Facilitating not
Hindering American Compliance with International Law
by John Cerone MAY
6, 2012
In response to:
Debating Sovereignty: Globalization, International Law, and the United States
Constitution
State sovereignty is
the fundamental building block of the international legal system. International Law, much like the US
Constitution, is at once an expression of, and self-imposed
limitation upon, sovereignty.
At the same time, international law is much less of a limitation on US
sovereignty than is the US Constitution, and rightly so.
Today’s international
legal system is a strongly positivist, consent-based system. In general, states are not bound by any rules
of international law that they have not themselves created or otherwise
consented to. While states have chosen
to greatly expand the scope and substance of international law, most of its
rules remain in the form of broadly formulated obligations that leave the
manner of their implementation in the broad discretion of states.
The US has been a
proponent of the development of international law since the founding of the
country, and this is reflected in its constitutional order. The Constitution of the United States was not
created in a vacuum. It was well
understood by the framers that they were drafting the Constitution
against the backdrop of international law. They consciously chose to buy into the
international legal system because it was clearly advantageous to do so. They wanted recognition as a sovereign equal,
and all of the rights and protections that international law provided to
states.
The international
legal system of that time was a system largely oriented toward co-existence,
and was one of relatively few rules.
Since that time, there has been a dramatic expansion in international
law, driven largely by the need for international cooperation in tackling the
world’s ills and in harnessing its opportunities. The United States has played a central and
powerful role in this evolution.
Successive US governments have consented to be bound by literally
thousands of treaties, and have supported the creation of dozens of
international institutions. The US also
frequently engages in treaty negotiations even in situations where it is clear
that the US will not become a party to the treaty being negotiated. The robust engagement of the US in this
process results from the recognition that international law and international
institutions are useful in serving US interests.
No one would dispute
the importance of federalism and the separation of powers in the US
constitutional system. But these principles
are not at odds with robust
engagement in the international legal system or a disposition toward
compliance with international legal obligations. The difference that has arisen seems to me to
be one of locating the burden of inertia.
It is my view that the default position of the US constitutional system
is, and ought to be, a disposition in favor of compliance. For this reason, the doctrine of
self-execution should be understood as a means of facilitating compliance.
The doctrine of
self-execution
As noted above,
international law generally does not dictate how international obligations are
to be implemented within the domestic sphere.
In the absence of a specific obligation in a treaty to alter some facet
of a state’s internal legal framework, it is usually up to each state to
determine how to give effect to its international obligations. That being the case, there is no established
international legal standard governing how international law is to be received
in the municipal sphere. As a result,
there is a great variety among states in the degree of penetration of
international law into the domestic legal system.
The US constitutional
design, consistent with the attitudes of the framers toward international law,
favors the reception of international law into its internal legal order. The U.S. Constitution declares that treaties
made under the authority of the United States, together with the Constitution
and federal law, “shall be the supreme Law of the Land.” The U.S. legal system appears equally
amenable to customary international law.
As the Supreme Court in The Paquete Habana famously proclaimed,
“[i]nternational law is part of our law, and must be ascertained and
administered by the courts of justice of appropriate jurisdiction, as often as
questions of right depending upon it are duly presented for their
determination.”
With regard to treaty
law, U.S. courts have developed a doctrine of self-execution, whereby a treaty
is to be regarded as “equivalent to an act of the legislature” when “it
operates of itself without the aid of any legislative provision.”[1] Such a self-executing treaty does not require
any additional legislative act to render it applicable as part of U.S.
law. However, “when either of the
parties engages to perform a particular act, the treaty addresses itself to the
political, not the judicial department; and the legislature must execute the
contract before it can become a rule for the Court.”[2]
This doctrine, which
is a doctrine of US law and a further expression of US sovereignty, is based on
the presumption that the US intends to comply in good faith with the
international obligations it has voluntarily undertaken. Understood as a means of facilitating compliance
with international law, it is consistent with the design of the Constitution
and the intentions of the framers. For
this reason, and in keeping with the jurisprudence of the Supreme Court that
developed the doctrine, treaties should be presumed to be self-executing.
As noted above, this
is simply a question of adopting a default position. In the event of a conflict between a rule of
U.S. federal law and a rule of international law applicable as U.S. law, the
later in time rule prevails.[3] Thus, a
later in time federal statute will override, within the framework of the U.S.
legal system, a self-executing treaty provision. Thus, Congress can always effectively
overrule a judicial finding of self-execution by enacting legislation.
The same is true for
decisions of international courts, the jurisdiction of which is again
consent-based. Where the US is subject
to a binding judgment of an international court, as, for example, in the Avena
case before the International Court of Justice (ICJ), the judgment should be
regarded as applicable US law. If the US
decides that it does not wish to implement that judgment within the framework
of the US legal system, that option remains open, but it would require
Congressional legislation. This would
leave the default position of the US legal system as one of compliance, which
is as it should be. Non-compliance
should be exceptional, and affirmative steps should be required for the US to
choose not to comply with an international obligation.
I therefore disagree
with the approach of the US Supreme Court in the case of Medellin v. Texas,
which held judicially unenforceable in US courts a judgment of the
International Court of Justice. The
Court essentially held that ICJ decisions are not enforceable within the US in
the absence of enabling legislation. The
fundamental problem with the Medellin judgment is that it leaves non-compliance
with ICJ judgments as the default position.
The default position should be compliance, and as such, judicial
enforceability. If there are compelling
reasons for non-compliance, the burden should be on the executive and the
legislature to adopt measures to that end.
Mention also should be
made here of the occasional practice of the Executive to append to instruments
of ratification understandings that a treaty is or is not self-executing. These understandings should not be considered
in determining whether a treaty is self-executing. The doctrine of self-execution is a judicial
doctrine. It is up to the courts to
determine on the basis of the text of each treaty whether it is amenable to
direct application as US law. This falls
within the power of the courts to determine and interpret the applicable law.
The power to interpret
international law
The US President
certainly has the power to interpret international law, just as he has the
power to interpret any rule of applicable law.
This power is a necessary incident to his role as Chief Executive. At the same, the President is of course not
the exclusive interpreter of any law.
This is a fortiori the case when it comes to international law, which is
subject to interpretation not just by other branches of government and other
federal, state, and local officials within the US, but also by other states,
international institutions, and the international community as a whole.
Within the framework
of the US legal system, the President will often be the first to interpret
rules of international law. But if there
is one clear principle of the separation of powers in the US constitutional system,
it is that the interpretation of applicable law by the courts is determinative
with respect to any dispute properly before them. It makes no difference whether the applicable
law is derived from legislation, executive acts, common law, international law,
or any other recognized source of law.
The US Executive has
the exclusive power to negotiate treaties.
It is vested with the exclusive power to consent to be bound by treaties
on the international plane. It has the capacity
to attach to its expression of consent reservations, understandings, and
declarations. It is the lead voice in
expressing consent to other rules of international law on behalf of the United
States. But its power to interpret
international law, just as with all other rules of law, is not exclusive, and
cannot be given primacy in matters properly before the courts without violating
a basic principle of the separation of powers.
Federalism and the
roles of the constituent states
The constituent states
of the United States assuredly have a lead role in implementing international
obligations that fall within their broad remit.
The US recognizes this whenever it appends a federalism understanding to
its instruments of ratification. But to
say that they have a lead role in implementation, and that they have broad
discretion in the manner of implementation, does not mean that they have the
option not to implement.
It is well recognized
that the states have a valuable role to play as laboratories for
experimentation. This is all the more the
case for countries across the globe, which represent a much broader spectrum of
diversity. International institutions
are frequently mandated to glean best practices from this broad array. International law values and accommodates
this diversity, and there is no reason to fear that it would hamper this
cultivation of best practices.
As noted above, the
difference in views appears to me to be one of setting the default
position. In line with the design of the
US Constitution, the intent of the framers, the common sense presumption that
the US intends to comply with its international obligations, the promotion of
US interests, and the recognition that the default position can always be
overcome by legislative and executive action, that position should be one that
facilitates compliance, not one that hinders it.
[1] Foster v. Neilson,
27 U.S. 253, 254 (1829).
[2] Id.
[3] This refers to
ordinary federal law. It does not
include rules of U.S. constitutional law, which would override any inconsistent
rule of international law within the domestic legal system.
