* Fernandez-Roque v. Smith, 622 F.Supp. 887 (N.D. Ga. 1985), reviewed sub nom. Garcia-Mir v. Meese, 788 F.2d 1446 (11th Cir. 1986).

1 175 U.S. 677 (1900).

2 Id. at 700.

3 Garcia-Mirv. Meese, 788F.2d 1446 (11th Cir. 1986), reviewing Fernandez-Roque v. Smith, 622 F.Supp. 887 (N.D. Ga. 1985).

4 This issue has begun to be addressed in the literature. See, e.g., Glennon, , Raising The Paquete Habana: Is Violation of Customary International Law by the Executive Unconstitutional?, 80 Nw. U.L. Rev. 321 (1985)Google Scholar; Henkin, L., Foreign Affairs and the Constitution 460 n.61 (1972)Google Scholar; Henkin, , International Law as Law in the United States, 82 Mich. L. Rev. 1555, 1567–69 (1984)Google Scholar; Lobel, , The Limits of Constitutional Power: Conflicts between Foreign Policy and International Law, 71 Va. J. Int’l L. 1071 (1985)Google Scholar; Paust, , Is the President Bound by the Supreme Law of the Land?—Foreign Affairs and National Security Reexamined, 9 Hastings L.Q. 719 (1982)Google Scholar; Panel on Authority of the United States Executive to Interpret, Articulate or Violate the Norms of International Law, Apr. 11, 1986, 80 ASIL Proc. (forthcoming).

5 Professor Henkin points out that subsequent developments have made the classification of the United States as monist or dualist not a simple matter. Henkin, , The President and International Law, infra p. 930, 932 Google Scholar. Even if customary international law is law of the United States, its enforcement through court action is not guaranteed. A court must have subject matter jurisdiction and there must be a cause of action. See Tel-Oren v. Libyan Arab Republic, 726 F.2d 744 (D.C. Cir. 1984); and Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980).

6 U.S. Const, art. II, §3.

7 Some writers appear to take the view that custom may change without state practice through the adoption of United Nations resolutions or the taking of decisions at multilateral negotiations by consensus or other demonstrations of strong support. While these events may contribute substantially to the development of customary law, I doubt that they can effect a change in the absence of state practice. See Charney, , International Agreements and the Development of Customary International Law, 61 Wash. L. Rev. (forthcoming, 1986)Google Scholar.

8 It may be argued that there was a lacuna in customary international law due to the fact that previously there had been no positive state practice. According to this view, the United States did not violate a positive rule of international law when it claimed sovereign rights in the continental shelf. This view is hard to reconcile with the traditional views of the United Kingdom, the United States and other maritime states that coastal states were precluded by international law from claiming exclusive resource jurisdiction beyond the narrow territorial sea. There has been considerable debate over the question whether there can be a lacuna in international law.

9 That some rules of customary law are peremptory norms is not completely settled. See Restatement of Foreign Relations Law of the United States (Revised) §331 Comment e (Tent. Draft No. 6, vol. 2, 1985). Nor are the consequences of such a classification clear. While Article 53 of the Vienna Convention on the Law of Treaties, UN Doc. A/CONF.39/ 27 (1969), UNTS Regis. No. 18,232, reprinted in 63 AJIL 875 (1969), 8 ILM 679 (1969), declares that treaties in violation of peremptory norms are void, no authority has established how a normal rule of customary law becomes a peremptory norm. Even more difficult is the question, pertinent here, how a peremptory norm may be changed. In the absence of an international legislature, one may reasonably assume that the normal processes of change, including breach, are required. Unless the community’s views are consonant with those of the breaching state, that state will be faced with enormous resistance by the international community. See Charney, , The Persistent Objector Rule and the Development of Customary International Law, 56 Brit. Y.B. Int’l L. 1, 3 n.9 and 19 n.81 (1985)Google Scholar. Such resistance could include severe measures against the breaching state and, possibly, against the individual officials pursuant to universal criminal jurisdiction.

Some may take the view that, by definition, peremptory norms are fundamental, and thus unchangeable. The natural law theorists of the 16th and 17th centuries were also confident that they had identified the universal rules. Nevertheless, not all their rules have survived.

10 Lobel, supra note 4, at 1130 (and not even then in the case of peremptory norms, id. at 1142); and Glennon, supra note 4.

11 Garcia-Mir v. Meese, 788 F.2d at 1454.

12 Professor Glennon is correct in writing ( Glennon, , Can the President Do No Wrong?, infra p. 923, 928 Google Scholar) that rules of customary international law often do evolve slowly. But the focus of the instant issue is on the events that contribute to that evolution by providing the necessary state practice. Those events tend to be discrete and usually demand executive action within real time limits and an appreciation of specific factual circumstances more appropriate for executive consideration.

13 Professor Glennon argues, infra p. 926, that the power of the President to enter into sole executive agreements is limited to his plenary powers under the Constitution. I take a less rigid view and recognize the fluid nature of the relationship, as in Justice Jackson’s concurrence in the Steel Seizure case. In the absence of express and valid limitation by Congress, the President’s authority in this area is tested by “the imperatives of events and contemporary responsibilities rather than abstract theories of law.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 592, 637 (1952) (Jackson, J., concurring). It is the thesis of this paper that in the field of international law, in the absence of limiting constitutional provisions or valid congressional legislation, the practicalities require sole presidential authority.

Glennon asserts, infra p. 926, that the President’s power to terminate treaties that have received the advice and consent of the Senate is limited by the terms dictated by the Senate. The Restatement of Foreign Relations Law of the United States (Revised), supra note 9, §339 Comment a, suggests that this matter is not settled. The only case that might have raised the issue, Goldwater v. Carter, 444 U.S. 996 (1979), produced a result that appears to leave the matter very much in the hands of the President. Nor does Dames & Moore v. Regan, 453 U.S. 674 (1981), resolve this matter. Id. at 681–82.

14 175 U.S. at 700. Implicit in the use of the word “or” is the view that the President has authority in this area that he may exercise independently of Congress. As in all questions of the separation of powers between the President and Congress, “Presidential powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress.” Youngstown, 343 U.S. at 635 (Jackson, J., concurring). In the area of foreign affairs, the President’s authority is particularly strong, notwithstanding responsibilities held and exercised by Congress. As the Supreme Court has written:

[W]e are here dealing . . . with . . . the very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations—a power which does not require as a basis for its exercise an act of Congress, but which, of course, like every other governmental power, must be exercised in subordination to the applicable provisions of the Constitution. It is quite apparent that if, in the maintenance of our international relations, embarrassment—perhaps serious embarrassment—is to be avoided and success for our aims achieved, congressional legislation which is to be made effective through negotiation and inquiry within the international field must often accord to the President a degree of discretion and freedom from statutory restriction which would not be admissible were domestic affairs alone involved.

United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319–20 (1936). Thus, it is perfectly consistent with Congress’s power to define and punish offenses against the law of nations for the President to participate in the state practice that gives rise to that law of nations, especially prior to the enactment of a statute fixing the domestic law of the United States.

Implicit in the Court’s language is the view that customary international law is not federal common law. Notwithstanding Professor Glennon’s arguments, infra p. 925, the Supreme Court has not held that customary international law is included within federal common law. Such an inclusion is simply not possible. Common law is judge-made law. Customary international law is not judge-made law. The authority to develop customary international law rests with the international community, not with the courts. When the Supreme Court in The Paquete Habana allowed that a derogation from customary international law may be taken by a “controlling executive . . . act,” it precluded the possibility that customary international law would be considered to be federal common law, for an executive act cannot control federal common law.

15 Garcia-Mir v. Meese, 788 F.2d at 1454. Professor Henkin testified in support of the plaintiffs in the trial proceedings before the district court at the merits stage of Garcia-Mir. Fernandez-Roque v. Smith, 622 F.Supp. at 902. He appeared to me to support this view at the ASIL Panel, supra note 4. That support is now absent, infra pp. 934–37.

16 See supra note 5.

17 Lobel argues that the political branches have no power to violate peremptory norms of international law. Lobel, supra note 4, at 1130–31. But see supra note 9.

18 Professor Glennon argues, infra p. 928, that congressional approval should be required if the United States is to violate international law because a violation can give rise to adverse reactions by states. This argument shows a weakness in his fundamental assumptions about the role of Congress in international relations. Many perfectly legal actions by the executive branch in international relations may give rise to severe adverse international reactions. Should congressional approval be required in each such case?

Glennon would permit the President unilaterally to place the United States in the position of a persistent objector with respect to an evolving rule of customary international law. See infra p. 929. The record of states invoking this purported rule of international law demonstrates that the adverse impact on the objecting state will be as severe as if that state had, in fact, violated a rule of international law. Charney, supra note 9, at 11–16.

19 Professor Glennon, infra p. 928, suggests that my examples of the way international law develops actually support his view that before the President acts to violate a rule of international law, congressional approval is required. I disagree. The continental shelf example is decidedly on point. It illustrates the established practice with respect to presidential authority and the necessity for that authority. The Truman Continental Shelf Proclamation was issued unilaterally and without congressional approval, even though it violated customary international law when made. The authority of the President to do so went unchallenged. There is no question that the proclamation played a seminal role in the development of the regime of the continental shelf. Congressional legislation followed a long 8 years later, and then only after it became a serious issue in the 1952 presidential election and the regime of the continental shelf was established international law. If prior congressional approval had been required, the United States would not have been able to play the essential leadership role that it did, and its interests might not have been as well protected.

Glennon suggests, infra p. 927, that if the President alone could authorize acts in violation of international law, the resulting litigation would focus adverse publicity on the President. Such a focus would prevent the United States from dissembling or changing its policy. Assuming those options were appropriate, the contrary is more likely. Judicial inquiry would be extremely limited if the act of the President would be a sufficient defense. Furthermore, the President might maintain maximum flexibility for the United States by leaving the matter to subordinates. Thus, if challenged, he would have the options of denying the act and reversing policy. If actions by subordinates were legally sufficient or if legislation had been enacted, such options probably would be more difficult to effectuate.

20 See United States v. Nixon, 418 U.S. 683, 704, 708 (1974). The Court has been required to determine whether the act was actually taken by the President. Runkle v. United States, 122 U.S. 543, 557 (1887).

In Garcia-Mir, 788 F.2d at 1455, the Eleventh Circuit asserted, without analysis, that the President could delegate the authority to violate customary international law and had done so in the instant case. Unfortunately, the one supporting authority cited is not apposite. It concerned a legislative delegation of domestic authority, and did not involve matters of international law. Jean v. Nelson, 105 S.Ct. 2992, 2998 (1985) (delegation by Congress of its authority over incoming undocumented aliens to the Attorney General). I know of no statute that purports to delegate the instant authority from the President to a member of the executive branch.

21 See Dames & Moore, 453 U.S. at 682–83.

22 457 U.S. 731. 750 (1982).

23 Id. at 749–50 (citations omitted).

24 Harlow v. Fitzgerald, 457 U.S. 802 (1982).

25 Id.; and Butz v. Economou, 438 U.S. 478 (1978).

26 The immunities of government officials from personal liability and from injunctive relief involve closely related policy analyses. Supreme Court of Virginia v. Consumers Union, 446 U.S. 719(1980).

27 Professor Glennon, infra p. 927, relies on Brown v. United States, 12 U.S. (8 Cranch) 110 (1814), to support his position. In fact, that is the clearest case in which the President’s wide discretion in this area is acknowledged. Chief Justice Marshall addressed, in dicta, the question of the domestic legal effect of the violation of international law by the President. “This usage is a guide which the sovereign follows or abandons at his will; the rule, like other precepts of morality, of humanity, and even of wisdom, is addressed to the judgment of the sovereign; and although it cannot be disregarded by him, without obloquy, yet it may be disregarded.” Id. at 127 (emphasis added). Previously, Marshall had pointed out that the action taken in the instant case was that of the district attorney and not the President:

It does not appear that this seizure was made under any instructions from the president of the United States; nor is there any evidence of its having his sanction. . . . On the contrary, it is admitted, that the seizure was made by an individual, and the libel filed at his instance, by the district-attorney, who acted from his own impressions of what appertained to his duty.

Id. at 121–22. This fact appears to have been determinative of the Court’s decision to annul the sentence of condemnation.

Chief Justice Marshall’s words raise an additional issue. How much discretion does the President have to take actions that violate rules of customary international law? His plain words suggest that there are no limitations other than the risk of “obloquy.” Recently, the Supreme Court has stressed the particular influence such “obloquy” has in the caseof the President as distinguished from other officials. Nixon v. Fitzgerald, 457 U.S. at 758–59. Constitutional and statutory limitations on the President’s conduct also may be applicable.

28 In Hampton v. Mow Sun Wong, 426 U.S. 88, 104–05 (1976), the Court distinguished between the specific expertise and interests that the Civil Service Commission may invoke to justify a decision, and the interests of the broader national interest, which might justify actions by the President. As a consequence, the Commission’s determination to exclude all noncitizens from federal service was found to be invalid, notwithstanding the Commission’s argument that the exclusion strengthened the President’s hand in international treaty negotiations. Id. at 104, 116. The Court also distinguished between presidential decisions taken by an express command and those in which the President had acquiesced. Id. at 105, 110. See also the discussion of Brown v. United States, supra note 27.

* Of the Board of Editors.