Senin, 27 Desember 2010


Term " law" coming from Arab language of hukmun with the meaning " specifying". In academic world, a more regular legal term befited with term of ius. written down Ius or constitutium is law and regulation (lege, droit, wet). Become, law can be interpreted as norm, both for written and also is unwritten. Law created by state bodys and government named by law and regulation (regel) or regulation of policy (regel policy, policy of regel). While monarchic laws named with Book ofKing. For customary laws which have been written down till now not yet owned special name.

Because of usage of ism or viewpoint / stream think which different each other, hence definition about law even also different each other also. There is four stream think which enough have an effect on in idea of law :

  1. Stream Natural Law or Natural Law, having a notion that prima facie or highest law, which from Positive Law him come. Natural Law come from God comand.
  2. Stream of Positivisme Law, having a notion that prima facie law is law coming or created by human being, namely Positive Law.
  3. Stream History Punish or Historical Law, having a notion that law is rule of the game in assocciation of social which is found in society, its meaning of law represent nation soul/ head.
  4. Stream Sociology Law, having a notion that order punish also come from religion institution and or society institution.

Minggu, 08 Agustus 2010


Country Description
India based on English common law, separate personal law codes apply to Muslims, Christians, and Hindus except in Goa which follows Civil law based on Portuguese civil laws, but criminal penal law is uniform
Malaysia based on English common law, personal law based on sharia law applies to Muslims
Nigeria Sharia is applied in some northern states
Pakistan based on English Common Law, some Islamic Law applications in inheritance. Tribal Law in FATA


Country Description
Egypt Based on Islamic law and French civil law system
Indonesia Based on civil law of Holland and adat (cultural law of Indonesia)
Morocco Based on Islamic law and French and Spanish civil law system
Syria Based on Islamic law and French civil law system
Jordan Mainly based on French Civil Code and Ottoman Majalla, Islamic law applicable to family law.


Country Description
Botswana South African law (a mixed system) transferred uno acto through a proclamation of reception
Cyprus Based on English common law (Cyprus was a British colony 1878-1960), with admixtures of French and Greek civil and public law, Italian civil law, Indian contract law, Greek Orthodox canon law, Muslim religious law, and Ottoman civil law.
Israel Originally (1948) based on English common law; in the process, influenced by German civil law—for instance, between 1962 and 1981, the Knesset issued twenty (20) wide-ranging laws, which were clearly influenced by civil law, and were in the form of codes. Religious law plays a role, especially in matters of personal status and family law, and judicial and legislative decisions take into account Jewish law (halakhah) on occasion.
Lesotho South African law (a mixed system) transferred uno acto through a proclamation of reception
Based on French and Spanish civil law, but federal laws (based on common law) are in effect in Louisiana as well.
Malta Initially based on Roman Law and eventually progressed to the Code de Rohan, Code Napoleon with influences from Italian Civil Law. English common law however is also a source of Maltese Law, most notably in Public Law
Namibia South African law (a mixed system) transferred uno acto through a proclamation of reception
Philippines Based on Spanish law; influenced by U.S. common law after 1898 Spanish and Philippine-American Wars, personal law based on sharia law applies to Muslims
Puerto Rico
Based on Spanish law; influenced by U.S. common law after 1898 (victory of the U.S. over Spain in the Spanish-American war of 1898 and cession of Puerto Rico to the U.S.)
After the defeat of the French in the battle at the Plains of Abraham, the British allowed them to keep their language (French), their religion (Roman Catholicism), and their legal system (civil law). However, as Quebec is part of the Canadian Confederation, English-based laws applied at the federal level are in effect in Quebec also.
Saint Lucia
Scotland based on Roman and continental law, with common law elements dating back to the High Middle Ages
Seychelles The substantive civil law is based on the French Civil Code. Otherwise the criminal law and court procedure are based on the English common law. See Seychelles Legal Environment.
South Africa An amalgam of English common law and Roman-Dutch civil law as well as Customary Law.
Sri Lanka An amalgam of English common law, Roman-Dutch civil law and Customary Law
Swaziland South African law (a mixed system) transferred uno acto through a proclamation of reception
Thailand The Thai legal system became an amalgam of German, Swiss, French, English, Japanese, Italian, and Indian laws and practices. Even today, Islamic laws and practices exist in four southern provinces. Over the years, Thai law has naturally taken on its own Thai identity].
Zimbabwe South African law (a mixed system) transferred uno acto through a proclamation of reception


Religious law refers to the notion of a religious system or document being used as a legal source, though the methodology used varies. For example, the use of Jewish Halakha for public law has a static and unalterable quality, precluding amendment through legislative acts of government or development through judicial precedent; Christian Canon Law is more similar to civil law in its use of civil codes; and Islamic Sharia law (and Fiqh jurisprudence) is based on legal precedent and reasoning by analogy (Qiyas), and is thus considered similar to common law. The main kinds of religious law are Sharia in Islam, Halakha in Judaism, and canon law in some Christian groups. In some cases these are intended purely as individual moral guidance, whereas in other cases they are intended and may be used as the basis for a country's legal system. The latter was particularly common during the Middle Ages.

The Islamic legal system of Sharia (Islamic law) and Fiqh (Islamic jurisprudence) is the most widely used religious law, and one of the three most common legal systems in the world alongside common law and civil law. It is the most protected divine law, because, the majority of the ruleings of Sharia law is based on the Qur'an and Sunnah, while small fraction of its rulings are based on the Ulema (jurists) who used the methods of Ijma (consensus), Qiyas (analogical deduction), Ijtihad (research) and Urf (common practice) to derive Fatwā (legal opinions). An Ulema was required to qualify for an Ijazah (legal doctorate) at a Madrasah (school) before they could issue Fatwā. During the Islamic Golden Age, classical Islamic law may have had an influence on the development of common law and several civil law institutions. Sharia law governs a number of Islamic countries, including Saudi Arabia and Iran, though most countries use Sharia law only as a supplement to national law. It can relate to all aspects of civil law, including property rights, contracts or public law.

The Halakha is followed by orthodox and conservative Jews in both ecclesiastical and civil relations. No country is fully governed by Halakha, but two Jewish people may decide, because of personal belief, to have a dispute heard by a Jewish court, and be bound by its rulings.

Canon law is not a divine law, properly speaking, because it is not found in revelation. Instead, it is seen as human law inspired by the word of God and applying the demands of that revelation to the actual situation of the church. Canon law regulates the internal ordering of the Roman Catholic Church, the Eastern Orthodox Church and the Anglican Communion. Canon law is amended and adapted by the legislative authority of the church, such as councils of bishops, single bishops for their respective sees, the Pope for the entire Catholic Church, and the British Parliament for the Church of England.

Country Description
Afghanistan Islamic law
Bangladesh formerly based on English common law
The Gambia English common law, Islamic law and customary law
Iran Islamic law
Libya Islamic law
Mauritania mix of Islamic law and French Civil Codes, Islamic law largely applicable to family law.
Morocco mix of Islamic law and French Civil Codes, Islamic law largely applicable to family law.
Nigeria Sharia
Oman Sharia and tribal custom laws
Saudi Arabia Islamic law
Sudan Based on Islamic law
Vatican City Based on principles of Code of Canon Law
Yemen Islamic law

Sabtu, 07 Agustus 2010


Common law and equity are systems of law whose sources are the decisions in cases by judges. Alongside, every system will have a legislature that passes new laws and statutes. The relationships between statutes and judicial decisions can be complex. In some jurisdictions such statutes may overrule judicial decisions or codify the topic covered by several contradictory or ambiguous decisions. In some jurisdictions judicial decisions may decide whether the jurisdiction's constitution allowed a particular statute or statutory provision to be made or what meaning is contained within the statutory provisions. Statutes were allowed to be made by the government. Common law developed in England, influenced by the Norman conquest of England which introduced legal concepts from Norman Law, which in turn was influenced by aspects of Islamic Law. Common law was later inherited by the Commonwealth of Nations, and almost every former colony of the British Empire has adopted it (Malta being an exception). The doctrine of stare decisis or precedent by courts is the major difference to codified civil law systems.

Common law is currently in practice in Ireland, most of the United Kingdom (England and Wales and Northern Ireland), Australia, India (excluding Goa), Pakistan, South Africa, Canada (excluding Quebec), Hong Kong, the United States (excluding Louisiana) and many other places. In addition to these countries, several others have adapted the common law system into a mixed system. For example, Nigeria operates largely on a common law system, but incorporates religious law.

In the European Union the Court of Justice takes an approach mixing civil law (based on the treaties) with an attachment to the importance of case law. One of the most fundamental documents to shape common law is Magna Carta which placed limits on the power of the English Kings. It served as a kind of medieval bill of rights for the aristocracy and the judiciary who developed the law.

Country Description
American Samoa
Antigua and Barbuda based on English common law
Australia based on English common law
Bahamas based on English common law
Barbados based on English common law
Belize based on English common law
British Virgin Islands based on English common law
Canada based on English common law, except in Quebec, where a civil law system based on French law prevails in property and private matters
Dominica based on English common law
England and Wales
primarily common law, with early Roman and some modern continental influences
Fiji based on English common law
Gibraltar based on English common law
Myanmar based on English common law
Grenada based on English common law
Hong Kong principally based on English common law
India based on English common law (except Goa which follows a Civil Law based on Portuguese Civil Law)
Ireland based on Irish law before 1922, which was itself based on English common law
Jamaica based on English common law
Kiribati based on English common law
Marshall Islands based on U.S. Law
Nauru based on English common law
New Zealand based on English common law
Northern Ireland
based on Irish law before 1921, which was itself based on English common law
Palau based on U.S. Law
Pakistan based on English common law with some provisons of Islamic law
Saint Kitts and Nevis based on English common law
Saint Vincent and the Grenadines based on English common law
Singapore based on English common law
Tonga based on English common law
Trinidad and Tobago based on English common law
Tuvalu based on English common law
Uganda based on English common law
United States Federal courts and 49 states use legal system originally based on English common law but which diverged greatly in 19th century with substantial indigenous innovations and borrowing of some civil law practices such as codification;
State law in the U.S. state of Louisiana is based upon French and Spanish civil law (see below)

Jumat, 06 Agustus 2010


Civil law is the most widespread system of law
around the world. It is also sometimes known as Continental European law. The central source of law that is recognized as authoritative are codifications in a constitution or statute passed by legislature, to amend a code. While the concept of codification dates back to the Code of Hammurabi in Babylon ca. 1790 BC, civil law systems mainly derive from the Roman Empire, and more particularly, the Corpus Juris Civilis issued by the Emperor Justinian ca. 529 AD. This was an extensive reform of the law in the Byszantine Empire, bringing it together into codified documents. Civil law was also partly influenced by Religious Laws such as Canon Law and Islamic Law. Civil law today, in theory, is interpreted rather than developed or made by judges. Only legislative enactments (rather than judicial precedent, as in common law) are considered legally binding.

Scholars of Comparative Law and economists promoting the legal origins theory usually subdivide civil law into four distinct groups:

A comprehensive list of countries that base their legal system on a codified civil law follows:

Country Description
Albania The Civil Code of the Republic of Albania, 1991 really
Angola Based on Portuguese civil law
Argentina The Spanish legal tradition had a great influence on the Civil Code of Argentina, basically a work of the Argentine jurist Dalmacio Vélez Sársfield, who dedicated five years of his life on this task. The Civil Code came into effect on January 1, 1871. Beyond the influence of the Spanish legal tradition, the Argentinian Civil Code was also inspired by the Draft of the Brazilian Civil Code, the Draft of the Spanish Civil Code of 1851, the Napoleonic code and the Chilean Civil Code. The sources of this Civil Code also include various theoretical legal works, mainly of the great French jurists of the 19th century. It was the first Civil Law that consciously adopted as its cornerstone the distinction between i. rights from obligations and ii. real property rights, thus distancing itself from the French model.

The Argentinian Civil Code was also in effect in Paraguay, as per a Paraguayan law of 1880, until the new Civil Code went in force in 1987.

During the second half of the 20th century, the German legal theory became increasingly influential in Argentina.

Andorra Courts apply the customary laws of Andorra, supplemented with Roman law and customary Catalan law.
Aruba Based on Dutch civil law
Austria The Allgemeines bürgerliches Gesetzbuch (ABGB) of 1811
Belgium The Napoleonic Code is still in use, although it is heavily modified (especially concerning family law)
Bolivia Influenced by the Napoleonic Code
Bosnia and Herzegovina Influenced by Austrian law. The Swiss civil law (Zivilgesetzbuch) was a model for the Law on Obligations of 1978.
Brazil Derived from the German and Roman civil law
Bulgaria Civil Law system influenced by Germanic and Roman law systems
Burkina Faso
People's Republic of China civil law system; based on native customs and practices with Soviet and German influence
Republic of the Congo
Democratic Republic of the Congo
Cote d'Ivoire
Cape Verde Based on Portuguese civil law
Central African Republic
Chile The Spanish legal tradition exercised an especially great influence on the civil code of Chile. On its turn, the Chilean civil code influenced to a large degree the drafting of the civil codes of other Latin-American states. For instance, the codes of Ecuador (1861) and Colombia (1873) constituted faithful reproductions of the Chilean code, but for very few exceptions. The compiler of the Civil Code of Chile, venezuelan Andrés Bello, worked for its completion for almost 30 years, using elements, of the Spanish law on the one hand, and of other Western laws, especially of the French one, on the other. Indeed, it is noted that he consulted and used all of the codes that had been issued till then, starting from the era of Justinian.

The Civil Code came into effect on January 1, 1857. Its technique is regarded as perfect; it is distinguished for the clarity, logic and cohesiveness of its provisions. As mentioned by Arminjon, Nolde, and Wolff ('Traite de droit comparé', Paris, 1950-1952) Andrés Bello may be regarded as one of the great legislators of mankind. The influence of the Napoleonic code is great; it is observed however that e.g. in many provisions of property law, the solutions of the French code civil were put aside in favor of pure Roman law.

Colombia Civil code introduced in 1873. Nearly faithful reproduction of the Chilean civil code
Costa Rica First Civil Code (a part of the General Code or Carrillo Code) came into effect in 1841; its text was inspired by the South Peruvian Civil Code of Marshal Andres de Santa Cruz. The present Civil Code is into effect since January 1, 1888, and reveals the influenced by the Napoleonic Code and the Spanish Civil Code of 1889 (from its 1851 draft version).
Croatia Influenced by Austrian and Hungarian law. The Law on Obligations of 2005.
Cuba Influenced by Spanish and American law with large elements of Communist legal theory.
Czech Republic Descended from Austro-Hungarian Allgemeines bürgerliches Gesetzbuch, influenced by German (minor influence) and Soviet (major influence) legal codes during occupation periods, substantially reformed after the Velvet Revolution of 1989.
Denmark Scandinavian-German civil law
Dominican Republic Based by the Napoleonic Code
Ecuador Civil code introduced in 1861. Nearly faithful reproduction of the Chilean civil code
El Salvador
Finland civil law system based on Swedish law
France Based on the Napoleonic code (code civil of 1804)
Equatorial Guinea
Guinea based on French civil law system, customary law, and decree
Germany The Bürgerliches Gesetzbuch of 1900 ("BGB"). The BGB is influenced both by Roman and German law traditions.
Greece The Greek civil code of 1946, highly influenced by the German civil code of 1900 (Bürgerliches Gesetzbuch); the Greek civil code replaced the Byzantine-Roman civil law in effect in Greece since its independence (Νομική Διάταξη της Ανατολικής Χέρσου Ελλάδος, Legal Provision of Eastern Mainland Greece, November 1821: 'Οι Κοινωνικοί Νόμοι των Αειμνήστων Χριστιανών Αυτοκρατόρων της Ελλάδος μόνοι ισχύουσι κατά το παρόν εις την Ανατολικήν Χέρσον Ελλάδα', 'The Social [i.e. Civil] Laws of the Dear Departed Christian Emperors of Greece [referring to the Byzantine Emperors] alone are in effect at present in Eastern Mainland Greece')
Guatemala Guatemala has had three Civil Codes: the first one from 1877, a new one introduced in 1933, and the one currently in force, which was passed in 1963. This Civil Code has suffered some reforms throughout the years, as well as a few derogations relating to areas which have subsequently been regulated by newer laws, such as the Code of Commerce and the Law of the National Registry of Persons. In general, it follows the tradition of the roman-French system of civil codification.

Regarding the theory of 'sources of law' in the Guatemalan legal system, the 'Ley del Organismo Judicial' recognizes 'the law' as the main legal source (in the sense of legislative texts), although it also establishes 'jurisprudence' as a complementary source. Although jurisprudence technically refers to judicial decisions in general, in practice it tends to be confused and identified with the concept of 'legal doctrine', which is a qualified series of identical resolutions in similar cases pronounced by higher courts (the Constitutional Court acting as a 'Tribunal de Amparo', and the Supreme Court acting as a 'Tribunal de Casación') whose theses become binding for lower courts.

Haiti Influenced by the Napoleonic Code
Iceland Based on Germanic traditional laws and influenced by Medieval Norwegian and Danish laws.
Italy Based on codified Roman law, with elements of the Napoleonic civil code; civil code of 1942 replaced the original one of 1865
Japan Modeled after European (primarily German) civil law system. Japanese civil code of 1895.
Latvia Largely influenced by Germany, medium influences from Russian and Soviet law.
Lebanon Modeled after French civil law
Lithuania Modeled after Dutch civil law
Luxembourg Influenced by the Napoleonic Code
Macau Based on the Portuguese strand of the continental tradition, itself much influenced by Germany; also influenced by the law of the PRC
Mexico "The origins of Mexico's legal system are both ancient and classical, based on the Greek, Roman and French legal systems, and the Mexican system shares more in common with other legal systems throughout the world (especially those in Latin America and most of continental Europe)..." From: Jaime B. Berger Stender Attorney at Law author, Tijuana, B.C., Mexico
Mongolia Civil Code of 2002 based on German BGB
Montenegro First: the General Property Code for the Principality of Montenegro of 1888, written by Valtazar Bogišić. Present: the Law on Obligations of 2008.
Netherlands Influenced by the Napoleonic Code
Norway Scandinavian-German civil law. King Magnus VI the Lawmender unified the regional laws into a single code of law for the whole kingdom in 1274. This was replaced by Christian V's Norwegian Code of 1687.
Paraguay The Paraguayan Civil Code in force since 1987 is largely influenced by the Napoleonic Code and the Argentinian Code
Peru Based on civil law system; accepts compulsory ICJ jurisdiction with reservations
Poland The Polish Civil Code in force since 1965
Portugal Influenced by the Napoleonic Code and later by the German Civil Law
Republic of China (Taiwan) Codification derived from German BGB.
Romania Based on the Napoleonic Code
Russia Civil Law system descendant from Roman Law through Byzantine tradition. Heavily influenced by German and Dutch norms in 1700-1800's. Socialist-style modification in 1900's, and Continental European Law influences since 1990's.
São Tomé e Príncipe Based on Portuguese civil law
Serbia First: the Civil Code of Principality of Serbia of 1844, written by Jovan Hadžić, was influenced by the Austrian Civil Code (Allgemeines bürgerliches Gesetzbuch). Present: The Swiss civil law (Zivilgesetzbuch) was a model for the Law on Obligations of 1978.
Slovakia Descended from Austro-Hungarian law, influenced by German (minor influence prior to 1945) and Soviet (major influence after World War II) law, reformed after the Velvet Revolution of 1989.
Slovenia A Civil Law system influenced mostly by Germanic and Austro-Hungarian law systems
Spain Influenced by the Napoleonic Code, it also has some elements of Spain's legal tradition, starting with the Siete Partidas, a major legislative achievement from the Middle Ages. That body of law remained more or less unchanged until the 19th century, when the first civil codes were drafted, merging both the Napoleonic style with the Castilian tradions.
Sweden Scandinavian-German civil law. Like all Scandinavian legal systems, it is distinguished by its traditional character and for the fact that it did not adopt elements of Roman law. It is indeed worth mentioning that it assimilated very few elements of foreign laws whatsoever. It is also interesting that the Napoleonic Code had no influence in codification of law in Scandinavia. The historical basis of the law of Sweden, just as for all Nordic countries, is Old German law. Codification of the law started in Sweden during the 18th century, preceding the codifications of most other European countries. However, neither Sweden, nor any other Nordic state created a civil code of the kind of the Code Civil or the BGB.
Switzerland The Zivilgesetzbuch of 1908 and 1912 (obligations; fifth book)
Turkey Modeled after the Swiss civil law (Zivilgesetzbuch) of 1907; this has been a conscious choice of Kemal Atatürk, the founder of the modern Turkish state, in order to abolish the Islamic law (Sharia), aiming at westernizing the country
Ukraine Civil Code of Ukraine of 2004
Uzbekistan Represents an evolution of Soviet civil law. Overwhelmingly strong impact of the Communist legal theory is traceable.
Vietnam Communist legal theory and French civil law

Selasa, 15 Juni 2010

International Law Under the Constitution and Transnational Progressives

The U.S. Constitution created the structure for a sovereign nation operating in an international system. It recognized the importance of international law, and left the content, interpretation, force and effect of international law to the three branches of the U.S. government

Properly understood, the creation and use of international law is an exercise of sovereignty which can advance U.S. interests and national security. It is a serious undertaking of importance to vital issues. How is this traditional conception a? ected by the activities of “transnational progressives,” who, according to some, place a greater premium on norms found in customary international law?

Th is article proceeds from the analytical principle that international law is subordinate to the Constitution. Th is construct has been described as the “Internal/Constitutionalist narrative.” It is in contrast to the “External/Internationalist narrative,” which would treat external public international law, tribunals and sources as the controlling forces, and the “Transnational/Intersystemic narrative,” which would look to multiple, interactive systems of law to guide interpretation and application of international law.

The Internal/Constitutional narrative is the only one that courts and government o? cials can seriously embrace. It was the construct used by the U.S. Supreme Court in the most important recent case on international law, Medillin v. Texas, and used by the parties and the U.S., as amicus curiae, to brief that case. It is worth observing, however, that unlike most courts and government o? cials, theorists of international law—chie? y professors and advocates in non-governmental organizations—tend to accept and promote the other narratives.

Th e Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, anything in the Constitution or Laws of any State to the contrary notwithstanding.

Th e second reference to international law appears in the Defi ne and Punish Clause, which gives Congress the power to “defi ne and punish Piracies and Felonies committed on the high seas, and Off ences against the Law of Nations.” The Law of Nations was the Founding-era term for what, in part, is known today as customary international law.

The species of international law with the greatest force and eff ect is created by treaties, which are, in essence, contracts between sovereigns. When the U.S. enters into a treaty, negotiated by the President and ratifi ed by two-thirds of the Senate, it makes commitments and undertakes obligations to the other signatory nations. Treaties can include agreements about adjudication of disputes concerning their interpretation and application.

Treaties are subject to limitations. Michael Stokes Paulsen has argued, for example, that the United States cannot agree to undertakings which are inconsistent with the Constitution. This is typically avoided by attaching reservations, understandings, and declarations to ratification. Next, perhaps the most important limitation is the system of checks and balances established by the Framers. Th e power to interpret and apply all international law, including treaties, is shared by the three branches of government, as distributed by the Constitution. To summarize Paulsen’s comprehensive analysis, the President has responsibility to interpret and apply international law consistent with his powers to serve as Commander-in-Chief and to conduct the nation’s foreign policy. Congress has responsibility pursuant to its powers to declare war, and to defi ne and punish off enses against the law of nations by enacting legislation (or not enacting legislation) for carrying treaties into execution. Th e judiciary has responsibility to adjudicate cases presenting questions about treaties and customary international law which are properly before them.

There is a crucial distinction between international commitments made by a sovereign, and legal obligations that are enforceable as a matter of binding federal law in domestic U.S. courts. All treaties give rise to international commitments, but not all give rise to legal obligations that may be enforced in U.S. domestic courts. The distinction turns on whether a treaty is “self-executing.” A self-executing treaty is one that, upon Senate ratifi cation, has automatic domestic eff ect as federal law. A “non-self-executing” treaty only has domestic eff ect as federal law upon the passage of further implementing legislation. Even self-executing treaties are understood not to create private rights or provide for a private cause of action in domestic courts, in the absence of express language to the contrary.

The U.S. Supreme Court clearly applied these principles in the recent case of Medillin v. Texas. That case followed an International Court of Justice (“ICJ”) judgment in a matter known as Case Concerning Avena and other Mexican Nationals (Mex. v. U.S.) (“Avena”).

The U.S. Supreme Court held that the ICJ judgment in Avena would not supersede state procedural rules in criminal cases, even though the President had issued a Memorandum directing the states to give eff ect to the ICJ judgment.

Jose Medillin was a Mexican national who had lived in the U.S. since preschool. He became a member of the “Black and Whites” gang and was convicted in the brutal gang rape and murder of two girls, ages 14 and 16, and sentenced to death. He was not informed of his right, as a Mexican national, to notify the Mexican consulate of his detention. Th is right arises under a treaty the U.S. has entered into known as the Vienna Convention on Consular Relations (“Vienna Convention”), and the Optional Protocol Concerning the Compulsory Settlement of Disputes to the Vienna Convention (“Optional Protocol”).

Under the U.N. Optional Protocol, resolution of disputes concerning the interpretation or application of the Vienna Convention is subject to the compulsory jurisdiction of the ICJ. Th e U.S. has withdrawn from the Optional Protocol, but had not done so at the time that the ICJ issued the judgment in Avena. Th e ICJ is the principal judicial organ of the United Nations, and was established pursuant to the United Nations Charter (“U.N. Charter”), which itself is a treaty to which the U.S. is a signatory.

The State of Texas Court of Criminal Appeals declined to review and reconsider Medillin’s conviction. It dismissed his writ of habeus corpus, as an abuse of the writ, in view of Medillin’s failure to raise his Vienna Convention claim in a timely manner under Texas procedural default rules.

In Medillin v. Texas, the U.S. Supreme Court held that neither the ICJ judgment nor the Presidential Memorandum created federal law that could be enforced in U.S. domestic courts to preempt the procedural rules of Texas relating to habeus corpus petitions. In reaching this holding, the Court concluded that the U.N. Charter, the Vienna Convention, and the Optional Protocol did not create self-executing obligations eff ective in U.S. courts. It reached that conclusion based on analysis of the text of the treaties, the executive’s construction (notwithstanding the Presidential Memorandum, as Chief Justice Roberts acknowledged in his majority opinion in Medillin, the U.S. has unfailingly taken the position that the Vienna Convention and Optional Protocol did not, in themselves, create domestically enforceable federal law), and the post-ratification understanding and practice of other signatories.

As for the Presidential Memorandum, the Court held that in the absence of implementing legislation by Congress, the President had no authority to turn a non-self executing treaty into a self-executing treaty. It further held that the President did not have the independent power to order Texas to comply by virtue of his foreign aff airs authority to resolve disputes with foreign nations.

The import of Medillin v. Texas is clear. Unless a treaty or its implementing legislation expressly provides to the contrary, a judgment of the ICJ—or any other international tribunal—has no binding legal eff ect in the U.S., and the President is without power to change that result.

Another important limitation on treaties is that Congress can always supersede or override them by enacting subsequent inconsistent legislation. Th is is known as the “last-in-time” rule. Th ere is no dispute that a subsequent congressional enactment trumps a treaty. Th ere is also a serious view that the structure of the Supremacy Clause—which mentions the Constitution, and “Laws of the United States which shall be made in pursuance thereof,” i.e., statutes, before Treaties—creates a hierarchy in which all statutes, even those enacted prior to a treaty, will control over a treaty.

A final limitation, which is not universally accepted, is that pursuant to his foreign aff airs power, the President may interpret, suspend, or repudiate a treaty in whole or in part.

Th e second potential source of international law, known today as customary international law, is in essence the common laws of nations. Customary international law is defi ned as: (a) a widespread and uniform practice among nations that has ripened into a customary norm; (b) that nations follow out of a sense of legal obligation.

For a norm to be considered customary international law, it must have the widespread (but not necessarily universal) support of nations concerned with the issue it addresses, and must have continued long enough to give rise to at least an inference of recognition and acquiescence. Interim norms become customary international law once a large enough number of nations having an interest in them act in accordance with them. Th e assent of a nation is inferred by silence, except as to “consistent objectors.”

There is a special category of customary international law, jus cogens or “compelling law,” which is considered to consist of peremptory norms. Th e argument is that no nation is permitted to act contrary to those norms, whether or not it has acquiesced.
Although there is general acceptance of the concept of customary international law, beyond jus cogens, there is very little agreement on its content. Some argue that many malleable and questionable concepts should be considered customary international law binding in U.S. courts. For the most part, such arguments have been rejected.

In a case addressing customary international law known as Th e Paquete Habana, the U.S. Supreme Court began a passage with the phrase “international law is part of our law.” Th is is often embraced and quoted by progressive advocates. But the key portions of the passage limit the opening phrase, by explaining: “[W]here there is no treaty, and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations.”

In practice, customary international law is most relevant in U.S. domestic courts in cases brought under the Alien Tort Statute, which contains another Founding-era reference to the Law of Nations.

Since 1980, U.S. courts have permitted this statute to be used by non-U.S. citizens to sue private individuals and corporations for violations of international law. Th e U.S. Supreme Court has interpreted the statute only once, in Sosa v. Alvarez-Machain.

That case narrowed and refi ned the range of principles that might constitute customary international law aff ording a private cause of action under the ATS. Although it left open the possibility that new principles of customary international law might emerge, the Supreme Court took pains to urge judicial restraint, and gave strong indications that lower courts should limit rather than increase the emergence of new principles.

Within its proper sphere, international law is a positive instrument that can address areas of common concern among nations. Notably, as Michael Chertoff has observed, through international law “states assume reciprocal obligations to contain transnational threats emerging from within their borders so as to prevent them from infringing on the peace and safety of fellow states around the world.” But tensions arise when “international law” is inaccurately described to include something other than ratifi ed, implemented treaties, or the very few undeniably accepted principles of customary international law. Witness, for example, the failure of many countries to broadly protect free speech. Some speech that the U.S. protects under the 1st Amendment is considered by much of the rest of the world to be “heresy” or “blasphemy against Islam” and thus a violation of international human rights law.

Apart from application of customary international law, some support several proposed treaties that would present signifi cant incursions into traditional notions of sovereignty and would raise federalism issues. In May 2009, the Obama Administration sought Senate advice and consent on ratifi cation of the United Nations Convention on the Law of the Sea (“LOST”) and the United Nations Convention for the Elimination of All Forms of Discrimination Against Women (“CEDAW”). LOST mandates arbitration of maritime disputes before an international tribunal. CEDAW implicates gender quotas, pay standards, and parental leave, rules not presently embraced by domestic law. It also seems likely that the Obama Administration will seek ratifi cation of the United Nations Convention on the Rights of the Child, which would aff ect state discretion on issues such as juvenile justice, education, welfare, adoption, and custody and visitation.

One key arena for confl icts concerning the interpretation and application of international law is litigation brought into the U.S. domestic courts. Advocates calling for application of an international norm will often (1) argue that treaty obligations broader than those undertaken upon ratifi cation and execution are enforceable as a matter of U.S. domestic law; and (2) articulate the existence of broad and disputed principles of customary international law.

At times, courts are asked to (1) ignore U.S. reservations in treaty ratifi cations; (2) give domestic eff ect, as a matter of customary international law, to an alleged “consensus” of other signatories to a treaty that is contrary to U.S. reservations; and (3) grant the U.S. government powers on social and economic issues that, under the federal system in the U.S., historically reside with the states.