U.S. Constitution and International law

[Francisco Martin]

Prof. Sellers wrote:
>    Perhaps we are straying now from the constitutional question.  The
> bottom line is that no international institutions exist that legitimately
> could (or even claim to) make better determinations of the content of
> international law than the procedures provided for in the U.S.
Constitution.

Whoa!  There are thousands of cases that have been adjudicated by at least
a couple of dozen international tribunals over the last 50 years.  That is
plenty international case law to give content to international law.  On the
other hand, past Congressional efforts to define international law
sometimes have been less than helpful.  My favorite example is when
Congress enacted legislation defining piracy by just saying that it was
defined according to the customary international law of 1820 -- and the
Supreme Court said that was fine!  See U.S. v. Smith. Boy, that's really
helpful!

Prof. Sellers continues:
>    The International Court of Justice (proposed by Prof. Martin as a
> possible source of decisive legal interpretation) is designed to address
> consensual arbitrations, and is ill-suited to settle questions of
> international peace and security.

The ICJ also has compulsory jurisdiction and has repeatedly addressed
questions of international peace and security.  See, e.g.,  Corfu Channel
Case, Nicaragua. v. US.

Prof. Sellers continues:
>  The ICJ in any case lacks the democratic
> legitimacy (and under its own statute the precedential power) to clarify
> the meaning of Article 2(4) for any future cases.

I guess it depends on what you mean by "democratic legitimacy."  ICJ judges
are elected by combined majorities of the UN General Assembly and Security
Council. U.S. federal court judges are only confirmed by the Senate.  I
guess that there are varying degrees and dimensions of democratic
legitimacy.

Francisco Forrest Martin