Does international law supersede Congressional acts?

[Blumstein, James]

This rather extraordinary dialogue impelled me to read the Nicaragua case,
referred to by Professor Martin.  Judge Mikva's decision for the court
dismissed the plaintiffs' claims, rejecting their prayer for relief based on
the U.S. govt's decision to disavow the jurisdiction of the International
Court in the Nicaragua Case.  According to this case, the ICJ decision had
held that U.S. funding of the contras violated international law.  The U.S.
refused to adhere to that decision, challenging the court's authority.
    After the ICJ decision, President Reagan requested continued support for
the contras, and the Congress granted these requests, ostensibly in
violation of the ICJ's decision.  The case arose when private parties sought
relief on the theory that the continued funding by the U.S. of the contras
violated the ICJ decision.
    In the case, Judge Mikva identifies several theories of the effect of
international law in U.S. domestic courts (I am not an expert in this area,
so I [perhaps simplistically] report what Judge Mikva writes.  These views
are attributed to Professor Louis Henkin's work.
    The first is the "dualist" view, which apparently governs U.S. law (to
the chagrin of those holding the alternative "monist" view). This is the
quote that describes the "dualist" view as largely reflected in Supreme
Court interpretation of the relationship of international and American
domestic law (i.e., this is a quote of the discussion by Judge Mikva in the
Nicaragua case of that issue):
As the Supreme Court said

in the Head Money Cases, <=170> a treaty "depends for the enforcement of its

provisions on the interest and honor of the governments which are parties to
it.

If these fail, its infraction becomes the subject of international
negotiations

and reclamations . . . [but] with all this the judicial courts have nothing
to

do and can give no redress." <=24> 112 U.S. at 598. This conclusion reflects

the United States' adoption of a partly "dualist"--rather than strictly

"monist"--view of international and domestic law. See, e.g., Henkin, The

Constitution and United States Sovereignty: A Century of Chinese Exclusion

[**20]and Its Progeny, <=25> 100 Harv. L. Rev. 853, 864 (1987) (hereinafter

Henkin, United States Sovereignty). "Dualists view international law as a

discrete legal system [which] . . . operates wholly on an inter-nation
plane."  That is, under the dualist view, recourse to U.S. courts to enforce
international law norms is unavailable.  Enforcement comes on the
"inter-nation" plane within international adjudicatory/political forums.

    Judge Mikva's opinion asserts, further, that the law is clear that the
subsequent funding of the contras by Congress, constituting a legislative
act, supersedes any treaty obligation the U.S. might have had.  Such
legislative act repeals, in effect, the relevant portion of any inconsistent
treaty obligation, at least on an as applied basis.  According to Judge
Mikva,  there was no serious dispute about this issue.  Again, he refers to
the Head Money Cases.  The following is quote from the Mikva opionion:

In the <=18> Head Money Cases, 112 U.S. 580  (1884), shipping companies
protested payment of a tax on

immigrants they had transported to America, arguing that the tax violated

treaties of friendship with the immigrants' nations of origin. The Court
held

that, even if the statute requiring the tax was inconsistent with prior

treaties, it necessarily displaced any conflicting treaty provisions for

purposes of domestic law.

<=167>

A treaty, then, is a law of the land as an act of Congress is, whenever its

provisions prescribe a rule by which the rights of the private citizen or

subject may be determined. . . .

But even [so] . . . there is nothing in [a treaty] which makes it

irrepealable or unchangeable. The Constitution gives it no superiority over
an

act of Congress in this respect, which may be repealed or modified by an act
of

a later date. . . .

. . . .

In short, we are of the opinion that, so far as a treaty made by the United

States with any foreign nation can become the subject of judicial cognizance
in

the courts of this country, it is subject[**17] to such acts as Congress may

pass for its enforcement, modification, or repeal.



<=19> Id. at 598-99 ...

    This portion of Judge Mikva's position would seem, quite strongly, to
oppose the claim that a treaty necessarily restricts Congressional
authority. Judge Mikva, referencing Professor Henkin, stated that the U.S.
position was not inevitable, but apparently it is the law under relevant
Supreme Court precedent (at least according to the Mikva opinion, which is
again quoted below):



Notwithstanding this dualist influence, the subordination of American

treaties to inconsistent domestic statutes was not inevitable. It is
doubtful

that either our republican form of government or our constitution's
supremacy

clause requires this subordination of treaies. See, e.g., Henkin,
International

Law as Law in the United States, <=26> 82 Mich. L. Rev. 1555, 1565 n.34
(1984)

(noting that in several European countries treaties prevail over all

inconsistent statutes). Nevertheless, the "[Supreme] Court's jurisprudence
about

treaties inevitably reflects certain assumptions about the relation between

international law and United States law. . . ." Henkin, United States

Sovereignty, <=27> 100 Harv. L. Rev. at 870. Given that jurisprudence, we

cannot find--as a matter of domestic law--that congressional enactments
violate

prior treaties.

    Judge Mikva's opinion applies the foregoing analysis to customary norms
of international law as well as to treaties, although he asserts that the
law is not quite as definitively developed in that area.

  Neither a treaty nor a customary norm of international law necessarily,
however, constitutes a "peremptory norm" of international law (or "jus
cogens"), and the rule of partial repeal (described above) applies to
treaties generally and to customary norms of international law but not
necessarily to jus cogens.  Only some customary norms and some treaty
obligations can qualify as jus cogens.  The D.C. Circuit decision does not
decide the effect of jus cogens on domestic law -- i.e., whether the
principle adopted regarding treaties generally would apply to these most
fundamental principles of international law, the "peremptory norms." It
expressly leaves that issue unresolved, because it decides that the failure
on the part of the U.S. to adhere to a decision of the ICJ itself violates
jus cogens.  That is, the refusal of the U.S. to abide by an international
tribunal's judgment about the treaty obligations of the U.S. is not the
violation of a "peremptory norm" of international law.  The D.C. Circuit
accordingly dismissed the Nicaragua case.

    While Judge Mikva's opinion did not resolve the enforceability of jus
cogens in domestic U.S. courts, it did say some interesting things in
dictum.  The following is a quote:

Appellants argue that the rule requiring parties who have submitted to an

international court to abide by its judgment is not only a principle of

customary international [*940] law but has become a form of jus cogens.
Because

such peremptory norms are nonderogable and enjoy the highest status within

international law, appellants conclude that these norms are absolutely
binding

upon our government as a matter of domestic law as well. Indeed, appellants

assert that "the obligation stemming from the ICJ judgment . . . is such
that it

rises to the level of a constitutional obligation, which cannot be
overridden by

statute." Brief for Appellants at 32-33 (emphasis in original).

Appellants cite no authority for this assertion that a peremptory norm of

international law operates domestically as if it were a part of our

Constitution. So far as we know, no federal court has ever considered the

concept--much less the domestic effect--of jus cogens.

    From this case, then, the following seems to emerge:

1. Subsequently enacted legislation supersedes customary norms of
international law and, in general, treaties, serving in effect as a partial
repeal (on an as applied basis).

2. Despite its non-inevitability and some scholars' opposition, the
"dualist" vision governs U.S. domestic law, not the "monist" vision.  This
means that, in general, international treaty and customary obligations are
enforceable on an "inter-nation" basis but not necessarily in U.S. domestic
courts when in conflict with subsequently enacted federal legislation (and
possibly otherwise-valid executive action?)

3. Whether this set of general principles applies to "peremptory norms" or
jus cogens is left undecided by the Nicaragua case, but, at least as of the
time of that case, had no U.S. judicial authority behind it and the court
expressed some considerable dubiety about the concept.

4. It takes a lot to qualify as jus cogens, even if that broad
interpretation of jus cogens were to be accepted, the court's dubiety
nothwithstanding.  And ICJ judgments apparently do not qualify. The quote is
as follows:

We need not decide whether an ICJ judgment would restrict Congress' foreign

affairs power if that judgment were in fact a peremptory norm of
international

law. ICJ judgments simply do not meet the Vienna Convention's--or any other

authority's--definition of jus cogens.

    Based on the foregoing case, relied on by Professor Martin, I would have
to say that the  "Yes, that is what I am arguing" position asserted by
Professor Martin is not supported by the case that he relies on. The
following is the cite to the case:

COMMITTEE OF UNITED STATES CITIZENS LIVING IN NICARAGUA, et

al., APPELLANTS v. RONALD WILSON REAGAN, PRESIDENT OF THE

UNITED STATES, et al.

No. 87-5053

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA

CIRCUIT

859 F.2d 929; 1988 U.S. App. LEXIS 14362



November 13, 1987, Argued

October 14, 1988, Decided



Jim Blumstein




Prof. Volokh continues: "Rather, it's that a treaty -- and perhaps even
non-treaty norms, since he refers to international law that was *not
enacted* by the American people -- binds Congress indefinitely, much like a
constitutional amendment would bind it but without the inconvenient
requirement of a 2/3 vote of both houses and a 3/4 vote of the
legislatures."

Yes, that is what I am arguing.



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