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.