War

[Volokh, Eugene]

    Prof. Martin's arguments are quite interesting, but I continue to be
unpersuaded by the notion that, once a multilateral treaty is ratified,
*U.S. law* bars Congress from abrogating it.  Certainly if that's so, that
would be a great argument for the Senate not to ratify virtually any
multilateral treaties.  But I don't believe that this reflects the current
understanding of U.S. law.

    As to Macintosh, it seems to me that the Court was simply acknowledging
that Congress usually felt itself bound as a matter of morals and
practicality to follow international law -- not that international law
(which, of course, consists of more than just treaties, and includes
provisions that no Senate had ever endorsed) prevails over contrary
Congressional enactments.  To support a result that so constrains
Congressional power, and constrains it in favor both of rules that were once
enacted by a very different Senate, and of rules that were never endorsed by
a Senate at all, would require much more than one ambiguous line from a case
that wasn't remotely about international law.

    By the way, this isn't just the view of some random lawprof from UCLA, a
lawprof who confessedly is not remotely an expert on international law; it's
also the position of the Restatement (Third) of Foreign Relations, sec. 115,
Reporter's Note 1, which I quote below.  Whether or not the cases that it
cites reach just results as a substantive matter, their underlying
sovereignty point -- that what one Senate has done a future Congress may
undo, as a matter of U.S. law -- strikes me as perfectly correct, and as the
best interpretation of our constitutional system.

1. Equality of international agreements and statutes. The principle that
United States treaties and federal statutes are of equal authority, so that
in case of inconsistency the later in time should prevail, was derived early
from the Supremacy Clause, Article VI of the Constitution. That article
declares the Constitution, the laws of the United States, and treaties to be
"the supreme Law of the Land"; the courts inferred that treaties are law
equal in authority to United States statutes. Head Money Cases, 112 U.S.
580, 5 S.Ct. 247, 28 L.Ed. 798 (1884); Whitney v. Robertson, 124 U.S. 190, 8
S.Ct. 456, 31 L.Ed. 386 (1888); The Chinese Exclusion Case, 130 U.S. 581,
599, 9 S.Ct. 623, 627, 32 L.Ed. 1068 (1889). Some have questioned that
inference as unwarranted. Moreover, the cases that declared that doctrine
dealt with conflict between a statute and a bilateral agreement; it has been
urged that the doctrine should not apply to inconsistency between a statute
and general international law established by a general multilateral treaty.
For that case at least, there have been suggestions that the United States
might better adopt the jurisprudence of some European countries, which gives
effect to an international agreement even in the face of subsequent
legislation. Compare Article 55 of the Constitution of France (1958) and
Article 94 of the Constitution of the Netherlands (1983). The doctrine
expressed in this section, however, is established, and a distinction
between bilateral and multilateral agreements has not taken root. See
Henkin, Foreign Affairs and the Constitution 163-64 (1972).
    The doctrine that laws and treaties are equal in authority and the later
prevails in case of conflict has been applied in several cases giving effect
to a later act of Congress. E.g., The Chinese Exclusion Case, supra; Whitney
v. Robertson, supra; Head Money Cases, supra; The Cherokee Tobacco, 78 U.S.
(11 Wall.) 616, 20 L.Ed. 227 (1871); Diggs v. Shultz, 470 F.2d 461 (D.C.
Cir. 1972), certiorari denied, 411 U.S. 931, 93 S.Ct. 1897, 36 L.Ed.2d 390
(1973) (upholding statute permitting imports contrary to United Nations
Security Council embargo on Rhodesian products). A later treaty was given
effect in the face of an earlier statute in Cook v. United States, 288 U.S.
102, 53 S.Ct. 305, 77 L.Ed. 641 (1933).

    Eugene

-----Original Message-----
From: Francisco Martin [mailto:ricenter at IGC.ORG]
Sent: Monday, November 04, 2002 12:58 PM
To: CONLAWPROF at listserv.ucla.edu
Subject: Re: War



Prof. Volokh writes:  "U.S. abrogation or refusal to enforce a treaty might
violate international law, and international tribunals may so conclude.  But
I'm unaware of any authority that says that *U.S. law* binds future
Congresses to abide by past treatises, unilateral or multilateral."

If you are looking for a case on point, I cannot give you one. (By the way,
what is a "unilateral" treaty?!)  The last-in-time rule was developed in the
19th century, when there were very few (if any) multilateral treaties. You
can (operationally speaking) apply a last-in-time rule to a bilateral
treaty.  However, It is more difficult -- if not impossible -- to apply the
rule to a multilateral treaty because the multilateral treaty serves to
create customary international law, and that is why there is quite a bit of
authority saying that Congress cannot violate customary international law.
See Paust, Rediscovering the Relationship Between Congressional Power and
International Law:  Exceptions to the Last in Time Rule and the Primacy of
Custom, 28 Va. J. Int'l L. 393 (1988) (listing numerous authorities).
Anyway, as a practical matter, please tell me how you would appl! y the
last-in-time rule to a multilateral human rights treaty (e.g., ICCPR)?

Prof. Volokh continues: "Under U.S. law, we are governed by ourselves -- as
represented in Congress -- and the Constitution.  We are not governed by
international law commentators, international courts, or the decisions of
past Congresses that may have ratified treaties."

We are governed by the Constitution that was created in large part to ensure
that the states complied with international law, much of which preceded the
formation of the U.S. A purpose of the Constitution was to ensure that the
U.S. could take its rightful place among the community of civilized nations
governed by international law. See Federalist Papers. To be able to do so,
it had to recognize that international law was binding on the U.S.. If it
did not obey international law, other nations could lawfully retaliate for
breaches of international law, and if other nations violated international
law, the U.S. could retaliate, hence the Congressional the authority to
grant letters of reprisal. You do not need to give Congress the authority to
grant letters of reprisal (US Const. art. I (8)(10)) if you do not think
that Congress is bound by international law.  ! You just wage war.  The
Constitution was not created in some sort of international legal vacuum. The
Framers (like the leaders of other nations) recognized that international
law bound civilized nations.  "U.S. exceptionalism" would have been unheard
of among the Framers.  Nations that did not observe international law (e.g.,
the Indians, see Declaration of Independence) did not receive the full
protection of international law.  Hence, the last-in-time rule was
articulated for the first time in regard to the Indian nations. See The
Cherokee Tobacco. Of course, it is always easier to use a constitutionally
dubious rule against a marginalized, disempowered group, so the rule was
next used against another marginalized, disempowered group (viz., Chinese
immigrants, see Head Money Cases) thereby establishing a stronger foothold
in constitutional jurisprudence .  So down the slippery slope we went to
where we are today where con! stitutional law professors try to
anachronistically impose an unworkable rule on the U.S.' international legal
obligations governing human rights.  It kind of reminds me of someone citing
Plessy v. Ferguson as good law before Brown.

Prof. Volokh continues:  "As to Macintosh, Prof. Martin is quite right to
say that its comments on international law are dictum -- but this doesn't
quite do the matter justice.  Macintosh was a case that had nothing to do
with international law; and the one clause that touches on international law
is an aside in a discussion of the breadth of the war power:  "From its very
nature the war power, when necessity calls for its exercise, tolerates no
qualifications or limitations, unless found in the Constitution or in
applicable principles of international law."  This is entirely consistent
with my view.  Naturally the war power is limited by international law --
from the perspective of other nations and of internati! onal bodies, and
perhaps as a matter of what Congress *ought to* do.  But nothing here says
that, as a matter of U.S. law, Congress *lacks the constitutional power* to
act in ways that violate international law."

Macintosh is NOT consistent with your view.  The dictum says "the war power
[i.e., under the Constitution] tolerates not qualifications or limitations,
unless found . . . in applicable principles of international law."  How does
that square with your view that Congress can constitutionally violate
international law (governing war)?!

Francisco Forrest Martin

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