I. The types and sources of international lawStatute of the International Court of Justice: (Article 38) The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: (a) international conventions, whether general or particular, establishing rules expressly recognized by contesting states;
(b) international custom, as evidence of a general practice accepted as law; Determining custom: The general practice of states (how the state behave historically). Accepted as law: (Involves some element of mass psychology) “opinio juris”; the idea that there is come consensus as to what is accepted as law.
(c) the general principles of law recognized by civilized nations; The domestic legal principles of nations generally accepted so that they may be applied on the international plane. EX: due process, notice…(d) … judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. (secondary sources) Hints that there is some kind of priority among these sources. Judicial decisions might be useful in determining content of international law. Teachings of highly-qualified professors and research assistants. A. RULES OF CONVENTIONAL INTERNATIONAL LAW
i. U.S. PRACTICES AND CONSTITUTIONAL PRINCIPLES GOVERNING TREATIES Three Elements of Treaties Becoming the Law of the Land:1. Self-Executing v. Non-Self-Executing Treaties2. Last-in-Time Rule3. Terminating a Treaty1. TREATIES AND THE CONSTITUTIONRelevant Constitutional Provisions: Article II, section 2: Allows the president to make treaties with the advice and consent of the Senate. Supremacy Clause (Art. VI): TheConstitution, laws and treaties made under the authority of the U.S. shall be the supreme law of the land.
Guiding Principles on Role of Treaties in the Constitution: The existence of a treaty can make constitutional a statute that would have been unconstitutional absent the existence of the treaty, where the state interest is not sufficiently strong (e.g., “the invisible radiations of the 10th Amendment). (Missouri v. Holland)
No treaty can trump the Constitution. (Reid v. Covert) Above two cases are reconciled by attributing different weights to treaties affecting substantice individual rights and more general amendments (5th & 6th v. 10th). Missouri v. Holland (1920): The State of Missouri sued the Secretary of Agriculture to prevent enforcement of the Migratory Bird Treaty Act (executing a treaty between U.S. and Canada), which the State says invades its sovereignty and rights under the 10th Amendment. H: Nothing in the invisible radiations of the 10th Amendment preserves for the states the power to regulate these migratory birds. The right to regulate hunting of birds is within state power, but it is not exclusive to the states. Balancing Test Quality: When a court finds the federal interest strong enough, than a treaty can justify the legislation.
Reid v. Covert (1957): Defendants, civilian dependants of armed servicemen, killed their husbands on overseas bases. They were tried under the Uniform Code of Military Justice (UCMJ) which does not provide for a grand jury or jury trial. An executive agreement between U.S. and Great Britain provides the U.S. law apply in this situation. Government argues the UCMJ is the proper law. H: A treaty cannot go outside the constitution, and achieve by treaty what you could not achieve by statute. Therefore, a treaty cannot circumvent the jury trial guarantees of the Bill of Rights. Importance: (Black Letter) No treaty can trump the Constitution.
These holdings have been extended: A treaty that limited speech, saying that an embassy could not be held in disdain, was held invalid when it prohibited an anti-apartheid protest against the South African embassy. Rasul v. Bush:U.S. was found to have jurisdiction over a habeas claim by Kuwaiti and Australian citizens because of the special lease and exclusive jurisdiction the U.S. has over Guantanamo Bay. Thus, Guantanamo Bay is subject to U.S. law and the Constitution.
2. SELF-EXECUTING TREATY DOCTRINESelf-Executing Treaty: Becomes law in the United States once it enters into force internationally. It can be enforced by courts without domestic implementing legislation. It can be readily given effect by executive or judicial bodies, federal or state, without further legislation. (Restatement)
Non-Self-Executing Treaty: Becomes international law, but requires additional legislative action before it can be given effect domestically.Guiding Principles: Treaties are presumed to be self-executing. Treaties are self-executing, or not, on a provision-by-provision basis. Thus, it is a treaty’s parts, not the whole treaty, which is self-executing or not. Friendship, Commerce and Navigation (FCN) Treaties: (As in Asakura) Usually self-executing treaties, preserving the rights of foreign nationals while abroad. Where the treaty trenches on Congressional prerogatives, it is especially likely to be held not self-executing. Dualism: To say that a treaty is non-self-executing, only means that it is not enforceable within the United States. Thus, it U.S. can still be bound internationally.
Self-Executing Treaty Doctrine is unique to the U.S. and a few other nations. Most others do not make this distinction.What Makes A Treaty Self-Executing (Summary): Intento Languageo Context (including constitutional considerations) Judicial Predisposition (wildcard)o Result orientation (courts are inconsistent in applying this doctrine) o Mistaken or Incomplete Meanings of “Non-Self-Executing” Plaintiffs have nostanding Enforcement of the treaty is a political question.What Makes a Treaty Self-Executing?1. Intent. Courts have consistently held that the dominant determination of what makes a treaty self-executing is the parties’ intent. Restatement Sec. 111(4): An international agreement… is non-self-executing (a) if the agreement manifests an intention that it shall not become effective as domestic law with out legislation.” Determining Intent: Language. Treaty is self-executing where it doesn’t say anything about the need to enact legislation/domestic law to make the treating binding domestically. o Non-Self-Executing: Talks about future action.
o Self-Executing: Talks about present action.o Non-Self-Executing: Doesn’t proscribe definite action.o Self-Executing: Has the language of obligation, not aspiration. Evidenced in Asakura.2. Context. Factors to be considered… (People of Saipan v. US Dept. of the Interior; Postal) Purpose of the treaty Availability and feasibility of alternative enforcement efforts. Existence of domestic procedures appropriate for direct implementation. Immediate and long-range consequences of self or non-self execution. Existing statutory history of the United States. (Problem: Context is being used to trump language.) Evidenced in Postal.
Includes Constitutional Considerations. Where the Constitution states that only Congress can protect or act in a certain way, a treaty that deals with that area is not self-executing. o RS §111(4)(c): An international agreement is non-self executing if implementing legislation is constitutionally required.
o EX: Declaration of war, appropriations, alienation of federal land.) o Dualism: “Domestic law is no defense to an international wrong.” You must keep track of what forum you are in. In an international forum, you must cite some reason in international law that discredits the treaty. But, in a domestic court, theConstitutionality of the treaty is pivotal. 3. Judicial Predisposition. (Wildcard) Judges, who may not feel they have the institutional capacity to deal with international law, will hold a treaty not self-executing, thus leaving the decision to Congress. Problem: Result orientation (courts are inconsistent in applying this doctrine) o This practice undermines the Supremacy Clause because it enables courts to bypass the supremacy of treaties when it wants to.
Mistaken or Incomplete Meanings of “Non-Self-Executing”: Courts will say the treaty is not-selfexecuting instead of asserting the following more correct conclusions. o Plaintiffs have no standing.
Treaty was never intended to cover people in plaintiff’s position. Problem: It says more about the individual, than about the treaty. o Enforcement of the treaty is a political question. Too politically-charged for the court to decide.
Asakura v. City of Seattle (1924): Plaintiff, a pawnbroker residing in Seattle but a Japanese citizen, brought this case to restrain the City from enforcing an ordinance that would prohibit him from conducting his business, against him. The ordinance does not allow licenses to operate as a pawnbroker to people who are not U.S. citizens. An FCN Treaty provides that Japanese citizens will be treated equally with U.S. citizens when conducting business in the U.S. H: (Self- Executing Treaty) The treaty is supreme, binding within the state of Washington, and the ordinance is invalid as it violates the treaty, denying equal protection to the plaintiff. United States v. Postal (1979):
Defendants, U.S. nationals, were arrested on a boat registered in the Cayman Islands while in international water, for conspiring to import marijuana. The Treaty of the High Seas states that the state flying its flag on the vessel has jurisdiction. Treaty Provision in Question: Article 6 of the Geneva Convention of the High Seas (states sail under the flag of one state only). H: (Not-Self-Executing Treaty) The context of the treaty demonstrates that the intention of the parties was that it would not be self-executing. I: Postal shows that courts can take into account context when determining whether a treaty is self-executing or not. 3. RESERVATIONS, UNDERSTANDINGS AND DECLARATIONS
General Principles Governing Reservations: These have been most often used in human rights treaties. Dominguez and Beazley:o Both cases found the reservations to ICCPR valid – that you could execute minors. o Human Rights Committee said it was void, but the Court said that the HRC ruling was a recommendation, and not legally-binding.
Senate and President have the right to add a reservation to an internationally-binding treaty. o Problem: Dualism. Internationally, the reservation can be seen as so inconsistent with the purpose of the treaty that it is void.
Generally, U.S. Courts will uphold these reservations.Last-In-Time Rule: If you have a treaty that is inconsistent with a statute, everything depends on which came last. The purpose is to uphold the priority of treaties and statutes under the Supremacy Clause, in case of an inconsistency. Last-in-Time Rule Applied:
Where a later-enacted self-executing treaty conflicts with an earlier-enacted statute, the earlier statute is abrogated to the extent that it conflicts with the treaty. Non-self-executing treaties do not trump earlier statutes until Congress passes the implementing legislation. Then, the new statute will trump the earlier-enacted statute. As applies to treaties, the later-enacted statute can abrogate an earlier-enacted treaty ONLY as to its effects in domestic law. Additionally, the Charming Betsy Doctrine mandates construing a statute to be consistent with international obligations.
4. The Problem of InterpretationPrinciples of Treaty Interpretation By U.S. Courts: Alvarez and PLO Plain-Meaning of the Text Customary International Law: If the plain meaning is unclear, construe the treaty consistently with customary international law.
Practice of the Parties: If the plain meaning is unclear, consider the practices of the states – either how they applied the treaty or how they have acted historically. This includes the negotiating history of the parties. Submissions of the Executive Branch are Entitled to Substantial Deference: But, they cannot be controlling. (PLO)
Save the TreatyKer-Frisbie Doctrine: Courts will generally not inquire about the circumstances under which the defendant was brought before it. (Alvarez-Machain)Guiding Principles of the Problem of Treaty Interpretation: International law is not a suicide pact: States are not obliged to sacrifice their fundamental self-interest to vague laws of cooperation.o Thus, international law does not require the U.S. to stand by while its agents are tortured and murdered. (Alvarez is right.)o BUT, governments above all must act in accordance with the rule of law. (Alvarez is wrong.) Congress can override a treaty by statute: But if it intends to do this, it must make a clear statement it is doing so, and this clear statement must be within the body of the statute. (Clear Statement Rule required by Charming Betsy; See PLO)
Absent a clear statement that the statute is overriding the treaty, the Court will bend over backwards to reconcile treaties with existing law and preserve international agreements. (Save the Treaty: PLO) Principles of Treaty Interpretation in U.S. Courts: (Against Facts of Alvarez-Machain I) Plain-Meaning Rule of Treaty Interpretation
o The text controls, except for where it produces an absurd result. o Best argument that the treaty permits state-sponsored abductions: The treaty does not say anywhere that forcible abduction is prohibited. Reasons to Think Both Parties Intended Not to Prohibit Abductions: Both sides knew about the Ker-Frisbie Doctrine, and didn’t address it in the treaty. There exist extradition treaties that expressly don’t prohibit abductions. o Best argument that the text prohibits kidnapping:
If forcible abductions are allowed, several sections – including Article 9 – would be rendered meaningless if they can be ignored unilaterally (i.e., can’t extradite for political or military offences). Article 9: “If extradition is not granted, the requested Party shall submit the case to its competent authorities for the purpose of prosecution, provided that Party has jurisdiction over the offense.” o Gives the country discretion to determine who it wants to turn over to the other country. o Protects U.S. citizens from foreign jails.
o Each nation is given the right to insist that charges be brought against the national, in exchange for the other country being able to determine where it would like the prosecution to occur. The decision in Alvarez renders Article 9 superfluous.
o Criticism of the textual approach in this case: Alvarez-Machain represents the cleverness that has been used to circumvent international agreements. It is questionable whether the law arrived at the intent of either party. Violates implicit condition of good faith and fair dealing. Background Principles of International Lawo International Law as a Guide to Interpretation: If the plain meaning is unclear, construe the treaty consistently with international law. Argument for Alvarez: If it’s already illegal, then the parties did not think they needed to include abduction in the treaty. Argument against Customary Law Posed by the Court: Violation of a principle of international law is not necessarily a violation of the treaty.o ICJ Statute: Customary norms arise out of a general practice accepted as law. o Customary rule on extraterritorial exercise of authority in Alvarez-Machain: There is a mutual understanding that one government cannot exercise its power in another state without the state’s consent. This was not within the scope of the question the Supreme Court granted cert to. It was only asked whether the abduction violated the treaty, not whether it violated international law. Practice of the Parties
o If the plain-meaning is unclear, consider the practice of the parties. o When parties act outside the treaty with mutual consent, that is fine as aseparate agreement. o It’s hard to argue that this means it’s OK for one party to act unilaterally outside the treaty. This is what makes Mexico’s protest so powerful and important. o In dealing with the practice of the parties, the Court will sometimes look at the negotiating history of the treaty.
The submissions of the executive branch are entitled to substantial deference (PLO) o They cannot be controlling because the judiciary is not going to delegate its ability to say what the law is, to the executive.
Save the Treaty. (PLO)United States v. Alvarez-Machain (Alvarez-Machain I): Bi-lateral extradition treaty did not prohibit the forcible extradition of a Mexican citizen in Mexico, for trial in the United States for trial of a crime that occurred in Mexico. I: (1) Inkblot. What a Court sees is what it looks for. (2) Longer-term result of Alvarez: A devaluation of the power of treaties. If the executive branch can say, at any time, that the treaty means what we say it means, then no one is going to enter into international agreements with us. The good faith that makes treaties possible in the first place will be undermined. (3) Also shows that other governments should familiarize themselves with domestic law of the other country.
Roucher Case: The federal court’s authority to hear the case will be defeated if you violate the express or implied provisions of the treaty. (Dissent in Alvarez-Machain)
Decided on the Same Day as Alvarez Machain I: Two cases can be read consistently if you interpret them to apply in two different situations – where there has been a violation of the treaty and where there has not. United States v. Palestinian Liberation Organization (PLO): U.S. Anti-terrorism Act, which declared the PLO to be a terrorist organization, and prohibited the establishment of an office by the PLO within the U.S., conflicts with the UN Headquarters Agreement, which provides that the U.S. can’t interfere with the operation of the missions to the UN. H: The ATA was not meant to apply to the PLO under the UN Headquarters Agreement.
The Last in Time Rule Doesn’t Apply: Though the statute seems to nullify the Headquarters Agreement, the Court must do whatever it can to find the treaty and the statute consistent – so the last in time rule doesn’t apply. Three reasons why the rule doesn’t apply: 1. Not specifically mentioned in the language of the Act, so this inaction shows equivocation or ambivalence by Congress.
2. The language of the Act says “Notwithstanding any provision of law” and not “any treaty”. 3. No one in Congress stated a clear intent of wanting to address the PLO mission to the UN. I: The Court is bending over backward to preserve both the statute and the treaty. 5. EXECUTIVE AGREEMENTS
Division of Agreements into Three Categories: Congressional-Executive Agreements: Executive agreements pursuant to legislation. o Acting pursuant to express legislation giving him express power to enter into the agreement (where there may not be 2/3 support in the Senate, the President still has strong authority because the Act passes both houses). o Acting with implicit Congressional support to enter agreements required to carry out other international obligations previously authorized by Congress.
o EX: NAFTA and WTO. Congressional approval does not need to be explicit. (Dames & Moore) Sole Executive Agreements: Agreements pursuant to the Constitutional authority of the President. o Authorized by the Recognition Clause and the Commander-in-Chief Clause. Guiding Principles for Executive Agreements:
The President is the sole organ of the federal government in the field of foreign relations. (Curtiss-Wright) o True BUT… Congress (declare war, regulate commerce with foreign nations, approve treaties) and the Judiciary (interpret treaties) both have a huge impact on foreign relations. Supreme Court has never struck down an executive agreement as being outside the authority of the President. Thus, as a matter of Presidential power, the limits on executive agreements are fairly theoretical, because the Supreme Court has never struck one down.
The Court will give a generous interpretation of the spirit of the statute when it deals with executive power in the realm of foreign affairs. (Dames & Moore) Executive agreements cannot infringe upon individual rights under the Constitution, just as treaties cannot infringe on these rights (Reid). Congressional-Executive Agreements: The combined power of Congress to oversee foreign commerce and the President’s power to negotiate international agreements, lends strong authority to entering into congressionalexecutive agreements. (Made in the USA)
Executive agreements override inconsistent state law. (Pink) The President has the broad authority to settle international claims, and Congress has consented to this through its knowledge and acquiescence of the practice. (Dames & Moore)
Criteria for determining whether to use executive agreement or treaty: (Made in the USA) Extent to which the agreement involves commitments or risks affecting the nation as a whole. o This leans in the direction of treaties.
Whether the agreement is intended to affect state laws.o This leans in the direction of treaties (want Senate approval because then you trump state law under the supremacy clause). The degree of formality desired for an agreement.o This too leans toward treaties. Preference of Congress with respect to a particular type of agreements. o This actually cuts toward executive agreements, because then both houses of Congress would be able to consider the agreement.
Past United States practiceo Congress and the President have dealt with trade agreements in the past as executive agreements. Problem is that all of these which cut in favor of treaties would have pushed for NAFTA to be a treaty. Political Considerations: If there is disfavor in the Senate, an executive agreement will get around it. Made in the USA Foundation v. United States: (Congressional-Executive Agreement) The President is not required to gothrough Article 2 proceedings (treaty clause, agreement submitted to Senate) to adopt NAFTA, or to adopt it by Fast-Track Procedure. Rationale: The President has the power to negotiate under the Constitution. Congress has the plenary power over foreign commerce under the Constitution. Therefore, the treaty power is not the exclusive means. Also, there is a tradition of using fast track procedures for making international agreements. I: The combined power of Congress to oversee foreign commerce and the President’s power to negotiate international agreements, lends strong authority to entering into congressional-executive agreements. United States v. Pink: (Executive Agreement Pursuant to Constitutional Power of the President) After the Russian Revolution, the Soviets nationalized U.S.-based assets and said they belonged to the Soviet government. The U.S. would not let them claim these. So, in 1933, both governments entered into the Litvinov Assignment, where the Soviets assigned their claims to U.S.-based assets to the United States government in exchange for recognition. The U.S. government is suing the insurance commissioner of New York, to claim as successor to the Soviet government, the New York assets of the First Russian Insurance Co. H: The President is allowed to enter into this executive agreement. It is the President’s power to recognize a sovereign nation, and his power supersedes these inconsistent state laws. I: Executive agreements override inconsistent state law.
Dames & Moore v. Regan: (Congressional-Executive Agreement) Carter entered into an executive agreement with Iran to free the hostages. He would release all attachments and liens on the Iranian assets in the United States, and suspend legal claims against Iran, channeling them into an international claims tribunal, in exchange for the release of the hostages. H: The executive agreement is valid. Though neither Act of Congress directly authorizes the suspension of these claims, they demonstrate that Congress has accepted the authority of the President to enter into settlement agreements because they were aware of this practice and did not reject it. I: The President has the broad authority to settle international claims, and Congress has consented to this through its knowledge and acquiescence of the practice. 6. LIMITS OF LOCAL POWER IN INTERNATIONAL LAW
Dormant Foreign Affairs Preemption: Even if the federal government has not exercised its foreign affairs power, through a statute or executive order, those implicit powers constrain what the states can do. There is an argument that it should apply only to war and treaties, but not to taxes. Guiding Principles for Local Power in International Law: Dormant Foreign Affairs Preemption. The local law must give way if it explicitly infringes on the federal power of diplomacy. (Zchernig) It is not enough to say that the law is null and void under dormant foreign affairs preemption, the government must show that the state law interfered with the federal law/responsibilities in very specific ways (can be implicit). (Crosby)
According to Garamendi, anything touching on the foreign affairs power is preempted by federal power. There is no clear test for determining limits to foreign affairs power: There is no bright-line test for determining where foreign affairs powers begin and end, but this an intended part of the Constitution in offsetting powers. No automatic deference to the Executive: The submissions by the Executive branch are entitled to deference, but for reasons of our own separation of powers, we cannot hold it dispositive. (Zschernig) Zschernig v. Miller (1968): (Dormant Foreign Affairs Power) There is a escheat law in Oregon that states before foreign heirs inherit an estate of an Oregon resident, the heirs – citizens of East Germany – must show that their inheritance will not be confiscated by their home governments. The Oregon law, as applied, seemed to have a demonstrated effect on international law. Footnote 8: Courts were using this law as a platform for dumping on Communist governments at a great height, thus showing the statute had significant diplomatic effects. H: The local law must give way if it infringes on the federal power of diplomacy. I: The Oregon law and laws like it are used as a vehicle for domestic law to affect international law.
Crosby v. National Foreign Trade Council (2000): Congress and the President made a statute regarding the mandatory sanctions on Burma. The federal law put specific economic pressure on the Burmese government, and designated the President as the sole spokesperson on this foreign affairs issue. The Massachusetts law was much more strict than the federal law, and interferedwith the President’s role to negotiate (“speak with one voice”). It also had a much broader scope than the federal law. H: The Massachusetts statute was preempted by the federal law, as incompatible with the federal law that occupied the field. I: It is not enough to say that the law is null and void under dormant foreign affairs preemption, the government must show that the state law interfered with the federal law/responsibilities in very specific ways. Alters preemption doctrine: The preemption exists whether it is explicitly imposed or not. The Court finds implicit preemption, where it used to require explicit preemption. American Ins. Ass’n v. Garamendi (2003): Insurance companies who sold policies in Europe between 1929-1945, had to register with the CA government.
Issue: Is the CA law preempted by the federal government’s foreign affairs power? Government Argument: Violated the commerce clause and the dormant foreign affairs preemption. State Argument: However, states have had relative autonomy for regulation of insurance. Holding: The CA law is preempted. It impermissibly interfered with the President’s conduct of foreign affairs. Importance: Reinforces the idea that we have a different preemption standard when dealing with foreign affairs. Dissent: Short of a clear statement that the state law is preempted, the state law is good. ii. INTERNATIONAL PRINCIPLES GOVERNING TREATIES
1. THE VIENNA CONVENTION ON THE LAW OF TREATIES (VCLT)Vienna Convention on the Law of Treaties (VCLT): States the international legal principles regarding agreements in legal form.Pacta Sunt Servanda: (Art. 26) Honor your promises.Travaux: (Art. 32) Negotiating history.Rebus Sic Stantibus: (Art. 62) Changed circumstances.Jus Cogens: (Art. 53 and 64) Peremptory norms.Rules Binding Parties:Article 26: Pacta sunt servanda.Every treaty in force is binding upon the parties to it and must be performed by them in good faith. (Idea now considered customary law)Article 27: Domestic law is no defense to international obligations. A party may not invoke the provisions of its internal law as justification for itsfailure to perform a treaty. o On the international plane, it is no defense that the Constitution would prohibit the responsibilities under the treaty.
o This is often taken care of through reservations.General Rules of Treaty Interpretation:Article 31: General Principles Governing Treaty Interpretation. (1) A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. (2) Can consider side agreements to interpret treaties. The context for the purpose of the interpretation of the treaty shall comprise, in addition to the text, including its preamble and annexes: (a) any agreement which was made between the parties in connection with the conclusion of the treaty; (b) any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by other parties as an instrument related to the treaty; (3) There shall be taken into account, together with the context: (a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions;
(b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding the interpretation;(c) any relevant rules of international law applicable to the agreement. Article 32: Supplementary Means of Interpretation.Recourse may be had to supplementary means of interpretation, including the prepatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of Article 31, or to determine the meaning when the interpretation according to article 31: (a) leaves the meaning ambiguous or obscure,
(b) or leads to a result which is manifestly absurd or unreasonable. Termination of a Treaty:Article 52: Coercion of a State by Threat or Use of Force.A treaty is void if its conclusion has been procured by the threat or use of force in violation of the principles of international law embodied in the Cha