International Law in the United States

Question: Does the US Supreme Court care about international law?

Kal Raustiala:  Well, I think in a lot of instances the Supreme Court has to pay attention to the laws of other sovereigns because the case implicates them in some way, but the more general--  The reason this is a controversial issue is when the court seems to be looking to other countries for guidance on a controversial issue like the death penalty, and there I am of the view that looking to foreign law is a little bit like looking to social science data. Right. So courts sometimes look to social scientists to tell us something about the world so that that informs their judgments, and we have certain background assumptions, right, and we want to make sure they accord with reality. So I think it’s a bit like that, that it should inform our judgment and our deliberation but by no means determine it and that seems to me a- should be a relatively uncontroversial approach, but of course that’s not the case and many people are highly resistant to this.

Question: Can American laws reach beyond our borders?

Kal Raustiala:  Well, for American citizens we’re generally protected against the U.S. government by the Bill of Rights wherever we are, right, so for most of U.S. history that wasn’t the case. We thought that once you left the United States you essentially left the legal system and the federal government could try you, arrest you, whatever the case may be and you didn’t have those protections. That changed when the Supreme Court ruled in a case involving the wife of a military officer. She had murdered her husband in England in the 1950s at a military base and the question was whether she could be court martialed and the court had said no. A court martial of a civilian would violate her Sixth Amendment rights to a trial by jury. So Americans are generally protected anywhere they go. It’s not the case for foreigners, right, for aliens. We haven’t tested all of the--  We have many rights in the Constitution but that’s the generally understood position.

Question: What rights do immigrants have?

Kal Raustiala:  Well, when immigrants are here, when they’re actually inside the United States, we generally treat any foreigner noncitizen the same way that we would treat an American citizen for let’s say criminal justice purposes. So if you’re arrested on the street and you’re from France, you have a right to be free of unreasonable search and seizure in the same way that an American citizen would. The big difference really relates to your presence here in the first place and the ability to be deported so immigrants can be deported--there is a complicated set of rules--can be sent out and that’s a much easier process and much less rule bound. So our- I guess our fundamental approach is to say we treat everyone more or less equally when they’re here but the ability to get here, right, to cross the border, that’s relatively ungoverned. So there’s no rule that says anyone who arrives at an American airport can enter the United States. Right. Immigration officials can say, “We’re keeping you out” for a whole host of reasons.

Raustiala outlines the rights of Americans outside the U.S., and the rights of outsiders while in America.

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