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46 UNIVERSITY OF TilE DISTRICr OF COLUMBIA LAW REVIEWfranchised residents of the District. This innovative legal challenge draws oncustomary international law, as more fully informed by the recent findings andrecommendations made by international panels of human rights experts on thequestion of D.C. voting rights, and the First and Ninth Amendments. In order tovindicate these rights, in the proper jurisdiction and by identifying the appropriatedefendants in a cause of action, such a complaint would be filed in an originalaction before the u.s. Supreme Court. SIt would name as defendant, not the u.s. Congress or the Commerce Secretary,but the State Legislatures, Governors, and Attorneys General of the SeveralStates, because the District's continuing lack of voting rights are fairly traceableto these would-be defendants. Moreover, they enjoy the constitutional authorityunder Article 5 to convene state conventions for the purpose of proposing a constitutionalamendment to fully remedy the anomalous disenfranchisement of approximately600,000 American citizens, who bear all of the responsibilities ofcitizenship, but do not enjoy one of the world's most fundamental rights: the rightto equal representation in the national legislature of their country through dulyelected representatives.Part III will look at the use of foreign jurisprudence and international law inu.S. Supreme Court cases and the standards for invoking it, as well as provide abrief overview of where Associate Justices stand on the application of intern ationallaw and foreign law in U.S. cases. The application of foreign jurisprudencein U.S. cases may signify their positions in any new legal challenge to win equalrights for the citizens of the District of Columbia in the Court.I. CUSTOMARY LAW IN THE CONTEXT OF VOTING RIGHTSIN THE DISTRICT OF COLUMBIAA. The Application of International Law in Supportof Equal D. C. Voting RightsThe American Law Institute ("ALI") defines "international law" as consisting"of rules and principles of general application dealing with the conduct of statesand of international organizations and with their relations inter se, as well as withsome of their relations with persons, whether natural or juridical.,,6 It also notesmore generally that international law is law "that applies to states and interna-5 U.S. CONST.art. III, § 2 (provides for Supreme Court original jurisdiction in controversies betweenthe Several States). See also United States v. Texas, 143 U.S. 621 (1892); California v. S. Pac.Co., 157 U.S. 229 (1895); 22 MOORE'S FEDERAL PRAcnCE §§ 400-499 (3d. ed. 2010) (suits between astate and citizens of another state are also specifically consigned to the Court's original jurisdiction).6 See RESTATEMENT (TIIIRD) OF TilE FOREIGN REI.ATIONS LAW OF TilE UNITED STATES § 101(1987).
THE DISTRICf OF COLUMBIA v. THE 50 STATES 47tional (intergovernmental) organizations," and that is "contained in widely acceptedmultilateral agreements."?Article 38(1) of the Statute of International Court of Justice has establishedfour main "sources" of international law as auxiliary ways to discern rules of law,including "international conventions, international customs, as evidenced by ageneral practice accepted as law, general principles of law recognized by civilizednations, and judicial decisions and the teachings of the most highly qualified publicistsof the various nations. ,,8 These so-called "sources" of international law areconsidered authoritative by the ALI, and are recognized as such in itsRestatement.The Restatement also recognizes its binding nature, defining international lawas rules of law "applicable to a state or international organization that cannot bemodified unilaterally by it.,,9 Moreover, the U.S. Supreme Court, in The PaqueteHabana, recognized binding international law. to Thus, if evidence can be producedin U.S. Courts proving that the continuing denial of equal congressionalvoting rights to the District of Columbia on general terms of equality violatesinternational law, as federal common law, together with rights made available tothem under the Bill of Rights, U.S. Courts may consider themselves bound torender a declaratory judgment in favor of the District's right to elect voting representativesto Congress.Accordingly, this contribution asks whether the right to vote in the nationallegislature of one's own country through duly elected representatives is a rightsecured to the citizens of the District of Columbia under international law, and ifso, does international law compel U.S. courts to recognize that right?B. Customary International Law as General and Consistent State PracticeThe Restatement defines one source of international law as a rule of law acceptedby the community of nations in the "form of customary law." It interpretscustomary international law ("CIL") as following from "a general and consistentpractice of states drawn from a sense of legal obligation" -opinio juris sivenecessitatis .Consequently, any new legal challenge on behalf of equal D.C. voting rightsbased on customary international law will, of necessity, require that the Districtprove that there is in existence today a global state practice, both general andconsistent, and followed from a sense of legal obligation, which provides the citizensliving in the world's capital cities the right to representation in the national7 /d. emt. d.8 Acts and Documents No.6: Charter of the United Nations, the Statute and Rules of Courtand Practice Directions, available at http://www.icj-cij.orgldocuments/index.php?pl=4&p2=2&p3=0.9 RESTATEMENT (Tllllm) OF TilE FOREIGN RELATIONS LAW § 101 reporters note 1.10 The Paquete Habana, 175 U.S. 677 (1900).
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