State sovereignty and customary international law

[John Rogers]

Eugene wrote:

>         I'm delighted that Prof. Golove has given us a concrete example that
>we can discuss.  Let's say that someone asks for habeas relief from a
>California death sentence, on the grounds that the sentence violates
>customary international law; what should the federal court do?

I regret that I was out of the office during the discussion of customary
international law and state sovereignty.  The relation between domestic and
international law is one of my primary scholarly interests.  I would like
to try to answer Eugene's questions, using the death penalty example,
accepting Eugene's views about Californians' right to self-governance.

The Supreme Court has indeed never held that customary international law
(without more) trumps State law, and the widely cited (but rarely read)
Supreme Court opinion in Ker v. Illinous (1886) is to the contrary.   Chy
Lung (1875) comes close, however, and the argument could be made today
using two lines of precedent.  First, the Court has applied customary
international law (the best examples are State boundary cases and prize
cases) when the federal court had to exercise jurisdiction and there was no
other operative rule (classic common law).  Second, the Court has applied
negative implications of congressional silence (federal common law) in
areas where the Congress has power to legislate but has not done so
specifically.  The most obvious example is the dormant commerce clause, but
other examples are federal government contractor liability and the act of
state doctrine.  It would not be too much of a stretch to put these two
lines together to hold that a customary international law obligation of the
United States binds a State as federal common law.

There would have to be limits on such a doctrine, to be true to Eugene's
concerns with the self-governance rights of Californians.  The limits would
inhere in the underlying theory for the doctrine.  First, there would have
to be an absence of federal statutes that either accept or permit such an
alleged international law violation (here capital punishment).  Second, the
federal government must have the power in the first place to require the
State to comply with the international obligation (since the theory is
based on the power of Congress).  Third, a court's determination of the
international obligation of the United States should not in principle
conflict with that of the Executive Branch.  Fourth, a court that strikes
down a State law must independently confirm that customary international
law forbids the State action.

With these limits, the answer to Eugene's question is clear -- no
habeas.  First, federal statutes clearly provide for capital punishment and
thus the federal Congress cannot be said to deem California's execution of
a capital sentence to be a violation of the customary international
obligations of the United States.  Second, even if no federal statute
authorized capital punishment, California could argue that under Lopez (and
absent a treaty under which the Missouri v. Holland would support federal
power), the federal government lacked the power to ban State executions, so
there could be no negative implication of a power that did not exist in the
first place.  Third, the Executive Branch has not taken the position
internationally that capital punishment is against customary international
law, so it would make no sense for a court to keep the United States in
compliance with an international obligation that the United States does not
accept internationally in its foreign relations.  Finally, given the
practice of nations, it is hard to argue objectively that customary
international law prohibits capital punishment in the first place.  No
habeas, for (up to) four independent reasons.

But, if a State were to prosecute a visiting head of state, say for drunk
driving, a reasonable argument could be made that customary international
law gives immunity to heads of state.  Habeas might in that case be
warranted.  Congress has not legislated to the contrary.  Congress has the
power to legislate such an immunity (most would concede this, although
there would be some dispute over the actual constitutional source).  The
executive accepts and relies upon head-of-state immunity at the
international level.  And customary international law requires such
immunity, objectively speaking (or at least it can be argued).

With these limits, treating customary international law as federal common
law to overturn a State conviction is no more intrusive on Eugene's
concerns than overturning a conviction under the negative implications of
the commerce clause.  These inherent limits are of course not emphasized by
those who make extravagant claims as to the scope of protections for
criminal defendants under customary international law.
John M. Rogers
Thomas P. Lewis Professor of Law
University of Kentucky College of Law
Lexington, Kentucky  40506-0048
tel. 859-257-3370
e-mail: jrogers at pop.uky.edu
http://www.uky.edu/~jrogers