the camel's nose

Michael McConnell mcconnellm at LAW.UTAH.EDU
Tue Sep 18 11:01:12 PDT 2001

I am not a scholar of international law, and have found this discussion most
interesting. Thanks to Prof. Martin for his willingness to persist, and to
his critics for raising interesting problems. Two issues on which I would
like to hear more are:

(1) What is the content of jus cogens and how is it determined? In my own
nonspecialist mind, I thought "jus cogens" referred to norms that are so
fundamental and commonly held among civilized nations that the only
infractions are likely to be by rogue nations or horrific regimes. I find it
difficult to imagine a conflict between jus cogens, so understood, and a
statute enacted by Congress consistent with our Constitution. Wouldn't the
existence of such a statute constitute powerful evidence that the supposed
jus cogens norm is *not* universally enough shared to enjoy that status?
(Thus, even if Prof. Martin is correct that jus cogens norms trump statutes
in U.S. courts, why is this not a null set?)

(2) What is the status of norms that are articulated by an international
body (such as the International Court of Justice) in supposed
"interpretation" of a vaguely and uncontroversially worded treaty provision?
For example, suppose we sign a treaty agreeing to jurisdiction on the part
of an international body over "genocide," whereupon that body decides that
capital punishment constitutes genocide? Or suppose there is an emerging
customary international law norm against "genocide," to which we do not
object, whereupon an international body "interprets" the norm to forbid
capital punishment. In Professor Martin's view, the "monist" view, or any
other such view, would U.S. courts have the authority or the obligation in
such circumstances to rule that capital punishment is impermissible? (I am
not inviting discussion of the merits of the argument that capital
punishment is a form of genocide, but simply using this as an example of a
farfetched but not wholly inconceivable "interpretation" of a seemingly
uncontroversial norm, which would produce a conflict with domestic law.)

This reminds me of Marbury, in which Marshall uses the rhetoric of
enforcment of unambiguous constitutional provisions to establish the
principle of judicial review -- leading, of course, to the judicial power to
"interpret" in ways that sometimes seem indefensible. Is "jus cogens" the
camel's nose?

Michael W. McConnell
University of Utah College of Law
332 S. 1400 East Room 102
Salt Lake City, UT 84112

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