Using International and Foreign Human Rights Law in Public Interest Advocacy

Abstract

The theme of this speech is that legal services and legal aid are part of a movement that has both depth and breadth. The depth is historical legal services grew out of twentieth century anti-poverty and civil rights advocacy (which was called human rights advocacy) and nineteenth century anti-slavery and women’s rights campaigns; all of this is part of the great movement for human rights. The breadth incorporates the modern spectrum of human rights protections for people of color; women; children; language minorities; people with disabilities; people who are gay, lesbian, bisexual, or transgendered; people who are poor; immigrants; refugees; displaces. The breadth is not only national, but international; indeed, universal. Since the middle of the twentieth century, this doctrine of human rights has been codified in international documents. Additionally, human rights have been codified in other countries constitutions including South Africa. Therefore, international and foreign human rights law protects civil, political, economic, social, and cultural rights. Importantly, the prohibitions of discrimination are broader than those expressed in domestic United States law. I urge that in all our work, we should be using the standards of international and foreign human rights law. I believe we should be doing this in all forums in federal and state courts, in Congress, in state legislatures and city councils, in the media, and in every venue in which we contribute to public education giving speeches, writing letters to the editor and op-ed pieces, participating in blogs, and talking to our families and friends. As legal services/legal aid lawyers, it is part of our job to know what courts are holding and what they are entertaining as bases for decisions. However, it is also crucial to know what courts should be holding, and what they should be entertaining as a bases for a decision. Moreover, that means that we should, persistently, present to state and federal courts the standards established in international law so that the U.S. may be able to catch up the rest of the civilized world. The use of foreign law has previously been done in Supreme Court cases and Justice Breyer has even urged lawyers to present such arguments—not only in court, but in other forums. An illuminating instance of the non-litigation use of international human rights occurred in connection with Shelley v. Kraemer and Hurd v. Hodge. Therefore, international human rights law may be particularly useful in two respects: its protections against discrimination (which are more expansive than are those in domestic U.S. law) and its protection of economic, social, and cultural rights. I am not breaking new ground in urging that we use foreign and international law in our domestic arguments in and out of court. Legal aid lawyers have been raising international human rights claims for decades. Further, many believe these efforts will be successful. We as lawyers have great skills of advocacy and persuasion and the ability to compel others to pay attention to us. We, as advocates for poor and oppressed people, have the power to advance the recognition and protection of fundamental human rights in the United States. We have that power, and we also have that duty.