Phase I Interpretation – Carving the Rosetta Stone
Recognizing the Legal Language Barrier
The rights afforded detainees under international human rights law and U.S. constitutional law often appear virtually indistinguishable. The protections are often the same, the rationales are often the same, and our respect for their virtue is often the same; however the legal status of these seemingly identical rights could not be more different. When contained in the U.S. Constitution, these rights are inviolable, viewed as sacrosanct by those in our government, and rendered functionally unassailable by all those who might seek to circumvent them. When contained in human rights treaties, these rights are viewed as merely suggestions, held to be non-self-executing, and rarely implemented in our courts. While various legal justifications exist for these distinctions, one explanation for the reason we as American lawyers feel so differently about these rights may lie in the language used to express them.
Law exists through language. The specific language of the law carries tremendous practical significance, therefore in law school we teach that in order to master the law, a person must first master the legal lexicon and then apply it with extreme precision. This linguistic sensibility is a fundamental and universal aspect of the human experience for lawyers worldwide, and explains why there are few true synonyms in the law.
Many detainee rights are protected under international law just as they are protected under the U.S. Constitution; one key difference, however, is that under U.S. constitutional law these rights are protected under the language of "due process." The term "due process" is unique to common law legal systems and is therefore not found in most relevant international human rights instruments. It is not that the rights inherent in what we know as "due process" are not protected under international law; it is just that these protections have been expressed in different language. While certainly not determinative, these linguistic differences do impede direct integration in common law legal systems where the words may not be readily recognized as sacrosanct legal terminology by domestic jurists. In order to facilitate transnational norm-internalization of international human rights law into the domestic legal system of the United States, the Lexington Principles would first need to translate these norms into the common law lingua franca of due process.
The process of norm redefinition is arduous and uncertain. To facilitate this process we first focused on areas of commonality between the international and domestic legal systems. There is considerable overlap in the standard protections afforded to detainees under both the human rights and due process frameworks, which demonstrates the truly universal nature of these obligations. After considerable review, we distilled this mutuality down to a single fundamental principle: the right to physical liberty.
The linchpin of the Lexington Principles approach is our conclusion that there is a fundamental human right to physical liberty guaranteed under both the U.S. Constitution and international law, and this right is protected by the guarantee that no deprivations will occur without due process of law. Principle 1 first establishes this central right, and then all other rights are drafted as essentially derivative. This was done in order to anchor all of the rights contained in the Lexington Principles to a central right indisputably afforded under both legal systems.
Carving the Rosetta Stone
After identifying this common juridical nexus, the drafting of the Lexington Principles consisted of taking all the mutual rights we had identified during the norm interpretation phase and translating them into elements of the fundamental right to physical liberty and due process of law. Once this was complete, we compiled all of the Principles into a conceptual framework that is comfortably familiar to the common law world. This framework breaks down all rights into three general categories:
I. General Provisions
II. Procedural Due Process
III. Substantive Due Process
The result of this lengthy effort is the Lexington Principles on the Rights of Detainees: a body of international due process principles intended to provide the linguistic bridge necessary to foster transnational norm internalization of international human rights law by lawyers and jurists in common law countries who have been conditioned to attach special significance to rights couched in "due process" terminology.
*The Lexington Principles Project is an independent international project on the rights of detainees hosted and supported by the School of Law and Washington and Lee University Institute for Honor. Its members hail from many different disciplines and institutions.