International Human Rights Law in Soviet and American Courts
To what extent should domestic courts apply international law-specifically the international law of human rights? I would like to examine this question with reference to two very different states: the Union of Soviet Socialist Republics and the United States. For quite distinct reasons, neither of the two has yet fully embraced the idea of direct application in national tribunals of the body of international law that regulates the relationship between human beings and their own governments. As the post-Cold War era unfolds, it is time to ask whether either or both of these erstwhile adversaries might finally be ready for full-fledged implementation of international human rights law in national courts. The Soviet Union is going through such profound political and constitutional change that specific comments run the risk of obsolescence or irrelevancy. In early 1991, when this Essay was in preparation, the breakup of the Union came to seem inevitable, but what will emerge cannot yet be foreseen. Retrogressive developments have cast doubt on the prospects for advancing the rule of law under the current Soviet leadership. Nonetheless, I believe that the issue of domestic application of international human rights law will survive the current tumultuous period and will figure in the disposition of transcendent constitutional issues. The idea of consolidating domestic protection of international human rights is on the ascendant everywhere in the Soviet Union. If the Union splits up into sovereign states consisting of the present republics or comparable units, then the resulting entities will themselves have to deal with the issues explored in this Essay. They may well go about that effort more vigorously than the Union itself. Indeed, the republics, one after another, in their declarations of sovereignty and constitutional documents, have proclaimed commitment to the principles of international law guaranteeing human rights and fundamental freedoms.' If the Union survives, its leaders will not be able to ignore the demands of the people for institutions to implement internationally protected rights.2 The problem of assuring compliance with international obligations concerning human rights is high on the agenda of those preparing new constitutional drafts, and the recently established Committee of Constitutional Supervision has been given a mandate to apply international human rights instruments.3 Thus, the issue of domestic implementation of international human rights law figures prominently in political as well as legal debate,4 even as controversy swirls over what kind of state-or states-will rise from the ruins of the Soviet Union. With hindsight, it is easy to see that the international human rights movement helped bring about the changes sweeping the Soviet Union; it will require foresight to develop structures capable of consolidating gains achieved in the human rights field. One such institutional initiative should be movement toward application of international human rights law in domestic tribunals.5 In the pages that follow, I first survey the principal sources of international human rights law as they pertain to the Soviet Union and the United States. I then examine the legal infrastructure for giving effect to international law in the Soviet Union, and I note contrasts to the analogous infrastructure in the United States. 6 The positions taken by these two states reflect quite different attitudes toward law, toward lawmaking processes, and toward the role of courts in applying law. These different attitudes directly affect the two nations' respective approaches to the international law of human rights.
Lori F. Damrosch,
International Human Rights Law in Soviet and American Courts,
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/240