The Constitutional Power to Interpret International Law

Article excerpt

FEATURE CONTENTS

INTRODUCTION

  I. THE FOG OF INTERNATIONAL LAW
     A. The Trouble with Treaties
     B. Executive Agreements
     C. "Customary International Law"

 II. THE POWER TO SAY WHAT INTERNATIONAL LAW IS (FOR THE UNITED
     STATES)
     A. Congress's Power To Interpret and Apply International Law as
        Domestic U.S. Law
     B. The President's Power To Interpret and Enforce International
        Law
     C. The U.S. Judicial Power To Interpret International Law for the
        United States

III. THE RELEVANCE AND IRRELEVANCE OF INTERNATIONAL LAW TO UNITED
     STATES LAW AND THE WAR ON TERROR
     A. The Power To Initiate War-Jus ad Bellum
     B. The Power To Wage War-Jus in Bello

CONCLUSION

INTRODUCTION

"International Law" is all the rage. The subject is one of the hottest courses in the law school curriculum. And it is frequently the focus of great public attention, given events in the post-9/11 world. Has particular conduct by the United States "violated international law"? Is some contemplated--or completed--course of conduct "consistent with international law"? These are very much the questions of the day.

But what is the force of international law as a matter of the constitutional law of the United States? To what extent is international law, whatever its content and the method for making or discerning its content, binding as U.S. law? More pointedly, to what extent is international law not recognized as authoritative by the U.S. Constitution? Just as importantly, who determines the force and content of international law-who interprets and applies it, authoritatively, for the United States? May international bodies define legal norms for the United States? Is interpretation of international law's commands uniquely within the province of international tribunals? Or, quite the reverse, is it "emphatically the province and duty" of U.S. officials to say (for the United States) "what the law is," (1) including international law to whatever extent it is thought binding on American policymakers? If international law is, in some instance, in conflict with other commands or powers of the U.S. Constitution, how should such conflicting legal requirements and obligations be reconciled by courts and policymakers acting on behalf of the government of the United States?

These, too, are the vital questions of the day. Yet they are surprisingly undertheorized. These fundamental constitutional questions concerning international law are often shortchanged by international law scholarship, which frequently brushes by them, blithely assuming that the United States is bound by international law if that is what the regime of international law says, without giving serious attention to the acute U.S. constitutional problem posed by such an assumption. In part, this is attributable to the parochialism of academic legal specialties. "International Law" scholars form their own niche--clique, even--within the academy. Few international law scholars are also serious U.S. constitutional law scholars. The reverse is also the case to a large extent (though more and more constitutional law scholars have gravitated to interests in the field of international law). (2) The result is a kind of segregation of legal thinking. International law has become, ironically, intellectually isolationist and parochial, excluding critique from a U.S. constitutional law perspective and declining (in the main) to engage with it.

My thesis in this Essay is a straightforward one and, from the perspective of basic postulates of U.S. constitutional law, should be an obvious one: for the United States, the Constitution is supreme over international law. International law, to the extent it issues determinate commands or obligations in conflict with the U.S. Constitution, is unconstitutional. Where there exists a conflict between the U.S. Constitution's assignments of rights, powers, and duties, and the obligations of international law, U. …