New challenges for the American lawyer in international human rights

Washington and Lee Law Review, Summer 1998 by Karamanian, Susan L

Susan L. Karamanian`

L Introduction Every licensed lawyer in the United States takes an oath to support or uphold the Constitution ofthe United States and to support or uphold the laws of the respective state in which he or she is licensed. Every lawyer licensed to practice in a federal court in the United States similarly swears to uphold the laws of the United States Constitution. No explicit reference is made to the obligation of a lawyer to support or uphold international law, let alone the law of international human rights.

For many practitioners and courts alike, international norms on human rights are irrelevant, for "it is American conceptions of decency that are dispositive."' Domestic lawyers, however, more often are invoking the law of international human rights in an effort to expand the protection afforded their clients' civil, criminal, social, political, and economic rights. At times, they succeed. Indeed, courts have entered substantial monetary judgments based on violations of the law of nations2 or based on violations of federal statutes that implicate international human rights principles.3 Despite the apparent interest of some judges4 and the deliberate efforts of international human rights lawyers, acceptance of the Supreme Court's pronouncement in The Paquete Habana that "[i]nternational law is part of our law"6 still is not widespread. Further, even though certain domestic courts' application of international law and comparative constitutional law norms "is a step forward," little assurance can be had that these courts ' decisions comport with the decisions of other tribunals, particularly those that focus on human rights, such as United Nations treaty bodies or regional human rights treaty bodies, and vice versa.' The likelihood of inconsistency is magnified given that, at any moment, numerous United States courts may be reviewing cases that involve what even legal scholars admit is an evolving concept.8 Within this fragile environment works a unique group of professionals, the lawyers. As the gatekeepers of justice,9 lawyers play an essential role. Lawyers, with specialized training and skills, have a license that enables them to appear in court to protect and promote rights. The rights at issue here are those that each individual has against the state because of his or her status as a human being. They are human rights. These rights have become of paramount importance during this century, in large part due to the deliberate efforts of lawyers, namely, international law professors, attorneys for various international human rights groups, and interested private practitioners. One international lawyer poignantly summarized the role of these lawyers: "It is somewhat paradoxical that the once-impregnable walls of the sovereign State, so carefully constructed by the jurists ofthe nineteenth century, are now being dismantled by the innovative and ingenious techniques of the jurists of the twentieth century."'o This paper discusses the future role of the lawyer in international human rights. Its framework is based on Professor Anthony Kronman's observation in The Lost Lawyer: Failing Ideals of the Legal Profession that the lawyer must be more than a professional who has the "legal know-how."" The lawyer in international human rights plays a highly public function. First and foremost, the lawyer must be devoted to the public good as defined by existing or emerging universally-accepted international norms. 12 To paraphrase Professor Henkin, we lawyers must accept international human rights for ourselves."3

This devotion means that the international human rights lawyer must continue to invoke universal norms in assuming the traditional and indispensable role as an advocate on behalf of a specific client in a specific dispute. He or she should, however, do more or at least encourage other lawyers to do more. The lawyer must link international human rights law with the public good and exalt the cause of the public good. The lawyer should educate other lawyers, judges, and lay persons about internationally-accepted norms and urge them to use these norms in guiding these persons in their conduct and decisions. Citizens, clients, and government and nongovernment agencies should look to the international human rights lawyer for guidance and advice on the subject. In addition, the lawyer should work with other lawyers from around the world in documenting human rights abuses and monitoring enforcement in domestic and regional tribunals and in insisting that his own federal government submit to international scrutiny.

In sum, the lawyer should be "a public-spirited reformer who monitors [the] framework [of public norms] itself and leads others in campaigning for those repairs that are required to keep it responsive and fair.""4 Absent a broad-based, activist approach, domestic efforts to enforce universally-recognized rights will continue to suffer from an apparent "crisis of legitimacy."'5 II. The American Lawyer in International Human Rights: A Brief Overview Lawyers who promote or defend international human rights already serve a public good, one that is defined on behalf of individuals and in terms of internationally-accepted norms. While the public good aspect may be selfevident, a brief review should reaffirm and provide a theoretical basis for this conclusion.