State sovereignty and customary international law

[Francisco Forrest Martin]

Prof. Funk wrote:

"I hope that in answering this question the international law buffs will distinguish a couple of situations: one situation is where the customary international law is one endorsed and supported by the United States (as reflected in official statements by the Dept of State); the other situation is where the customary international law is one that is not endorsed or supported by the United States (there being no official statements on point); and the third situation is where the customary international law is one that has been affirmatively rejected by the United States (as reflected in official statements by the Dept of State -- I am assuming that if there is a federal statute affirmatively rejecting the customary international
law, that law would trump customary international law)."

Of course, Prof. Funk here is implicitly referring to the Persistent Objector Rule in international law, and I would mostly agree with him. However, in his last situation, I think that there are exceptions to the Restatement's claim that a federal statute enacted after the emergence of a customary international law norm trumps that norm. Such exceptions include those customary international law norms reflected in widely adopted, multilateral human rights treaties that also establish a court/tribunal for the treaty's interpretation/enforcement.

The reasons for this are the following.  First, such customary international law norms "re-enact" themselves constantly through their interpretation by these international courts/tribunals.  (This is very clear in the case of the Eur. Ct. H.R. which uses the technique of "evolutive interpretation.")  Second, the Restatement's claim is incongruous with the Persistent Objector Rule, which it apparently endorses, because the Rule does not allow state exemption after the customary international law norm has emerged.  The state may only object DURING the emergence of the norm.  Third, as more states become parties to a multilateral treaty, the U.S. acquires new treaty commitments with these new states-parties, thereby, re-enacting both the treaty and emergence of the customary international law norms reflected in the treaty.  Fourth, the underlying purpose of the Persistent Objector Rule -- protecting national sovereignty -- is not served in the context of human rights, which refle!
!
ct transnational -- as opposed to international -- concerns.

If one buys this argument, there appear to be only two ways that the U.S. could exempt itself from such customary international law norms. First, the President could unilaterally terminate or suspend the multilateral treaty that reflects the customary international law norms. See Goldwater v. Carter, 444 U.S. 996 (1979). (S/he could not, however, terminate or suspend parts of the treaty.)  However, the constitutional authority to do so is unclear and should be limited to those circumstances in which the President is acting in his/her role as Commander-in-Chief in a foreign affairs context.  Second, the U.S. could ratify a new multilateral treaty (which abrogates the earlier treaty) that reflects new customary international law norms.

Francisco Forrest Martin
Ariel F. Sallows Professor in Human Rights
University of Saskatchewan College of Law