Primer intercambio sobre Derecho internacional y comparado en las vistas de la juez Sotomayor

Primer intercambio sobre Derecho internacional y comparado en las vistas de la juez Sotomayor

Ayer, en un intercambio con el senador Charles Schumer (D-NY), la juez Sotomayor hizo sus primeras expresiones sobre el rol del Derecho internacional y comprado en el proceso adjudicativo en los tribunales estadounidenses. A mi juicio, sus comentarios fueron muy ambiguos. Por un lado expresó que, salvo en limitadas ocasiones, el uso de fuentes jurídicas foráneas e internacionales no está permitido en los tribunales de EEUU. Por otro lado señala que los jueces pueden emplear estas fuentes de la misma manera que utilizan la literatura de las publicaciones académicas—es decir, que sí está permitido su uso como fuente persuasiva.

Aquí la porción de las vistas en la que la Juez tocó en tema. Evalúen ustedes.

SCHUMER: … Let's go on here a little bit to foreign law, which is an issue that has also been discussed. Your critics have tried to imply that you'll improperly consider foreign law and sources in cases before you. You gave a speech in April that's been selectively quoted. Discussing whether it's permissible to use foreign law or international law to decide cases, you stated clearly that, quote, "American analytic principles do not permit us" -- that's your quote -- "to do so."

Just so the record is 100 percent clear, what do you believe is the appropriate role of any foreign law in the U.S. courts?

SOTOMAYOR: American law does not permit the use of foreign law or international law to interpret the Constitution. That's a given. And my speech explained that, as you noted, explicitly. There is no debate on that question; there's no issue about that question.

The question is a different one because there are situations in which American law tells you to look at international or foreign law. And my speech was talking to the audience about that. And, in fact, I pointed out that there are some situations in which courts are commanded by American law to look at what others are doing.

So, for example, if the U.S. is a party to a treaty and there's a question of what the treaty means, then courts routinely look at how other courts of parties who are signatures are interpreting that.

SOTOMAYOR: There are some U.S. laws that say you have to look at foreign law to determine the issue. So, for example, if two parties have signed a contract in another country that's going to be done in that other country, then American law would say, you may have to look at that foreign law to determine the contract issue.

The question of use of foreign law then is different than considering the ideas that it may on an academic level, provide. Judges -- and I -- I'm not using my words. I'm using Justice Ginsberg's words. You build up your story of knowledge as a person, as a judge, as a human being with everything you read.

For judges, that includes law review articles. And there are some judges who have opined negatively about that. OK?

You use decisions from other courts. You build up your story of knowledge. It is important in the speech I gave, a noted and agreed with Justices Scalia and Thomas that one has to think about this situation very carefully because there are so much differences in foreign law from American law.

But that was the setting up my speech and the discussion that my speech was addressing.

SCHUMER: Right. And you've never relied on a foreign court to interpret U.S. law nor would you?

SOTOMAYOR: In fact, I know that, in my 17 years on the bench, other than applying it in treaty interpretation or conflicts of law situations, that I've not cited foreign law.

SCHUMER: Right. And it is important American judges consider many nonbinding sources when reaching a determination. For instance, consider Justice Scalia's well-known regard for dictionary definitions in determining the meaning of words or phrasing or statutes being interpreted by a court.

In one case, MCI vs. AT&T, that's a pretty famous case, Justice Scalia cited not one but five different dictionaries to establish the meaning of the word "modify" in a statute. Would you agree that dictionaries are not binding on American judges?

SOTOMAYOR: They're a tool to help up in some situations to interpret what is meant by the words that Congress or a legislature uses.

SCHUMER: Right. Right. So it was not improper for Justice Scalia to consider dictionary definitions, but they're not binding. Same as citing a foreign law as long as you don't make it binding on the case?

SOTOMAYOR: Yes. Well, foreign law, except in the situation...

SCHUMER: Of treaties.

SOTOMAYOR: And even then is not binding. It's American principles of construction that are binding.