sodomy and international law

[Mortimer Sellers]

I should probably reiterate the universal view of international lawyers, which is that the holdings of international tribunals should be taken as (at best) "a subsidiary means" for the determination of a general practice accepted as law.

United States constitutional lawyers are easily misled on this point, because of the very different common-law practices of stare decisis and judicial review, as applied by the United States Supreme Court.

Attributing a greater authority to such groups as the UNHRC tends to discredit international law, at a time when we should be striving to support it.

         Tim Sellers

-----Original Message-----
From: Francisco Martin [mailto:ricenter at igc.org]
Sent: Wednesday, February 25, 2004 5:05 PM
To: conlawprof at lists.ucla.edu
Subject: RE: sodomy and international law



Prof. Sellers wrote in relevant part: " Customary international law arises
from state practice, coupled with opinio iuris.  There is not as yet any
international consensus about "sodomy" as a practice protected (or
discouraged) by law."

COMMENT:  I earlier cited several cases from both global (UNHRC) and
regional (ECtHR) tribunals interpreting widely adopted multilateral
treaties that are probably the best evidence of customary international law
protecting same-gender sexual behavior.

Prof. Sellers continues: "Defenders of sodomy may wish to make an argument,
as some of the framers might have, from natural law, but citations to
European (or any other) cases are not persuasive evidence of international
custom.  At best they are a subsidiary means for the determination of rules
of law."

COMMENT:  The Framers cited "natural law" because the law of nations was
considered natural law.  Hence Vattel (who was cited more than Locke or
Montesquieu by the Framers and Founders) called his work "The Law of
Nations or Principles of the Law of Nature Applied to the Conduct and
Affairs of Nations and Sovereign" (1758).  Cases from international
tribunals ARE persuasive evidence of customary international law -- not
merely state practice or what you call "international custom."  Take a look
at any ICJ case discussing customary international law.  Also, the ICJ  in
the Nicaragua Case established that opinio juris -- not state practice --
should be emphasized for determining customary international law. 

Francisco Forrest Martin


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