This Q&A with Professor De La Vega was first published in the Fall 2016 issues of the California International Law Journal.
This year’s recipient of the Warren M. Christopher International Lawyer of the Year award is Professor Connie de la Vega of the University of San Francisco School of Law. Professor de la Vega writes extensively on international human rights law and participates in United Nations human rights meetings. She has submitted amicus briefs detailing international law standards to U.S. courts for juvenile death penalty and affirmative action cases, including Roper v. Simmons and Graham and Sullivan v. Florida, and has been cited by the U.S. Supreme Court. Professor de la Vega is the author of the Dictionary of International Human Rights Law, and is the co–author of The American Legal System for Foreign Lawyers and International Human Rights Law: An Introduction. She established the Frank C. Newman International Human Rights Law Clinic at USF and is a founding member of Human Rights Advocates.
Q: Professor de la Vega, thank you so much for meeting with us today. Can you tell us about the early part of your career and how you came to be involved in international human rights law?
A: Well the first ten years of my career were spent working at the Legal Aid Society of Alameda County in Oakland. But my interest in international human rights actually started earlier, after I began law school, when I took Professor Frank Newman’s class on international human rights law. He was very enthusiastic and I spent one semester in Geneva, Switzerland as part of my semester abroad for law school at the International Commission of Jurists, and this was part of the result of his really trying to get students to be aware of the international bodies that dealt with human rights issues. So as a result of that, and while I was working for Legal Aid, I would occasionally bring up the international law in my cases. It left the judges in total awe – “What are you talking about?” I would try to bring in international law whenever I could. I must say that in Legal Aid cases it didn’t really matter. I mean the judges just ignored it basically.
Q: So how did you then, pivot form your work at Legal Aid to the next chapter?
A: So after ten years, I thought, “Well, you know, I’ve got to do something different.” I decided it was time for a change. So I thought that maybe I wanted to go into teaching. Stanford had a clinic program at the East Palo Alto Community Law Project, so I went down there to teach and supervise domestic violence cases and public benefits cases. And then the 1989 Loma Prieta earthquake hit, which made my commute twenty times longer than it already was from Oakland. So I saw a job opening at USF and I applied to teach here and came to direct a civil litigation clinic. And then after about five years a few students found out that I knew about international human rights law and they started asking if we could do something on that. They started pushing for advocating both in Geneva, as well as raising issues in courts in the United States. So we started working on issues in Geneva and then also the death penalty case for juveniles that started with a student that was interested in that.
Q: Tell us a little bit about your work now. What types of things you’re engaged in, both at USF and outside of the school?
A: At USF I now run the International Human Rights Law Clinic, I teach a human rights class, and I also teach foreign students in the Master of Law program their introductory class to the U.S. legal system. On some levels that’s not international law, but it’s teaching other students about our law which for me then means I get to learn about their laws, so I really like doing that because I’ve learned a lot about other countries’ laws as a result of teaching that class.
As far as the human right’s clinic goes students work at the Commission of the Status of Women in New York and the Human Rights Council in Geneva, Switzerland on various topics. For a long time we did a lot of violence against women type of interventions to try to get language into resolutions that we can then use to promote human rights here even though we don’t just focus on the U.S. We’ve also worked on the juvenile sentencing issues, and we’ve worked on right to food issues and right to housing. Some of it has got to do with what the agenda is for the Council, but we’ll pick a topic and usually try to build on an issue that we’ve worked on before because it’s really hard to try to start something new on a particular issue every year. Like the right to vote. There’s no language in any of the resolutions of the Human Rights Council on the right to vote – which we can imagine why. Being a very political issue, other countries don’t want to adopt resolutions on the right to vote. But we tried to do something about that issue, though eventually had to give up. But we’ve been successful on other things, bringing attention to particular topics that affect not only our country and other countries, but usually with the goal of trying to bring something back here that can be used here.
Q: You also have authored a number of amicus briefs over the years. On what types of case have you submitted amicus briefs?
A: I’ve worked on matters like the death penalty for juveniles – that was the first one, and we filed briefs in various states on that issue. And I’ve worked on the issue of juvenile life without parole issues here in California but also in various states. I filed a brief in Connecticut – the death penalty was abolished in that state but they weren’t going to make it retroactive for the nine people that were already on death row, so we filed a brief on the international law standard that says if you adopt an ameliorative law you should make it retroactive, and fortunately the Connecticut Supreme Court made that decision and one of the judges cited to our international standards.
I’ve done a lot of work on affirmative action-type cases. Mostly because of the way the Constitution has been interpreted it’s not allowing states to use affirmative action to help remedy discrimination. The international law actually mandates it (they call it special measures) to try to deal with discrimination that’s existing. I brought that up in various cases before the Supreme Court including the most recent case the Fisher case. And so those are most of the cases I’ve worked on.
Q: Why should U.S. courts consider international laws and standards when interpreting domestic laws?
A: The first reason is that the U.S. is a party to treaties that, under the Constitution, are the supreme law of the land. Since we started ratifying human rights treaties the Senate started putting some restrictions on whether they can be used affirmatively as a private cause of action. But still, even with those limitations, we are party to those treaties and we are obligated to comply with those treaties. So one of the reasons the courts should look at them, as far as interpreting our laws, is that the U.S. has obligations under those treaties. There’s also customary international law, which the U.S. Supreme Court has said is also part of our law, and if a norm has reached a level of custom one would hope that we would use it to make sure that our laws are interpreted in a way that is in compliance with the rest of the world. Finally, by looking at international law, courts come to know how out of touch how out of touch we sometimes are with the practices of other countries. For example, it’s sort of shocking to be the only country in the world sentencing juveniles to life without parole.
Q: Over the years have you seen any change in the receptivity of U.S. courts to considering international laws and standards?
A: Yes. I would say that when I first started raising this in courts they were not very receptive, especially at the local municipal court level. But slowly with some of these bigger issues – like the juvenile death penalty and the juvenile life without parole, and a little bit with the affirmative action issue – the Supreme Court became more receptive to using international law as a way to interpret our own laws. Unfortunately, what happened after that was there was a backlash against judges using international law. I don’t want to say what factors in society pushed it that way, but as a result I think there has been more reluctance at the U.S. Supreme Court level to cite international law, even though Justice Breyer just wrote a book about why it’s relevant to our jurisprudence. Some of the state supreme courts are somewhat receptive, and some are not. As I said, in the Connecticut Supreme Court case, some of the judges cited to international laws as to why the abolition law in Connecticut should be made retroactive. There have been other courts where they don’t look at all at any of the international law that both parties raise.
Q: What about the California Supreme Court?
A: I would say that they’ve been reluctant. I think in part because we have an elected Supreme Court and I think that they’re worried about what might happen during their elections – this happened to Justice Newman when he raised international law as an interpretive guide. He never said we have to do this, he would just raise a particular issue and say it would be helpful to interpret our law with respect to this standard. I sort of see these elections making it harder for California judges to stick their necks out to consider international law and they haven’t really when I’ve raised it in amicus briefs.
Q: You mentioned the Fisher v. University of Texas case, in which you submitted an amicus brief to the Supreme Court. In its decision the Court upheld the University of Texas’s use of race as one factor in the University’s admissions decision. You’ve commented that Fisher helps promote U.S. treaty obligations. How so?
A: We’re party to a treaty called the International Convention on the Elimination of All Forms of Racial Discrimination. One of the articles in that treaty says that states should take special measures to ensure that they promote the rights of equality and deal with any racial discrimination. That’s in the treaty and the U.S. did not take a reservation to that particular article and so we’re obligated to abide by that provision. The treaty provides that the judges of each state shall be bound to do something that helps to implement that particular treaty. By upholding the University’s program, the Supreme Court’s decision is in compliance with the U.S.’s treaty obligation.
Q: On the presidential campaign trail there’s been a lot of talk by the candidates about reforming the criminal justice system. You’re a proponent of using international human rights standards to effect criminal justice reform. In what ways do you envision international standards and treaties being used to reform the U.S. criminal justice system?
A: The clearest one, which has already been taken care of, is the juvenile death penalty, which the Supreme Court finally abolished. We were totally out of whack with that particular practice. Actually, the U.S. is more out of whack with juvenile life without parole sentences. There were 6 or 7 countries using the juvenile death penalty whereas there were no countries putting kids in jail for the rest of their lives for crimes they committed when they were under 18. So clearly that’s one of the topics that I think is important to consider international standards.
Q: You recently published an ABA article that canvased how international treaties and standards can be used to affect change to the U.S. criminal justice system. It’s a fascinating perspective. Can you summarize your views?
A: The U.S. is a party to the International Covenant on Civil and Political rights, and that treaty says that the whole aim of criminal justice to should be to try to rehabilitate people in general, not just juveniles. So I think that that should play a role if we’re going to change our criminal justice system to move more toward rehabilitation instead of punishment. There is money to be made by putting people in jail and it would be nice if that was not the goal of why we’re incarcerating a lot of people. California has the highest per capita incarceration in the world. Not just in the United States, in the world. That’s terrible. Why are we doing that? We’re doing that because there’s a business there – that’s why we’re doing that.
Q: You’ve worked on a lot of cases, you’ve submitted a lot of amicus briefs and you’ve contributed on cases in other ways is there any one that stands out as the case that you’re most proud of your contribution on?
A: Probably the issue that we’ve been most successful on is the issue of not having juveniles being given death sentences. When my student first brought that to me and said “Why are we doing this?” we started filing briefs with the Nevada Supreme Court and it went to all different courts. And we finally filed an amicus brief with the U.S. Supreme Court. Initially, I thought for sure that by the end of my lifetime that we would end the juvenile death penalty. But it only took us 10 years. It wasn’t just me, it was a lot of effort but I started working on it and ten years later the Supreme Court ruled that it was unconstitutional. So that was a nice thing to have happen. It has been a little harder with the juvenile life without parole sentences, but I see a lot of changes being in various cases since the Miller decision came down. And now legislation in California is making it possible for juveniles to change their sentences, so I’m also glad to see that particular change. I’ve been glad to see some of the changes involving affirmative action which are actually based on a different perspective – the U.S. Supreme Court looks at it in a way of promoting diversity whereas international law looks at it in a way to promote equality.
Q: When you think about burning legal issues in the area of international human rights, which is the most pressing at the moment?
A: It’s an interesting question because there are some areas where it’s easy to see clear violations, like solitary confinement, or long prison sentences that are way longer than sentences in other countries. But then there are other issues that are harder to put a handle on, like the right to food and the right to health – those are rights that are a part of the International Covenant on Economic, Social and Cultural Rights, which is a treaty that the U.S. is not a party to. President Carter signed it and it hasn’t been ratified yet. That’s one of the things in my lifetime that if the treaty gets ratified it will be sort of an interesting development – to be a party of this treaty that promotes economic and social rights.
We think we’re the most developed country in the world and think “Oh yes, we have all these rights in economic areas,” but it’s actually gotten worse. At least President Obama with his Obamacare has promoted a little better healthcare than we used to have but there’s still a long ways to go in housing. I was just driving in Berkeley the other day and I went under a freeway ramp and I could not believe how many homeless people were living there. It was unbelievable. There are probably issues with the right to food. The right to water is a little bit unclear at the international level, but clearly you can’t have food without water. There’s all these economic, social and cultural rights that I think need to be addressed – and they’re being addressed on some levels, but certainly we’re not looking at the international standards on those particular issues.
Q: What do you like to do in your spare time when you’re not working on your cases?
A: Mostly walking a lot, and I do some swimming. I used to play soccer and volleyball and softball, but they take their toll on you for a while. I also go to baseball games, and last weekend I climbed Mount Wittenberg near Point Reyes.
Q: Professor de la Vega, we’re honored to have you as the 2016 recipient of the Warren M. Christopher International Lawyer of the Year award. Thank you for speaking with us today.
* This interview was conducted by Editor-in-Chief Mark Danis.
