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Published online by Cambridge University Press: 27 February 2017
The preceding contributions to this Agora investigate the discernible trend in Supreme Court decisions of citing international legal materials in support of a conclusion about domestic constitutional law. Discussion of this rather limited use of international law—far short of the notion that “[i] nternational law is part of our law”—implicates a deeper set of questions about democracy, sovereignty, and sources of law: Is recourse to international sources a fundamental affront to notions of democratic self-rule, or is it the natural development of a maturing legal system—one moving toward new understandings of sovereignty and popular sovereignty appropriate to an increasingly interconnected web of transnational legal relations? I will argue here for the latter position, and from this perspective the occasional illustrative citation to international norms in the course of a conventional constitutional law opinion is an invitation to broader thought more than a fire bell in the night.
This draft was significantly improved by comments (many of which disagree with my thesis) from Barry Carter, Jack Goldsmith, Vicki Jackson, Michael Ramsey, Michael Seidman, Carlos Vázquez, and participants in workshops at Columbia Law School, Emory Law School, and the Georgetown University Law Center.
1 The Paquete Habana, 175 U.S. 677, 700 (1900).
2 The leading commentaries include Jordan, J. Paust, International Law as Law of the United States 1–66 (2d ed. 2003)Google Scholar; Curtis, A. Bradley & Jack, L. Goldsmith, Customary International Law as Federal Common Law: A Critique of the Modem Position, 110 Harv. L. Rev. 815 (1997)Google Scholar; Kelly, J. Patrick, The Twilight of Customary International Law, 40 Va. J. Int’l L. 449 (2000)Google Scholar; Harold Hongju, Koh, Commentary, Is International Law Really State Law? 111 Harv. L. Rev. 1824 (1998)Google Scholar; Stephens, Beth, The Law of Our Land: Customary International Law as Federal Law After Erie, 66 Fordham L. Rev. 393 (1997)Google Scholar; Phillip, R. Trimble, A Revisionist View of Customary International Law, 33 UCLA L. Rev. 665 (1986)Google Scholar; Weisburd, A. M., State Courts, Federal Courts, and International Cases, 20 Yale J. Int’l L. 1 (1995)Google Scholar; Ernest, A. Young, Sorting out the Debate over Customary International Law, 42 Va. J. Int’l L. 365 (2002).Google Scholar
3 Gerald Neuman has used this term to describe my position.
4 See, e.g., Paust, Koh, and Stephens, supra note 2.
5 See Bradley & Goldsmith, supra note 2.
6 I undertake that elaboration in a manuscript currently under preparation, “Practicing Internationalism: The Constitution and the Challenge of Transnational Law.”7 Human Rights Act, 1998, c. 42, reprinted in 38 ILM 464 (1999).
8 Restatement (Second) of the Foreign Relations Law of the United States §3 reporters’ note 2 (1965).
9 Restatement (Third) of the Foreign Relations Law of the United States §111 reporters’ note 3 (1987) [hereinafter Restatement (Third)].
10 Erie R.R. v. Tompkins, 304 U.S. 64 (1938).
11 Bradley & Goldsmith, supra note 2, at 870.
12 Bradley & Goldsmith, supra note 2; Kelly, supra note 2.
13 Bradley & Goldsmith, supra note 2, at 839; see Kelly, supra note 2; Simma, Bruno & Alston, Philip, The Sources of Human Bights Law: Custom, Jus Cogens, and General Principles, 1988–89 Aust L. Y. B. Int’l L. 82.Google Scholar
14 Anthony, D’Amato, Trashing Customary International Law, 81 AJIL 101 (1987).Google Scholar
15 Kelly, supra note 2, at 485.
16 Bradley & Goldsmith, supra note 2, at 868.
17 See Curtis, A. Bradley & Jack, L. Goldsmith, The Current Illegitimacy of International Human Rights Litigation, 66 Fordham L. Rev. 319, 328 (1997)Google Scholar; see also Simma & Alston, supra note 13, at 96–97. For a good target, see Beharry v. M.TA New York City Transit Auth., 183 F.Supp.2d 584 (S.D.N.Y. 2002), rev’d on other grounds, 329 F.3d 51 (2d Cir. 2003).
18 Bradley & Goldsmith, supra note 2, at 870; Bradley & Goldsmith, supra note 17, at 349–50.
19 Kelly, supra note 2, at 540.
20 Trimble, supra note 2, at 672.
21 See, e.g., The Rapid, 12 U.S. (8 Cranch) 155, 157 (1814); The Nereide, 13 U.S. (9 Cranch) 388, 423 (1815); The Santissima Trinidad, 20 U.S. (7 Wheat.) 283, 353 (1822); see also PAUST, supra note 2, at 7–12; Edwin, D. Dickinson, The Law of Nations as Part of the National Law of the United States (pt. II), 101 U. PA. L. Rev. 792, 803–16 (1953)Google Scholar; Jay, Stewart, The Status of the Law of Nations in Early American Law, 42 Vand. L. Rev. 819 (1989).Google Scholar
22 41 U.S. (16 Pet.) 1 (1842).
23 Koh, supra note 2; Gerald, L. Neuman, Sense and Nonsense About Customary International Law: A Response to Professors Bradley and Goldsmith, 66 Fordham L. Rev. 371 (1997).Google Scholar
24 Weisburd, supra note 2, at 50–51.
25 Illinois v. Milwaukee, 406 U.S. 91, 105 n.6 (1972); see Henry, J. Friendly, In Praise of Erie—And of the New Federal Common Law, 39 N.Y.U. L. Rev. 383 (1964)Google Scholar; Daniel, J. Meltzer, Customary International Law, Foreign Affairs, and Federal Common Law, 42 Va. J. Int’l L. 513 (2002).Google Scholar
26 Philip, C. Jessup, The Doctrine of Erie Railroad v. Tompkins Applied to International Law, 33 AJIL 740 (1939).Google Scholar
27 Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 425 (1964).
28 Justice Harlan wrote:
[W]e are constrained to make it clear that an issue concerned with a basic choice regarding the competence and function of the Judiciary and the National Executive in ordering our relationships . . . must be treated exclusively as an aspect of federal law. It seems fair to assume that the Court did not have rules like the act of state doctrine in mind when it decided Erie R Co. v. Tompkins. Soon thereafter, Professor Philip C. Jessup, now a judge of the International Court of Justice, recognized the potential dangers were Erie extended to legal problems affecting international relations. He cautioned that rules of international law should not be left to divergent and perhaps parochial state interpretations.
Id. at 425 (footnotes omitted).
29 See Meltzer, supra note 25.
30 Cf. Jessup, supra note 26, at 743 (“It would be as unsound as it would be unwise to make our state courts our ultimate authority for pronouncing the rules of international law.”).
31 Stephens, supra note 2, at 455 (“This slow and cumbersome process has produced an extremely short list of customary international law norms.”).
32 See Strossen, Nadine, Recent U.S. and International Judicial Protection of Individual Rights: A Comparative Legal Process Analysis and Proposed Synthesis, 41 Hastings L.J. 805 (1990)Google Scholar; Weisburd, supra note 2, at 13.
33 28 U.S.C. §1350 (2000) [hereinafter ATCA].
34 630 F.2d 876 (2d Cir. 1980).
35 Brief of the United States in Support of a Petition for Writ of Certiorari at 9, Sosa v. Alvarez-Machain (No. 03-339).
36 See, e.g., Flores v. S. Peru Copper Corp., 343 F.3d 140 (2d Cir. 2003) (rights to health and life are insufficiently definite to constitute CIL for purposes of ATCA). Of course, the scope of the statute is a matter of significant controversy. Some of the issues are likely to be addressed in Sosa v. Alvarez-Machain, cert, granted, 2003 WL 22070605 (U.S. Dec. 1, 2003) (No. 03-339).
37 Bradley & Goldsmith, supra note 2, at 852. This statement, it should be noted, appears to read Indian tribes out of the U.S. constitutional system.
38 Weisburd, supra note 2.
39 Young, supra note 2.
40 Id. at 468 (emphasis supplied).
41 Weisburd, supra note 2, at 48-49.
42 Restatement (Second) of Conflict of Laws §6 (1971).
43 Meltzer, supra note 23, at 527-31; Michael, D. Ramsey, International Law as Non-preemptive Federal Law, 42 Va. J . Int’l L. 555 (2002).Google Scholar
44 Ramsey, supra note 43.
45 Id. at 578; Michael, D. Ramsey, International Law as Part of Our Law: A Constitutional Perspective, 29 Pepperdine L. Rev. 187, 196–97 (2001).Google Scholar
46 See Weisburd, supra note 2, at 31 (stating that “a federal court’s application of a body of law does not establish that the body of law is part of the law of the United States”).
47 In this I agree with Young and Weisburd that CIL is neither state nor federal law. See Henkin, Louis, International Law as Law in the United States, 82 Mich. L. Rev. 1555 (1984)CrossRefGoogle Scholar; Ramsey, supra note 43, at 196 (framers saw international law as “a body of law arising outside the United States to which the United States owed an obligation”).
48 See Francisco Forrest, Martin, Challenging Human Rights Violations, ch. 4 (2001).Google Scholar
49 CIL norms might be considered in a federal court case challenging state practices on constitutional grounds, not because CIL claims “arise under” federal law, but because—to the extent that such claims would be recognized under state law—they could fall within the court’s pendent jurisdiction. See Chemerinsky, Erwin, federal jurisdiction 330–35 (4th ed. 2003).Google Scholar
50 The Paquete Habana, 175 U.S. 677, 700 (1900).
51 This appears to be the Department of justice’s understanding of The Paquete Habana as well. In a brief arguing for a narrow reading of the ATCA, the government nonetheless stated: “In certain areas, of course, a court in connection with a matter already properly pending before it, may properly look to international law to furnish a rule of decision.” The brief goes on to note that international law norms may be consulted “only in the absence of a ‘controlling executive or legislative act.’” Brief for the United States as Amicus Curiae at 18, Doe v. Unocal Corp. (9th Cir. 2002) (Nos. 00-56603, 00-56628) (quoting The Paquete Habana, 175 U.S. 677, 700 (1900)).
52 Weisburd, supra note 2, at 28-41.
53 See Lipcon v. Underwriters at Lloyd’s, London, 148 F.3d 1285 (11th Cir. 1998).
54 See note 21 supra.
55 See Fitzpatrick, Joan, The Relevance of Customary International Norms to the Death Penalty in the United States, 25 Ga. J. Int’l & Comp. L. 165 (1995).Google Scholar
56 Article III would extend this far, see Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480 (1983); but according to usual understandings of the statutory “arising under” jurisdiction, the law under which the cause of action arises (here, the CIL norm) must be federal law. This, of course, is not a problem for the internationalists. See Restatement (THIRD), supra note 9, §111 cmt. e, reporters’ note 4.
57 Murray v. The Schooner Charming Betsy, 6 U.S. (2 Cranch) 64 (1804).
58 See Julian, G. Ku, Customary International Law in State Courts, 42 Va. J. Int’l L. 265, 291–333 (2002)Google Scholar (detailing state court application and development of CIL).
59 Section 9 of the Judiciary Act of 1789, 1 Stat. 73, provided:
That the district courts shall have, exclusively of the courts of the several States, cognizance of all crimes and offences that shall be cognizable under the authority of the United States, committed within their respective districts, or upon the high seas; where no other punishment than whipping, not exceeding thirty stripes, a fine not exceeding one hundred dollars, or a term of imprisonment not exceeding six months, is to be inflicted; and shall also have exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction, including all seizures under laws of impost, navigation or trade of the United States, where the seizures are made, on waters which are navigable from the sea by vessels of ten or more tons burthen, within their respective districts as well as upon the high seas; saving to suitors, in all cases, the right of a common law remedy, where the common law is competent to give it; and shall also have exclusive original cognizance of all seizures on land, or other waters than as aforesaid, made, and of all suits for penalties and forfeitures incurred, under the laws of the United States. And shall also have cognizance, concurrent with the courts of the several States, or the circuit courts, as the case may be, of all causes where an alien sues for a tort only in violation of the law of nations or a treaty of the United States. . . . And shall also have jurisdiction exclusively of the courts of the several States, of all suits against consuls or vice-consuls, except for offences above the description aforesaid. And the trial of issues in fact, in the district courts, in all causes except civil causes of admiralty and maritime jurisdiction, shall be by jury.
60 See Meltzer, supra note 25, at 536-51. Young reports that he is “willing to contemplate the development of federal common law rules to limit state choice of law in cases raising international issues.” Young, supra note 2, at 508–09.
61 See also Meltzer, supra note 25, at 551.
62 See Philippines v. Marcos, 806 F.2d 344 (2d Cir. 1986) (federal question jurisdiction over action having important foreign policy implications; claim based on common law theory of constructive trust and equitable lien).
63 Cases raising some human rights claims—such as detention standards—may be an example.
64 See Henkin, supra note 47, at 1566. Professor Henkin’s line of reasoning differs from mat offered here. His view is that because CIL is federal law under the Supremacy Clause, it is entitled to the same treatment accorded treaties vis-á-vis federal statutes—i.e., a last-in-time rule.
65 In reality, adopting this view would push us ahead to the past—it was surely the understanding and practice in the early years of the Republic. See Young, supra note 2.
66 See Lipcon v. Under writers at Lloyd’s, London, 148 F.3d 1285 (11th Cir. 1998).
67 See Bradley & Goldsmith, supra note 2.
68 Because Congress would retain power to revise or overrule a federal court’s CIL decision, it would be hard to conclude that the statute would undermine fundamental notions of popular sovereignty. Cf. Goldsworthy, Jeffrey, Judicial Review, Legislative Override, and Democracy, 38 Wake Forest L. Rev. 451 (2003)Google Scholar (existence of legislative override of judicial constitutional decisions removes democracy objection to judicial review); Tushnet, Mark, Transnational/Domestic Constitutional Law, Loy. L.A. L. Rev. (forthcoming 2003)Google Scholar (“[W]henever a U.S. decision-maker invokes a non-U.S. rule of decision, the decision is as fully domestic as any other decision the decision-maker makes. There is, as far, as I can tell, no surrender of sovereignty whatever.”).
69 The proposal would sweep more broadly than ATCA, which is limited to tort actions brought by noncitizens. 70 Human Rights Act, supra note 7.
71 Cf. Hayburn’s Case, 2 U.S. (2 Dall.) 409 (1792) (federal courts lacked power to issue nonbinding opinions on benefit amounts owed to veterans of the Revolutionary War).
72 Henry, M. Hart Jr. & Wechsler, Herbert, The Federal Courts and the Federal System 102 (Richard, H. Fallon, Daniel, J. Meltzer, & David, L. Shapiro eds., 5th ed. 2003)Google Scholar (noting that Supreme Court has assumed that Congress can employ non-Article III tribunals to make recommendations to Congress whether to pay claims against the United States).
73 Under the HRA, a declaration of incompatibility “does not affect the validity, continuing operation or enforcement of the provision” and “is not binding on the parties.” Human Rights Act, supra note 7, §4 (6).
74 E.g., Bellinger v. Bellinger, [2003] 2 A.C. 467 (H.L.) (failure of UK marriage statute to recognize transsexual marriage is incompatible with Articles 8 and 12 of the European Convention). It is unlikely that the result in Bellinger would be reached as a matter of CIL.
75 They cite Bradley & Goldsmith, supra note 2, and Trimble, supra note 2, to this effect. See generally Barr, Bob, Protecting National Sovereignty in an Era of International Meddling: An Increasingly Difficult Task, 39 Harv. J. on Legis. 299 (2002).Google Scholar
76 Although internationalists would no doubt object to the limited scope of the statute—i.e., that it does not purport to lay down federal rules for state courts.
77 Rights Brought Home: the Human Rights Bill §1.14 (Oct. 1997), available at <http://www.archive.officialdocuments.co.uk/document/hoffice/rights/rights.htm>..>Google Scholar
78 See Stephens, supra note 2; Restatement (Third), supra note 9, for a rather short list.
79 See communication from the United States to the Secretary-General of the United Nations (May 6, 2002), at <http://www.state.gOv/r/pa/prs/ps/2002/9968.htm>.
80 Kyoto Protocol to the United Nations Framework Convention on Climate Change, Dec. 10, 1997, 37ILM 22 (1998).
81 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on Their Destruction, Sept. 18, 1997, 36 ILM 1507 (1997).
82 It is possible that neither the American people nor the government wants to move beyond the box, preferring to reject the trend in international law and policy by resolutely insisting on old forms of conventions and customary law. It is hard to see how this approach serves U.S. interests; our constitutional structures will ultimately have to adapt to the new global order of the twenty-first century, much as they did to the new domestic order of the twentieth century.
83 Think of this as a reverse-Bricker amendment.
84 It hardly needs saying that no nation-state is hermetically sealed and that with remarkable frequency countries enter into binding international arrangements that impose norms fashioned outside the box. Stephen Krasner has persuasively argued that the idea of “Westphalian sovereignty” (by which he means “political organization based on the exclusion of external actors from authority structures within a given territory,” Stephen, D. Krasner, Sovereignty: Organized Hypocrisy 3 (1999)Google Scholar) ill fits past and current relations of states. It might be objected that most of the international norms that have domestic effect in the United States do so because of a positive act by the federal branches—such as the ratification of a treaty or the creation of a cause of action for noncitizens whose human rights have been violated. That is, norms emanating from international agreements that the United States has ratified work no intrusion on popular sovereignty because they in fact represent acts of sovereignty, much as we understand that an aspect of personal liberty is the power to enter into a contract that limits one’s freedom to act. But this story becomes attenuated once international organizations and processes evolve beyond institutions governed by rules of unanimity or adopt “evolutive” approaches to their governing documents that are beyond the unilateral power of a member of the convention to change. Nor does the consent theory help to establish the legitimacy of CIL, except when nonconforming state practice helps defeat the crystallization of a norm. Furthermore, on a practical level, U.S. sovereignty itself depends on the actions of foreign states—their willingness to trade, to accept U.S. dollars, to conclude mutual defense treaties, and not to undertake military action against the United States. This “external” sovereignty, based as it is on a norm of noninterference, depends upon the existence and well functioning of an international regime of states with the power to recognize those entities whose sovereignty must be respected and to maintain order within the regime.
85 Yasemin Nuhoglu, Soysal, Limits of Citizenship: Migrants and Post-National Membership in Europe (1994).Google Scholar
86 Maccormick, Seeneil, Questioning Sovereignty: Law, State, and Nation in the European Commonwealth 102–04 (1999).Google Scholar
87 See id. at 106-21 for an insightful discussion of these issues.
88 That is, it is better to have the matter authoritatively settled than settled right.
89 Aleinikoff, T. Alexander, Semblances of Sovereignty: the Constitution, the State and American Citizenship (2002)CrossRefGoogle Scholar (arguing for more flexible notions of sovereignty and membership on the domestic level).
90 Pace John Hart Ely’s defense of democracy-enhancing judicial review. John Hart, Ely, Democracy and Distrust (19801). Google Scholar
91 Note that this argument is distinct from the claim that the structure of the United States government is to a large degree not majoritarian (consider here the process for amending the Constitution, the equal representation of the states in the Senate, and the electoral college).
92 As Michael Seidman has commented to me, invocation of the word “we” is problematic here. The reformulation of the concept of popular sovereignty suggested in the text may still significantly overstate the influence that ordinary citizens have on the formulation of legal norms and policies in the United States.
93 Bradley & Goldsmith, supra note 2, at 870 (CIL is not a source of federal law “in the absence of federal political branch authorization”).
94 Other mediating devices, discussed in Aleinikoff, supra note 6, could include constitutional and due process checks on lawmaking by supranational organizations and the last-in-time rule.
95 Roger, P. Alford, Misusing International Sources to Interpret the Constitution, 98 AJIL 57, 58 (2004)Google Scholar (“Using global opinions as a means of constitutional interpretation dramatically undermines sovereignty “) (contribution to this Agora).
96 Lawrence v. Texas, 123 S.Ct. 2472, 2481 (2003); Grutter v. Bollinger, 539 U.S. 306, 342–43 (2003) (Ginsburg, J., concurring).
97 John, O. McGinnis & Mark, L. Movsesian, Commentary, The World Trade Organization Constitution, 114 Harv. L. Rev. 511 (2000).Google Scholar
98 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature Dec. 10, 1984, 1465 UNTS 85; see Torture Victim Protection Act of 1991, Pub. L. No. 102-256, 106 Stat. 93 (codified at 28 U.S.C. §1350 note (2000)).
99 Stephen, M. Griffin, Constitutional Theory Transformed, 108 Yale L.J. 2115 (1999).Google Scholar
100 ori Fisler, Damrosch, “Sovereignty “and International Organizations, 3 U.C. Davis J. Int’l L. & Pol’y 159 (1997).Google Scholar
101 See Michael, J. Perry, Protecting Human Rights in a Democracy: What Role for the Courts? 38 Wake Forest L. Rev. 635 (2003)Google Scholar (UK legal system is one of judicial ultimacy, not penultimacy).
102 R.v.Sec’y of State for Transp., « parte Factortame Ltd. (No. 1), [1990] 2A.C.85 (H.L.).
