INTERNATIONAL LAW

PROF. RALPH STEINHARDT

FALL 2003

INTRODUCTION TO THE TYPES AND SOURCES OF INTERNATIONAL LAW

Introduction

  1. U.S. is currently committed to unilateralism – “American exceptionalism”
  2. IL traditionally dealt w/ states; there was an absolute barrier b/w IL and domestic law
  3. IL dealt w/ rules about boundaries and the interpretation of consent (only bound by consent)
  4. IL preserved more power than it constrained
  5. The whole point of traditional IL was to define and protect a zone of discretion wherein states could do what they wanted
  6. Today, IL has gone from being about fences to being about bridges that connect states
  7. IL is intermestic – it combines IL and domestic law into something that is both and neither
  8. IL includes and defines the rights of individuals, corporations, and NGOs
  9. Two visions of IL
  10. Critic’s view
  11. IL is utopian moralizing, elaborate rhetoric, sounds & fury signifying nothing
  12. Steinhardt’s view
  13. Success has a way of disappearing
  14. When IL is followed, that’s not front page news
  15. The violations of IL crowd out its successes
  16. IL often and silently succeeds
  17. Most IL is internalized by states
  18. Most states follow most of IL most of the time

Sources of International Law

  1. Art. 38 of ICJ Statute – The Four Sources of IL
  2. (a) International Conventions
  3. Treaties
  4. Focuses on the intent of the parties – ensures that consent was fully and freely expressed
  5. This is the contractarian quality of IL
  6. (b) Customary IL
  7. Two Aspects
  8. General Practice of States
  9. Ask, “Do states in fact do X?”
  10. This is objective, empirical, and historical
  11. Must argue from history to establish CIL; look for a pattern of behavior
  12. Opinio Juris
  13. “Accepted as law”
  14. OJ is the feeling/conviction on behalf of states that a generalized legal practice is required by law
  15. Look for something that shows the state is doing it b/c it thinks it has to – state thinks it is required by law to act in a certain way
  16. This is not empirical – it’s a study in mass psychology
  17. The question is, “Who is accepting the law?”
  1. (c) General Principles of law recognized by civilized nations
  2. Look to the few general principles of domestic law that recur in various legal systems
  3. When you have a GP, extrapolate from the GP to the plane of IL
  4. Ex: You can’t benefit from your own wrong; can’t be a judge in your own case
  5. (d) Judicial decisions & expert teachings
  6. U.S. Supreme Court, U.K. House of Lords, South African Supreme Court
  7. Remember: ICJ does not enjoy stare decisis
  8. Writings & teachings of academics
  9. Things that are missing from Art. 38:
  10. Proliferation of IGOs
  11. Actions of NGOs
  12. Actions of int’l commercial groups

Rules of Conventional International Law

A.U.S. Practices and Constitutional Principles Governing Treaties

1.The Definition of “Treaty”

a.IL Definition

i.VCLT Art. 2 – A treaty is an international agreement

  1. Between states
  2. In written form
  3. Governed by IL
  4. *A “party” to a treaty is a state who has consented to be bound by the treaty

b.U.S. Definition

i.Only some int’l agreements are called treaties:

ii.Any int’l agreement [1] concluded by the President [2] with the advice & consent [approval] of 2/3 of the Senate. U.S. Const. Art. II § 2.

  1. Such treaties approved by the Senate are the “law of the land” under the Supremacy Clause [Art. VI] and may be directly enforceable in the courts
  2. Thus, an Art. II treaty has status as a U.S. domestic law, in addition to creating an obligation under IL

2.U.S. Treaty Practice

a.The Case Act requires Secretary of State to transmit to Congress copy of all int’l agreements

i.Perception was that Pres could enter into agreements that could lead to unfortunate consequences for whole nation, w/o benefit of advice or review by Senate/Congress

b.RS 301 – Comment (p 115)

i.Regardless of what a treaty is called [treaty, convention, agreement, protocol, etc], all agreements have same legal status unless otherwise indicated

ii.VCLT species that it applies only to written agreements – but under CIL, oral agreements are no less binding, though their terms not readily proven

iii.A unilateral statement is not an agreement, but may have legal consequences and may contribute to CIL

iv.An int’l agreement does not include a commercial K by a state [even w/ another state] intended to be governed by some national or other body of K law

v.An int’l agreement is one intended to be legally binding & to have legal consequences

3.Article II Treaties

a.Scope of the Treaty Power and Limitations Thereon

i.Missouri v. Holland [U.S. 1920](p 177)[Fed gov entered into treaty w/ Canada to counteract alarming decline in migratory birds; Congress imposed regulations on the hunting of migratory birds and states’ rights activists got pissed; govt defended the legislation under Art. I § 8 of the Constitution as necessary and proper to execute the laws of the U.S. – which included the treaty w/ Canada (by virtue of Supremacy Clause); Supremes rejected the states’ rights argument]

  1. A Congressional treaty may override a state’s power to regulate
  2. States & municipalities have little or no power when a matter becomes internationalized
  3. 10th Amend. too abstract to vest any rights in states against fed power here

ii.Reid v. Covert [U.S. 1957](p 179)[Wives of soldiers stationed in UK killed husbands; were tried, convicted, and sentenced to death w/o jury by court-martial; US & UK had int’l agreement conferring exclusive crim jurisdiction on UN over such crimes by civilian dependents; Δs argued that they should be protected by Bill of Rights & Constitution, even abroad; Supremes agree]

  1. There can be no unconstitutional treaties
  2. Holding – citizens abroad are entitled to protections of BoR & Const. when govt drags them into court
  3. When Govt reaches out to punish a citizen who is abroad, shield of BoR & Const. that protect life & liberty should not be stripped away just b/c Δ happens to be in another land
  4. No int’l agreement can confer power on the Congress or Executive which is free from the restraints of the Constitution.
  5. Congress/Exec cannot do by treaty what they cannot do by Const.
  6. It would be manifestly contrary to the Constitution to construe the Supremacy Clause as permitting the US to exercise power under an int’l agreement w/o observing constitutional prohibitions

iii.U.S. v. Verdugo-Urquidez [U.S. 1990](p 185)[4th Amend. search & seizure protections do not apply when govt acts against property owned by a nonresident alien and located abroad]

  1. The restrictions of the Constitution do not follow the govt when it acts abroad against nonresident aliens
  2. Aliens only receive const. protections when they have come w/in U.S. territory and have developed substantial connections w/ this country
  3. 4th Amend. secures “the right of the people” to be free from unreas. S&S
  4. Purpose of 4th Amend. is to protect people of the US against arbitrary action by its own govt
  5. Reconciling this w/ Reid v. Covert: U.S. citizens protected by BoR & Const. even when abroad, if the U.S. govt seeks to punish them; however, U.S. govt not restricted by Const. when it acts abroad against nonresident aliens

iv.Crosby v. Nat’l Foreign Trade Council [Supp][Mass. passed law restricting trade w/ Burma; it conflicted w/ fed law delegating Pres the discretion to control economic sanctions against Burma]

  1. If state law undermines the “intended purpose and natural effect” of fed law governing int’l relations, state law struck down as invalid under Supremacy Clause
  2. Here, Mass law incompatible w/ fed statutory prerogatives; Supremes were concerned that state law would blunt Pres’s actions; state statute interfered w/ Pres’s ability to proceed w/ diplomatic relations; ability of the US to speak w/ one voice was compromised; the State act created multiple sources of power

v.Holocaust Insurance Case [2003][CA statute req’d any ins. co doing business in CA with any connection to Holocaust-era ins. policies to make those polices public; Supremes say statute invalid b/c it interfered w/ exec’s control of foreign relations]

  1. Dissent [joined by Justices of the far left & far right] argued that before fed preemption kicks in, there should be a more clear statement by fed govt that the fed govt occupies the field and preempts state laws
  2. Fed preemption doctrine is in a state of flux

b.The Later-in-time rule

i.Conflicts b/w statutes & treaties are resolved by applying whichever one came later in time

  1. Congress has the power to nullify a treat through later-in-time rule, but has to explicitly say what it’s doing
  2. If statute comes first and is followed by irreconcilable treaty, the treaty applies to the extent of the conflict
  3. Wild card: judicial interpretation
  4. Judges will bend over backwards to make the inconsistency disappear and preserve both statute and treaty. PLO

c.The Charming Betsy Principle

i.A court will not construe an act of Congress to be inconsistent w/ IL if any other construction is possible. The Charming Betsy [U.S. 1804]

d.The Effect of Article II Treaties as Domestic Law – Self-Executing Treaties

i.RS 111. Int’l Law and Agreements as Law of the U.S.

  1. (1) IL and int’l agreements of the US are the supreme law of the land
  2. Cmt. d.: CIL and int’l agreements of the US other than treaties are also federal law and as such are supreme over State law
  3. Interpretations of int’l agreements by Supremes are binding on States
  4. A determination of IL by Supremes is binding on the States & state cts
  5. (2) Cases arising under IL or int’l agreements are w/in jurisdiction of fed cts
  6. (3) Courts in the US are bound to give effect to IL and to int’l agreements [unless they are “non-self-executing” – see below for determination]

ii.Is the treaty self-executing?

  1. Intent – look to the language
  2. Does agreement intend to require implementing legislation before the agreement becomes effective as domestic law? RS 111(4)(a)
  3. Did Congress in giving its approval say this treaty needs implementing legislation? RS 111(4)(b)
  4. Language of obligation, not aspiration
  5. Language like “use best efforts” & “shall as far as possible” usually not SE
  6. Stuff like “thou shalt not” more likely to be SE – language of present action
  7. Context
  8. Is implementing legislation constitutionally required? RS 111(4)(c)
  9. Does int’l agreement purport to achieve what lies w/in exclusive law-making power of Congress under the Constitution? If so, it cannot take effect as domestic law w/o implementation by Congress. Cmt. i.
  10. Ex: int’l agreement providing for payment by US requires an appropriation of funds by Congress in order to effect payment
  11. If int’l agreement is silent as to its self-executing character, & intention of the US is unclear, look to what Pres says in concluding agreement or submitting it to Senate or Congress, or what Senate or Congress Says. RS 111 cmt. h.
  12. If Exec has not requested implementing legislation & Congress hasn’t enacted such legislation, presumption that treaty is Self-Exec. Reporter’s Note to 111.
  13. Judicial Predisposition
  14. Invoking treaties in a courtroom can sometimes provoke blank stare
  15. Sometimes courts say a treaty is non-SE when they mean:
  16. Π is without standing
  17. This treaty was never intended to cover these facts
  18. Treaty does not create a private right of action
  19. This treaty creates an int’l obligation, but was not meant to be enforceable by individuals
  20. Treaty raises a non-justiciable PQ

iii.Asakura v. Seattle [U.S. 1924](p 192)[City of Seattle passed an ordinance discriminatory towards Japanese; Court says FCN Treaty w/ Japan is SE; treaties are laws of the US and no state law can trump them; Seattle ordinance inconsistent w/ the treaty]

  1. FCN Treaties generally assumed to be self-executing – no addt’l legislation req’d

iv.People of Saipan v. U.S. Dept. of Interior [9th Cir. 1974](p 194)[Treaty req’d US to serve in a fiduciary role for people of Saipan; US dude in charge in Saipan entered into lease w/ Continental Airlines to construct & operate a hotel on public land on a beach in Saipan; Govt argues that the Trusteeship Agreement can only be enforced by UN SC; 9th Cir. says Trusteeship Agmnt can be a source of rights enforceable by an individual litigant in US courts]

  1. Factors to consider in determining whether treaty is Self-Executing
  2. Purposes of the treaty & objectives of its creators
  3. Existence of domestic procedures & institutions approp for direct implementation
  4. Availability & feasibility of alternative enforcement methods
  5. Immediate & long-range social consequences of self- or non-self-execution
  1. U.S. v. Postal [5th Cir. 1979](p 197)[Issue was whether US court could assert jurisdiction over persons arrested outside the TS of the US aboard a foreign vessel in violation of Art. 6 of the High Seas Convention; court held that such a violation does not divest court of jurisdiction]
  2. The regulation of a vessel on the HS is normally the responsibility of the nation whose flag that vessel flies, and of that nation alone
  3. Court says Art. VI of the High Seas Convention is NOT Self-Exec.
  4. Context shows no manifest intent to make it SE
  5. Since not SE, courts still have jurisdiction

4.Executive Agreements

a.Basics

i.Pres acting alone w/o the senate has committed the US to a number of int’l agmts

  1. Many are secret; many are not trivial
  2. Agreements that ended WWII
  3. SE Asia commitments that lead to Vietnam War
  4. Exec agreements that created IMF, World Bank, WTO

ii.Interesting thing: where does the Pres get this power?

  1. Exec agreements don’t fit in a particular niche of the Constitution
  2. Supremes have never held an executive agreement invalid, but have offered no clear guidance defining the pres’s power
  3. Dept. of State has not helped in resolving the question

iii.If Pres wants to make an agreement that may impinge upon a text- or tradition-based Congressional power, he’ll make a congressional-executive agreement

  1. Pres seeks approval of joint resolution of Congress
  2. It’s a political matter that assures that Congress buys into it

b.DOS Circular 175 (p 210) – There are 3 constitutional bases for int’l agreements other than treaties:

i.(1) Agreements pursuant to treaty

ii.(2) Agreements pursuant to legislation

iii.(3) Agreements pursuant to the Constitutional Authority of the President

  1. Pres can conclude int’l agreement on any subject w/in his const. authority, so long as the agreement is not inconsistent w/ constitutional legislation enacted by Congress
  2. The constitutional authority for the Pres to conclude such agmts:
  3. Pres’s authority to represent the nation in foreign affairs
  4. Pres authority to receive ambassadors & other public ministers
  5. Pres’s authority as Commander in Chief; AND
  6. Pres’s authority to “take care that the laws be faithfully exectd”

c.The Case Act (p 113) – Sec of State shall transmit to Congress the text of any int’l agreement other than a treaty to which the US is a party as soon as practicable but no later than 60 days after its making

i.Supposed to reduce oral agreements to writing

ii.Problems:

  1. Congress has been overwhelmed by sheer volume of the agreements
  2. Exec branch has too much discretion in deciding what’s an int’l agmt
  3. Strategic ambiguity on Congress’ part

d.U.S. v. Curtiss-Wright [U.S. 1936](p 224)

i.The pres is the sole organ of U.S. foreign affairs

  1. Is this true in principle?
  2. Courts interpret treaties, and that has implications for foreign affairs
  3. Congress has power to declare war, define & punish offenses against the law of nations, to regulate commerce w/ foreign nations – all of which have implications for foreign affairs
  4. We don’t have one voice; we don’t have a king
  5. But this rhetoric persists
  6. What about private actors?
  7. Doesn’t the Boeing Corp. have a voice in foreign affairs?
  8. What about Jesse Jackson or congressional members on trips?

e.U.S. v. Pink [U.S. 1942](p 228)[Soviet govt nationalized certain Russian companies w/ assets in the U.S.; in U.S. court, Soviets claim that the US-based assets belong to Soviet govt; problem was that the Soviet govt was not recognized by the US, so US courts not open to them; in a deal called The Litvinov Assignment, the Soviets assigned their interests in US holdings to the US govt, and in exchange, the US recognized USSR; lower court dismissed the US action to claim the assets for the Soviets; court said it was against public policy of NY to have the US got be the bagman for the godless Commies; Supremes reverse]

i.Executive agreements and treaties are equivalent for purposes of superceding state law a la the Supremacy Clause

  1. Like a treaty, an exec agreement is the law of the land and supercedes inconsistent state law
  2. State must yield to an exec agreement just as it yields to a treaty
  3. These are powers of foreign affairs, and states can’t interfere w/ fed govt

ii.Was The Litvinov Assignment a treaty?

  1. Not w/in meaning of US law, b/c it was not sent to Senate; it’s an exec agmt
  2. The Assignment was effected by an exchange of diplomatic correspondence
  3. It’s an int’l compact b/w 2 govts
  4. So it’s not a treaty for purposes of the Treaty Power (b/c not submitted to Senate), but it’s equivalent to treaty for purposes of the supremacy clause and thus it displaces conflicting state law

iii.Here, Pres had an explicit Const. power – to appoint & receive ambassadors – this suggests that pres has sole power to recognize foreign govts – so what Pres did here was just make an agreement w/ USSR regarding recognition

  1. But what do you do when connection to Pres’s express or implied powers more attenuated? Cong-exec Agmt (see above)

f.Dames & Moore v. Regan [U.S. 1981](p 239)[By exec order pursuant to an exec agreement that was intended to end the Iranian hostage crisis, Pres. Carter nullified some liens and attachments to Iranian assets in the US; Carter set up an int’l tribunal to handle the claims, so they weren’t nullified, just transferred to diff forum; Πs argued that this was an unconstitutional taking w/o compensation; issue was whether Carter could constitutionally suspend the claims pending in US courts; Supremes said yes]

i.The exec branch has broad discretion to settle int’l claims, and Congress has historically approved

  1. “Past practice does not, by itself, create power, but long-continued practice, known to and acquiesced in by Congress, would raise a presumption that the action had been taken in pursuance of its consent.”

ii.Courts will read legislation fairly generously when dealing w/ a statute regarding executive powers, especially when we’re talking about the spirit of a statute dealing w/ Pres powers in foreign affairs

iii.Pres power at its max when he’s acting in conformity w/ powers delegated to him by Congress (Youngstown Sheet & Tube); here, Congress acquiesced in Exec’s power to settle int’l claims

iv.This was not a taking b/c it was a mere transfer of venue

  1. This is how you square this case w/ Reid v. Covert [no uncons. exec agmts]
  2. There was no violation of Constitution b/c it didn’t extinguish claims, so no problem w/ Reid v. Covert

5.Treaty Interpretation in U.S. Courts

a.5 Basic Principles of Treaty Interpretation

i.(1) Determine the plain meaning of the text