Taking international human rights seriously?:- The decision of 'Serra v Lappin' from the US Court of Appeals for the Ninth Circuit

On 9 April 2010 the United States Court of Appeals for the Ninth Circuit issued its decision in the case of 'Serra v Lappin'. The Court of Appeals held that inmates in federal prisons that were paid very low wages for labour they were carrying out as prisoners could neither claim a violation of their constitutional rights nor a violation of their rights under international law. While the outcome of the case might be right in light of legal doctrine, its reasoning with regard to the effect of international law within the US legal order raises serious doubts. This is regrettable not only because the Court could have easily dismissed the case without making broad statements about the relationship of international law and municipal law. It is especially regrettable because judicial decisions that comment on the domestic status of international law have the potential for significantly influencing the development of the law in this field that is not fully determined by codified law. The US Constitution regulates the incorporation of international law only in part. Article VI deems international treaties to be part of 'the supreme Law of the Land'. Nevertheless, the relationship between international treaties and domestic statutes is debated. With regard to customary international law and general principles of international law the Constitution is tacit. It also contains no explicit statement as to the effect of decisions of international courts and tribunals within domestic law. At the same time, questions of international law play an increasingly significant role in proceedings before domestic courts. Moreover, the question of the relationship between international and national law does not only arise under the US Constitution but poses similar challenges for judges on domestic courts all around the world.With the rising importance of comparative constitutional law and the establishment of networks of judges exchanging their views on fundamental questions of law, decisions of domestic courts not only influence developments within their own legal order but may also have significance beyond the borders of the nation state. Against this background the Court of Appeals' decision may have significant repercussions for the development of international human rights law and policy.