Gonzales

[Francisco Martin]

Prof. Griffin wrote in relevant part:

> In addition, B&G argue that declarations of war
> are no longer used in international relations, int'l law.  

COMMENT: This may be a little misleading.  Human rights treaties require
their states-parties to deposit a statement of derogation during war (or
other states of emergency) with the respective secretary generals of the
intergovernmental organizations that have sponsored these treaties.  See,
e.g., ICCPR, art. 4 (3).  Such statements must be clear as to which
measures the state-party is undertaking that derogates from the particular
human right guarantee and the reasons for this derogation.  The
Constitution's Congressional War Powers Clause appears to operate in a
similar way in that a declaration of war gives notice to the President (a
sort of secretary general of an intergovernmental organization, viz., the
U.S.) and allows Congress to suspend habeas.  (Of course, the U.S. has
never deposited any derogation statement with the UN Secretary General in
violation of ICCPR art. 4 when it has violated numerous ICCPR guarantees. 
And, if the Constitution is a treaty that must be construed in conformity
with the U.S.' international legal obligations -- including ICCPR, art. 4
-- then there also is a constitutional infirmity by not depositing a
derogation statement with the UN Secretary General.)

Francisco Forrest Martin