American, Australian High Court Justices on Role of International Law

American Ambassador to Australia Jeffrey L. Bleich recently joined Supreme Court Justice Antonin Scalia at the International Law Exchange conference (ILEX) where they discussed the use of international law by federal courts.

From the Blog for the U.S. Mission to Australia, Bleich writes:

Justice Scalia and former Australian High Court Justice Michael Kirby had a lively debate in the morning about whether U.S. courts should consider court decisions from other nations in deciding issues of U.S. constitutional law. Justice Scalia, as he has done many times before, condemned it as a bad idea. Justice Kirby pointed out the benefits of looking to other countries and how Australia often looked to U.S. precedents. Then they both commiserated that they should be sitting on each other's court (since both are usually the dissenters in their home courts).

In my remarks, I emphasized that the United States has - since its inception - looked to international law to help decide matters of constitutional law. Some of the reasons are purely practical. But others go to America's belief that there are certain inalienable rights that belong to every person from birth, and that no government may take those rights away.

For that reason, the United States invests billions of dollars every year to secure the rights of all people to be free from political persecution, slavery, genocide and other wrongs, and to keep our common seas, skies, and cyberspace free from piracy. As I pointed out though, determining these principles can be difficult. It takes more than words on paper to guide judges on which elements of another nation's decisions are relevant and which aren't. That is why events like the ILEX program are important. They allow lawyers and judges to learn how different systems operate, what tensions may exist among these systems, and to gain insights about the lawyers and judges in these systems.