¹ Henkin, Constitutional Rights and Human Rights, 13 Harv. C.R.-C.L. L. Rev. 593, 594 (1978).

² Henkin, Rights: American and Human, 79 Colum. L. Rev. 405 (1979) [hereinafter Rights]; Henkin, International Human Rights and Rights in the United States, in 1 Human Rights in International Law: Legal and Policy Issues 25 (T. Meron ed. 1984); and Restatement (Third) of Foreign Relations Law of the United States §701 Reporters’ Note 8 (1987) (Henkin, Chief Reporter) [hereinafter Restatement]. See also Lillich & Hannum, Linkages Between International Human Rights and U.S. Constitutional Law, 79 AJIL 158 (1985). For innovative attempts to provide teaching materials to bridge, if not fill, the gap, see Materials on International Human Rights and U.S. Constitutional Law (H. Hannum ed. 1985); Materials on International Human Rights and U.S. Criminal Law and Procedure (H. Hannum ed. 1989).

³ See, e.g., Lester, The Overseas Trade in the American Bill of Rights, 88 Colum. L. Rev. 537 (1988).

⁴ Henkin, Rights, supra note 2, at 407. For an insightful discussion, see Christenson, An American Perspective on Key Human Rights in the U.S. Constitution (forthcoming).

⁵ Lester, supra note 3, at 537.

⁶ Id. at 543–44. For a recent Supreme Court case underscoring his point, see infra text at notes 56–60.

⁷ Henkin, Rights, supra note 2, at 415. Accord Lester, supra note 3, at 538.

⁸ The United States also has not ratified the American Convention on Human Rights, opened for signature Nov. 22, 1969, reprinted in Organization of American States, Basic Documents Pertaining to Human Rights in the Inter-American System 25, OEA/Ser.L/V/II.71, doc. 6, rev. 1 (1988), but, since being a citizen of one of the states parties thereto is not a prerequisite for service on the Inter-American Commission or Court of Human Rights, U.S. citizens regularly have been elected to both bodies.

⁹ See Read, The Protection of Human Rights in Municipal Law, in Human Rights: The Cape Town Conference 156 (C. Forsyth & J. Schiller eds. 1979). Several years later, the present writer wrote that, while their transplantation had been noted, the many provisions in African constitutions that often are identical to provisions in the Universal Declaration, the European Convention and other international human rights instruments had not yet been collected and compared. “What is clear beyond doubt is that the provisions in many African constitutions replicate international human rights law standards found in one or more of the international instruments, allowing domestic courts to apply international law indirectly when construing and applying constitutional standards.” Lillich, The Promotion of Human Rights by Domestic Courts: A Comparative Approach, in The Individual Under African Law: Proceedings of the First All-Africa Law Conference 160, 166 (P. Takirambudde ed. 1982).

¹⁰ [1988] 2 S. Afr. L. Rep. 702 (Gubbay, J.A.).

¹¹ Zimbabwe Const. §15(1) (“No person shall be subjected to torture or to inhuman or degrading punishment or other such treatment”), reprinted in Constitutions of the Countries of the World (A. Blaustein & G. Flanz eds. 1988).

¹² 356 U.S. 86, 101 (1958).

¹³ 429 U.S. 97, 102 (1976).

¹⁴ [1988] 2 S. Afr. L. Rep. at 717 (emphasis added).

¹⁵ Id. at 718 (citing Tyrer v. United Kingdom, 26 Eur. Ct. H.R. (ser. A), reprinted in 2 Eur. Hum. Rts. Rep. 1 (1979)).

¹⁶ Id. at 721 (emphasis added). In holding that the punishment in Ncube would have been inhuman as well as degrading, the Supreme Court of Zimbabwe actually may have reached a more humane conclusion than the European Court!

¹⁷ Mostly concerning slavery, the political rights of women, the law of war, and refugees. See R. Lillich, International Human Rights Instruments 10.1–120.7 (1988). The United States, after 40 years, recently ratified the Genocide Convention. 24 Weekly Comp. Pres. Doc. 1435 (Nov. 14, 1988). Genocide Convention Implementation Act of 1987, Pub. L. No. 100-606, 102 Stat. 3045 (1988).

¹⁸ 265 U.S. 332, 342 (1924).

¹⁹ Frolova v. USSR, 761 F.2d 370, 374 (7th Cir. 1985) (citing Sei Fujii v. California, 38 Cal.2d 718, 722–25, 242 P.2d 617, 621–22 (1952) (UN Charter non-self-executing)); In re Alien Children Educ. Litig., 501 F.Supp. 544, 590 (S.D. Tex. 1980), aff’d mem. (5th Cir. 1981), aff’d sub nom. Plyler v. Doe, 457 U.S. 202 (1982) (OAS Charter non-self-executing); Bertrand v. Sava, 684 F.2d 204, 218–19 (2d Cir. 1982) (Refugees Protocol non-self-executing).

²⁰ Message of the President Transmitting Four Treaties Pertaining to Human Rights, S. Exec. Docs. C, D, E & F, 95th Cong., 2d Sess., at viii, xi, xv, xviii (1978); Message of the President Transmitting the Convention on the Elimination of All Forms of Discrimination Against Women, S. Exec. Doc. R, 96th Cong., 2d Sess., at ix (1980); Message of the President Transmitting the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, S. Treaty Doc. No. 20, 100th Cong., 2d Sess. 2 (1988).

²¹ See Weissbrodt, United States Ratification of the Human Rights Covenants, 63 Minn. L. Rev. 35, 66–72 (1978).

²² For the views of various international lawyers to this effect, see International Human Rights Treaties: Hearings Before the Senate Comm. on Foreign Relations, 96th Cong., 1st Sess. 278 (Schachter), 280 (Anderegg), 285 (Inman), 288 (Henkin), 294 (Redlich), 300–01 (Garibaldi), 315 (Owen) and 348–49 (Lillich) (1979). See also Iwasawa, The Doctrine of Self-Executing Treaties in the United States: A Critical Analysis, 26 Va. J. Int’l L. 627, 669–70 (1986).

²³ Nevertheless, their indirect impact should not be discounted. As Prof. Paust recently reminded this Journal’s readers, “Although [non-self-executing] treaties cannot operate directly without implementing legislation, they can be used indirectly as a means of interpreting relevant constitutional, statutory, common law or other legal provisions.” Paust, Self-Executing Treaties, 82 AJIL 760, 781 (1988) (citing Iwasawa, supra note 22, at 686–92).

²⁴ 175 U.S. 677, 700 (1900).

²⁵ See Restatement, supra note 2, §115 Reporters’ Note 4. Compare Henkin, International Law as Law in the United States, 82 Mich. L. Rev. 1555, 1561–67 (1984) (customary international law may supersede prior inconsistent federal statute), with Goldklang, Back on Board the Paquete Habana: Resolving the Conflict Between Statutes and Customary International Law, 25 Va. J. Int’l L. 143 (1984) (contra).

²⁶ On treaties and the creation of the customary international law of human rights, compare Weisburd, Customary International Law: The Problem of Treaties, 21 Vand. J. Transnat’l L. 1 (1988) (treaties relatively unimportant), with D’Amato, Custom and Treaty: A Response to Professor Weisburd, 21 id. at 459 (1988) (treaties exceptionally important).

²⁷ 630 F.2d 876 (2d Cir. 1980).

²⁸ See supra note 19.

²⁹ Judiciary Act, ch. 20, §9(b), 1 Stat. 73, 77 (1789) (current version at 28 U.S.C. §1350 (1982)).

³⁰ 630 F.2d at 880 (summarizing unpublished decision of district court).

³¹ Id. At the time of the act in question, the defendant was Inspector General of Police in Asunciçn, Paraguay. Id. at 878.

³² Id. at 884.

³³ Section 702 identifies genocide; slavery; murder or “causing the disappearance” of individuals; torture or other cruel, inhuman or degrading treatment or punishment; prolonged arbitrary detention; systematic racial discrimination; and consistent patterns of gross violations of internationally recognized human rights as violations of customary international law. Indeed, it regards the above norms to be jus cogens as well. Restatement, supra note 2, §702 comment n and Reporters’ Note 11. See Lillich, Remarks, 79 ASIL Proc. 84 (1985).

³⁴ See, e.g., Fernandez-Roque v. Smith, 622 F.Supp. 887, 903 (N.D. Ga. 1985), rev’d in part & aff’d in part & dismissed as moot in part sub nom. Garcia-Mir v. Meese, 788 F.2d 1446, 1453 (11 th Cir.), cert, denied, 479 U.S. 889 (1986).

³⁵ See Forti v. Suarez-Mason, 694 F.Supp. 707, 711 (N.D. Cal. 1988).

³⁶ See id. at 712 (misconstruing the present writer’s affidavit to support this holding).

³⁷ See, respectively, In re Alien Children Educ. Litig., 501 F.Supp. 544,596 (S.D. Tex. 1980); De Sanchez v. Banco Central de Nicar., 770 F.2d 1385, 1397 (5th Cir. 1985); Guinto v. Marcos, 654 F.Supp. 276, 280 (S.D. Cal. 1986).

³⁸ See supra note 34.

³⁹ 622 F.Supp. at 902.

⁴⁰ Immediately after its holding quoted supra in the text at note 24, the Court added the following important caveats: “For this purpose [the application of international law by U.S. courts], where there is no treaty, and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations … .” 175 U.S. at 700 (emphasis added).

⁴¹ Defendants’ Reply Memorandum in Opposition to Habeas Corpus Petition 17–20, Fernandez-Roque v. Smith, 622 F.Supp. 887 (N.D. Ga. 1985). “[T]he necessary corollary to the rule announced in Paquete Habana is that the political and judicial organs of the United States have the power, based upon statute or a ‘controlling executive act’, to disregard international law.” Id. at 19.

⁴² 622 F.Supp. at 903–04.

⁴³ 788 F.2d at 1455. As Henkin rightly asserts, “There is no such principle. The President cannot disregard international law ‘in service of domestic needs’ any more than he can disregard any other law.” Henkin, The President and International Law, 80 AJIL 930, 936 (1986).

⁴⁴ 788 F.2d at 1455.

⁴⁵ See, e.g., Henkin, supra note 43, at 936–37.

⁴⁶ 108 S.Ct. 2687 (1988).

⁴⁷ Id. at 2696 n.34 (plurality opinion) and 2707–08 (O’Connor, J” concurring). The plurality opinion, written by Justice Stevens, reaffirms “the relevance of the views of the international community in determining whether a punishment is cruel and unusual.” Id. at 2696 n.31. Justice Scalia, in a dissent joined by the Chief Justice and Justice White, disagreed, arguing that “the views of other nations, however enlightened the Justices of this Court may think them to be, cannot be imposed upon Americans through the Constitution.” Id. at 2716 n.4. He recently reiterated this view in Stanford v. Kentucky, 109 S.Ct. 2969, 2975 n.l (1989).

⁴⁸ The approach, of course, is not new. Nearly 40 years ago, Prof. Schachter astutely observed that “[i]t would be unrealistic to ignore the influence … of the Charter as a factor in resolving constitutional issues which have hitherto been in doubt.” Schachter, The Charter and the Constitution: The Human Rights Provisions in American Law, 4 Vand. L. Rev. 643, 658 (1951). For an excellent survey and analysis of the seminal civil rights cases in which private parties, organizations such as the ACLU, and even the U.S. Government used this approach, with far more effect than is generally recognized, see Lockwood, The United Nations Charter and United States Civil Rights Litigation: 1946–1955, 69 Iowa L. Rev. 901 (1984). Scholarly support for it is found in the numerous articles cited in id. at 901 n.l, and in Committee on Human Rights, Human Rights Law, the U.S. Constitution and Methods of Judicial Incorporation, in 1983–1984 American Branch of the International Law Association, Proc. and Committee Reports 53, 59 n.8. For by far the most thoughtful attempt to develop an adequate theory of such indirect incorporation, see Christenson, Using Human Rights Law to Inform Due Process and Equal Protection Analyses, 52 U. Cin. L. Rev. 3 (1983). See also Lillich, Invoking International Human Rights Law in Domestic Courts, 54 id. at 367, 408–12 (1985).

⁴⁹ Lester, supra note 3, at 539.

⁵⁰ At the very least, through the invocation of the established principle of statutory interpretation that “an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains,” Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804), international human rights norms should have some impact in statutory construction cases. See Restatement, supra note 2, §114. British courts have followed this rule when faced with arguments based upon the European Convention. See McBridge & Brown, The United Kingdom, the European Community and the European Convention on Human Rights, 1981 Y.B. Eur. L. 167, 177.

⁵¹ See Lester, supra note 3.

⁵² Henkin, Rights, supra note 2, at 421.

⁵³ Greenberg, The Widening Circles of Freedom, Hum. Rts., No. 3, Fall 1979, at 10, 45.

⁵⁴ Christenson, supra note 48, at 35.

⁵⁵ See supra text accompanying note 47.

⁵⁶ 478 U.S. 186 (1986).

⁵⁷ 45 Eur. Ct. H.R. (ser. A), reprinted in 4 Eur. Hum. Rts. Rep. 149 (1982).

⁵⁸ Lester, supra note 3, at 560.

⁵⁹ Id. (footnotes omitted).

⁶⁰ Michael, Homosexuals and Privacy, 138 New L.J. 831 (1988).

⁶¹ Lester, supra note 3, at 560.

⁶² Michael, supra note 60, at 831:

If one lesson from Hardwick is that the Supreme Court is changing again, another might be that comparative law could be of assistance there (despite the attitude expressed by one attorney as “we already have 51 jurisdictions to compare, and that’s enough”). With US law being argued to Strasbourg institutions, and the House of Lords referring to both US and Strasbourg law, perhaps it is now the Americans who have assumed the attitude once ascribed by Sir James Fawcett QC to the British: when told how things are done in another country they simply say “How funny.”

Compare the remarks of Justice Scalia, supra note 47, with the approach taken by Justice Gubbay in State v. Ncube, supra text at notes 10–16. See also Kirby, The Role of the Judge in Advancing Human Rights by Reference to International Human Rights Norms, 62 Austl. L.J. 514 (1988).

⁶³ Lester, supra note 3, at 560–61.