC ruling epitomized this by rejecting corporate liability in CIL violations, thereby ignoring a growing international trend towards corporate accountability for human rights abuses.
This reluctance to integrate international law echoes through statutory interpretation where the Supreme Court has bypassed principles like the Charming Betsy canon, which advises U.S. statutes to be construed consistently with international law. Recent decisions, such as in Mullin v. Al Otro Lado, heightened likeliness of refouling refugees, contradicting both the Refugee Convention and CIL.
While the current judicial approach might not fully align with historically internationalist constitutional framings, it reflects a broader geopolitical evolution. The rise of the U.S. as a superpower possibly contributes to diminishing respect for international law, consolidating executive power and affecting judicial willingness to use international law as a check on governmental actions.
For further insights into the complexities of the Supreme Court’s relationship with international law, readers can consult the full SCOTUSblog article.