Where is international law?

I would like to thank Rob for his important posting on the Ninth Circuit decision in Fields v. Palmdale School District. Judge Reinhardt does not mention international law as a source of support for the position of the parents. I find that interesting since that was a principal justification for Lawrence overturning Bowers. I hasten to add that in another forum (the Villanova John Courtney Murray Symposium), I questioned whether there was international law to rely on in Lawrence. International law was also a source of support for the juvenile death penalty case in Simmons. In neither of those cases was the United States a party to the fundamental principles on which the majorities relied. But for those majorities, that did not seem to matter. Justice Scalia, in blunt words, indicated in his Simmons dissent that to invoke "alien law" when it agrees with one's own thinking and ignore it otherwise is "not reasoned decision-making but sophistry."  Following Justice Scalia's argument, can one argue that there might be a problem with the Fields case? 

The Ninth Circuit decision in Fields does not refer to the Universal Declaration of Human Rights which is arguably customary international law to which the Court could have deferred. Article 26.3 appears to support the contention of the parents about their rights which were downplayed by the Ninth Circuit. But we don't have to argue about the role of the Universal Declaration. There is another component of international law that clearly does apply to the case. The United States is a party to the International Covenant on Civil and Political Rights. Article 18.4 addresses the issue at stake in this case. It would seem, then, that the Ninth Circuit failed to follow applicable international law that is dispositive of the case. Consequently, the concern raised by Justice Scalia in Simmons is boosted to another level. Here international law should apply since the law of the United States, through its being a party to an international instrument, states that the parents do have the right that was denied to them by the Ninth Circuit. However, that law was not relied upon by the Ninth Circuit. It appears that some courts call something international law and use it when they have questionable grounds for doing so. However, when they should apply international law but do not, the problem is intensified. Perhaps Justice Scalia is on to something.   RJA sj