Title: Customary International Law: What It Is and What It Is Not
Abstract: INTRODUCTION The judges on this panel have been asked to reflect briefly on experiences with human rights litigation in U.S. Courts. The charge is simultaneously daunting and treacherous--daunting because subject covers so much terrain, and treacherous because we are required by our code of judicial conduct to refrain from public discussion of pending cases. Pending cases include cases decided in U.S. Court of Appeals that may return to our Court on remand from Supreme Court of United States. Accordingly, my remarks are not intended to intimate slightest view on any pending case. Nevertheless, my comments are, understandably, informed by my participation in cases now closed and rely on some of my published work in field. I also rely on some personal in study of international human rights law, and pro bono service in one of earliest NGOs working in field, International League for Human Rights. With your forbearance, I will comment on some history, including personal history, circling back to question of judicial experiences with litigation of this sort. I. HISTORY I turn to history for simple reason: history matters. It matters always, and it is relevant always, in law, and especially in Anglo-American legal system. As Holmes famously taught us, [t]he life of law has not been logic: it has been (1)--and by experience we of course mean history. The history of international human rights litigation in U.S. courts is important--and it is important to know that this history is relatively short. International human rights law in federal courts is, of course, merely part of larger international human rights movement that flowered in Western world in course of 1970s. It is no coincidence, I think, that seminal case in this field was decided by my Court in 1980, as this broader movement came to fore in public life. That case, Filartiga v. Peha-Irala, (2) breathed life into Alien Tort Statute (ATS). (3) That statute, whose very origins are mystery, had been virtually unknown and untouched since its enactment as part of Judiciary Act of 1789. Filartiga literally created whole new species of litigation, one aimed at harnessing authority of American federal courts to vindicate rights of aliens who claimed to be victims of war crimes and crimes against humanity. 1980 is year worth remembering. This is year when international human rights litigation under ATS began. In an important new book, The Last Utopia: Human Rights in History, Professor Samuel Moyn of Columbia University locates origins of current international human rights movement in zeitgeist of 1970s--not, as is so often assumed, in post-war response to Holocaust, English (Glorious), French, or American Revolutions, or even in worlds of ancient Greeks or Hebrews. (4) Professor Moyn's thesis suggests that those who celebrate origins of current international human rights movement are engaged in writing kind of history--the sort of history famously defined by Cambridge historian Herbert Butterfield as writing of history to serve interests of today's reigning ideas; in effect, look backward to serve interests of today's elites. (5) In Moyn's view of this Whig history, international human rights activists today avoid recognizing that their movement is wholly novel, claiming to find its historical roots in Nuremberg, or in Paris, Philadelphia, Athens or Jerusalem. (6) Contrary to this Whig history, Professor Moyn explains that it was in 1970s that the moral world of Westerners shifted, opening space for sort of utopianism that coalesced in an international human rights movement that had never existed before (7)--not movement that implied politics of citizenship at home, but rather, a politics of suffering abroad. …
Publication Year: 2011
Publication Date: 2011-09-22
Language: en
Type: article
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Cited By Count: 2
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