International Law & the Supremacy Clause

[Francisco Forrest Martin]

Dear friends,

Some of you repeatedly have insisted that I have not provided case law
demonstrating that customary international law trump can trump federal
statutes.  Please read The Ship Rose in which a federal claims court held
that customary international law governing ship searches during war trumped
a federal statute authorizing U.S. ships to resist (1 Stat. L., 572).
Although the U.S. Supreme Court has not clearly held that customary
international law can trump a federal statute, in Macintosh it did state in
dicta that Congress could not violate international law -- even if it was
acting under its war powers authority.  That is a pretty powerful dicta
given that states of emergency usually allows nations to derogate from their
legal obligations.

I have been trying to figure out why there has been opposition expressed on
this listserv to the ideas that customary international law is federal law
and that it can trump federal statutes/executive orders.  I think that I
have figured it out in part.  I believe that some of my respondents may be
evidencing a fundamental conceptual confusion about the nature of customary
international law (as reflected in, e.g., the claim that customary
international law is federal common law and a bifurcation of treaty law and
customary international law).  Customary international law is not merely
customary law but mostly treaty law -- especially multilateral treaty law.
The term "law of nations" refers to all international law.  Indeed, the term
"customary international law" is a rather recent term.  My use of the term
"customary international law" was not to designed to highlight some kind of
separate corpus of international law but to recognize that certain treaties
have greater legal authority by virtue of their customary international
legal status.

The reason why customary international law norms, which are reflected, e.g.,
in treaties to which the U.S. is not a party, can still be binding on the
U.S. is because the U.S. did not express an objection to the norms during
their emergence. If the U.S. had, it would not be bound under the persistent
objector rule.  Of course, this issue is moot as a practical matter because
the U.S. rarely -- if ever -- has objected to an emerging customary
international legal norm and the U.S. always participates in the drafting of
global multilateral treaties (during which period the customary
international law norm emerges) and often signs the treaty.

As Prof. Adler correctly points out, the Supremacy Clause does not mention
the "law of nations" nor "customary international law."  Admittedly, I
always have wondered why the Framers did not use the term "law of nations"
in the Supremacy Clause.  However, the point is moot.  Numerous federal and
state courts have recognized that customary international law is federal
law.  Think of all the ATCA cases in which plaintiffs have successfully used
customary international law.  Think of the state cases in which customary
international law has been used to trump state law because it is recognized
as federal law.

Moreover, even though only the word "treaties" is used in the Supremacy
Clause, what do you think mostly constitutes customary international law?
Where do you find reflections of jus cogens norms?  Treaties.  The point
that I originally made about the Fourth Geneva Convention was that it was a
multilateral treaty reflecting customary international law.  This is hardly
controversial.  The controversial issue is whether customary international
law can trump federal statutes.  I recognize that there is divergent case
law on this.  The line of cases holding that customary international law
cannot trump federal statutes/executive orders is very recent and is based
on an overreaching interpretation of the vague dicta in the Paquete Habana.
The first case was from the 1970s (I recall), and it and subsequent cases
did not even address the earlier line of cases.  (Jordan Paust wrote a very
good article about this.)

But most importantly, as I also argued, it makes no sense legally and
operationally for other federal law (whether statute, executive order, or
bilateral treaty) to trump customary international law -- especially if it
reflects jus cogens.

I am particularly concerned about these issues as the U.S. begins war
preparations that will engage other allied nations.  Many of these nations
have international legal obligations that at first may not seem to be shared
by the U.S.  (e.g., the McCann and Satik rules under the European Convention
on Human Rights governing use of force, which reflect customary
international legal norms).  Nevertheless, practically speaking, the U.S.
will have to observe these rules in order to not create operational
difficulties.  And, legally speaking, the U.S. also is bound by these rules.
At this crucial point in America's survival, we cannot afford to adhere to
isolationist constitutional beliefs that not only have doubtful legal
validity but also can serve to undermine the U.S.' moral and legal position
that it can undertake military action -- a position that other nations
overwhelmingly have recognized in the last few days.

Just a couple of other specific points:

For Prof. Blumstein:  Your points are well taken.  I should have been
clearer about what I meant when I said you were wrong. Regarding the Mikva
dicta, what I should have said is that the Mikva dicta "lends support" to
the claim that jus cogens has equal authority to the constitution.

For Prof.Volokh:  I think that I may have misunderstood your
characterization of my claim regarding certain international legal norms as
being binding on the U.S. indefinitely.  No international legal norm is
binding on any state indefinitely.  Even jus cogens norms can be trumped by
a new jus cogens norm, according to the Vienna Convention on the Law of
Treaties.  Although you may not find the water sweet, I hope that you now
find it drinkable.

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

-----Original Message-----
From: Jonathan H. Adler <jha5 at PO.CWRU.EDU>
To: CONLAWPROF at listserv.ucla.edu <CONLAWPROF at listserv.ucla.edu>
Date: Friday, September 14, 2001 5:22 PM
Subject: Re: International Law & the Supremacy Clause


>Prof. Martin wrote:
>"there have been numerous federal court decisions (including a U.S. Supreme
>Court case) explicitly holding or stating in dicta that customary
>international law trumps federal statutes and executive orders."
>
>The problem is that Prof. Martin has *not* cited numerous court decisions
>*"explicitly holding"* that customary international law is the Supreme Law
>of the Land.  There is dicta that can be read to suggest as much, but it's
>just dicta.  And there is certainly language in other cases that could be
>read suggest the opposite, including the Mikva opinion referenced earlier
in
>this thread.  What Prof. Martin has yet to provide is a case in which an
>otherwise valid federal enactment was struck down by a federal court for
>violating customary international law.
>
>Even accepting Prof. Martin's interpretation of the relevant cases, this is
>a separate question from whether the *Constitution* adopts customary
>international law under the Supremacy Clause.  Prof. Martin originally
>claimed that "The framers of our Constitution accepted that international
>law that was not enacted by the American people still was binding law and
>recognized this by adopting the Supremacy Clause."  I responded that
nothing
>in the Constitution's text -- and certainly nothing in the Supremacy
>Clause -- supports that view.  Any support for that position must come from
>extra-textual sources.  Thus far, extra-textual sources providing no more
>than oblique support for the above claim is all that Prof. Martin has
>provided.  If I appear to reject Prof. Martin's claim "out of hand," it is
>because he has not given his claim much support.
>
>JHA
>
>-------
>Jonathan H. Adler
>Assistant Professor of Law
>Case Western Reserve University School of Law
>11075 East Boulevard
>Cleveland, OH 44106
>ph) 216-368-2535
>jha5 at po.cwru.edu