War

[msellers]

The American view of the ICCPR has been that it does not prohibit anything
that was not already prohibited by the U.S. Bill of Rights.

  >===== Original Message From Discussion list for con law professors
<CONLAWPROF at listserv.ucla.edu> =====
>    If the question is whether Congress has the power to enact a statute
>that violates the ICCPR -- assuming that the ICCPR is binding in the first
>place (I forget whether it's self-executing or not) -- then the answer is,
>yes of course, so long as it doesn't violate the Bill of Rights or other
>rights provisions.
>
>    Congress is bound by the Bill of Rights.  It's bound by other parts of
>the Constitution.  It's not bound by "international law" as developed by
>people and organizations that have no constitutional status.  And it's not
>bound by the judgments of a previous Senate, if it chooses to override them.
>Maybe Congress *shouldn't*, as a matter of morality, practicality, or
>international relations, enact laws that override the ICCPR.  But it has the
>constitutional power to do so under U.S. law.
>
>    As to Macintosh, well, I invite other list members to look at it
>themselves, and decide how much weight it has in support of Prof. Martin's
>position.
>
>    Finally, if Prof. Martin has some precedents that support his position,
>I'd love to hear about them.  Absent them, I would rather go with the view
>that I've expressed -- which, as I understand it, is the generally accepted
>sense under U.S. constitutional law -- even though he says that it "cannot
>be maintained as a practical matter."
>
>    Eugene
>
>-----Original Message-----
>From: Francisco Martin [mailto:ricenter at IGC.ORG]
>Sent: Monday, November 04, 2002 2:27 PM
>To: CONLAWPROF at listserv.ucla.edu
>Subject: Re: War
>
>
>
>The Restatement was written in 1985, and Lou Henkin's (the rapporteur)
>argument that a distinction between bilateral and multilateral treaties has
>not taken root is based on his even earlier 1972 work.  The U.S.'
>international legal obligations regime has changed quite a bit since then.
>His argument cannot be maintained as a practical matter.  As I asked Prof.
>Volokh previously, how would he (or anyone else) apply the last-in-time rule
>to, e.g., the ICCPR?  (Let's say that Congress passed a law last year
>nullifying the right to liberty guaranteed by the ICCPR.)
>
>As for your interpretation of Macintosh, Gee! are you overreaching!
>
>
>Francisco Forrest Martin
>President
>Rights International, The Center for International Human Rights Law, Inc.
> <mailto:> "><ricenter at rightsinternational.org>
>
>
>
>----- Original Message -----
>From: Volokh, Eugene <mailto:VOLOKH at MAIL.LAW.UCLA.EDU>
>To: CONLAWPROF at listserv.ucla.edu <mailto:CONLAWPROF at listserv.ucla.edu>
>Sent: 11/4/2002 5:01:39 PM
>Subject: Re: War
>
>
>    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 agree! ment; 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. Rober! tson, 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 c! on! 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