Can an earlier treaty (or

[Scarberry, Mark]

In response to Mark Tushnet's and Francisco Martin's latest posts:


If Professor Tushnet seems to have missed someone's point, it will nearly
always be because the point was not made clearly. That was the case here. I
did not make my point clearly, and I apologize for using language that was
more pointed than it should have been. (In fact, pointed language was not
called for at all.)


In addition, Professor Tushnet said that he was not responding to the
broader issues, and he was of course right that treaties sometimes give
individuals standing to sue. Thus his post was entirely correct on its own
terms.


In the context of the broader issues dividing Eugene, me, and others from
Professor Martin, the question is simply whether customary international law
trumps federal statutes. Thus the fact that treaties can give individuals
rights as against states who are parties to those treaties is not helpful to
Professor Martin's position. The material I quoted from the Restat. 2d of
Foreign Relations Law strongly supports my argument: if current
international law purports to give individuals standing to assert customary
international law as a trump over federal statutes, then it is a new genus,
and old court opinions referring to traditional international law are almost
completely inapposite.


In addition, Professor Tushnet raised the interesting question whether
judicial acceptance in the past of traditional international law implies
acceptance today of current international law, to the extent that the
current law grows organically from the traditional. I don't think Professor
Martin's view of international law is an organic growth from the traditional
law. It also seems to me that organic growth of international law can bring
it into conflict with the Constitution. Organic developments in other areas
of law have brought them into conflict with the Constitution, as least as
some on this list see it. Consider the organic development of the tort of
intentional infliction of emotional distress, the organic development of
antidiscrimination laws that could stifle legitimate associational freedoms,
and the organic development of workplace harassment law. (Or perhaps the
organic growth of exceptions to the Miranda rule...) In each it is the
"slippery slope" nature (or "camel's nose in the tent" nature) of future
organic growth that most worries some of us.


I have to disagree with Professor Martin's suggestion that I should have
cited the Restat. 3d of Foreign Relations Law (1987) rather than the Restat.
2d (1965). My post made the historical argument that traditional
international law--even as late as 1965--gave only very limited standing to
individuals. Thus I chose to quote from and to cite the earlier source.
Professor Martin's comment is helpful to dispel any impression my post may
have created that the Restat. 2d is the latest word from the ALI. But by
suggesting that we should not rely on the too-traditional Restat 2d,
Professor Martin helps to make the point that current international law--or
at least his view of it--is substantially different from the traditional
view.

Mark Scarberry
Pepperdine Univ. School of Law


-----Original Message-----
From: Mark Tushnet [mailto:tushnet at LAW.GEORGETOWN.EDU]
Sent: Tuesday, September 18, 2001 6:02 AM
To: CONLAWPROF at listserv.ucla.edu
Subject: Re: Can an earlier treaty (or


In response to Mark Scarberry's suggestion that I "miss[] the point," I
reprint the posting to which I was responding, which refers
unqualifiedly to "international law" (with one earlier reference to the
"new international law," which -- I would have thought, given the
generality of the subjects discussed -- included multilateral human
rights treaties in addition to "customary international law":  "The new
international law that provides individual rights is not the same genus
as that which was restricted to issues between and among states. It is
rather obviously a different matter (in terms of policy and effect on
sovereignty) to say (1) that international law binds us in some sense in
how we deal with other states--a matter that will in any event
almost never be justiciable, and to (2) that it binds us in justiciable
controversies among individuals and between individuals and the
government."  The "different matter" described in the last sentence is,
as a matter of simple syntax, this:  "international law [without
expressed qualification] binds us in justiciable controversies among
individuals."  And that, as Martin v. Hunter's Lessee (and of course
many other cases) shows, is true, contrary to the suggestion that it is
not.

In light of Professor Martin's argument that a great deal of the "new
international law" consists of multilateral treaties coupled with the
development of customary norms that bind all but "persistent objectors,"
I think precise statements of what's at stake and what's at issue are
necessary.  My own view is that as a matter of legal-realist prediction
Professor Martin's critics are right in the contention that the U.S.
courts would not enforce even a customary norm to which the U.S. had not
been a persistent objector in the face of a statute enacted after the
development of that norm, that the predictive question is harder but
probably comes out the same way with respect to a statute enacted prior
to the crystallization of the customary norm, and that the real
disagreement between Professor Martin and his critics is over the
jurisprudential significance of legal-realist predictions.