have pretty much always felt entitled to make law for themselves.
As Virginia royal governor Alexander Spotswood complained 60 years
before the Declaration of Independence, "by their professions and
actions they [the colonials] seem to allow no jurisdiction, civil
or ecclesiastical, but what is established by laws of their
That position was vindicated by the Revolution and remained
unchallenged in any serious way for two centuries. Today, however,
there is an advanced and determined movement afoot that-through the
mechanisms of international law and super-national
institutions-does challenge the right of the United States to
define its own legal obligations as an independent and
Founding Generation, of course, knew international law and
recognized its importance in facilitating relations between
states. They readily accepted that, as an independent sovereign,
the United States was bound by international law to the same extent
as were the other "powers of the earth." This much was made clear
by the Declaration of Independence itself, which explained why it
had become "necessary for one people to dissolve the political
bands which have connected them with another and to assume among
the powers of the earth, the separate and equal station to which
the Laws of Nature and of Nature's God entitle them."
international law was considered, philosophically at least, to
be a species of Natural Law: the "law of nations." Such law could
be discovered or discerned in the practice of states, but it could
not be "made" in the manner of domestic or municipal legislation.
Then, as now, there was no global body politic and no global
legislature. Consequently, as was necessarily implied by the
inherent equality of every independent state, no state or league of
states had the right to establish the legal obligations of
any other state. All were equally competent to determine and
interpret international law for themselves. As a result, and
in no small part because international law did not purport to
govern any state's internal affairs, American democracy
flourished in this world despite being virtually alone in its
politics have, of course, been transformed many times since the
United States declared its independence. In the post-World War II
era, and especially since the Cold War ended, a widening swath of
world opinion has come to view international law and
institutions as inherently superior to national ones, as the very
font of legal and political legitimacy, and as a proper and
appropriate means of achieving change even within national borders.
The following quotation, from a German Foreign Ministry description
of the newly established International Criminal Court (ICC),
perfectly captures these attitudes:
It is a
monumental achievement in the field of international legal policy
that individuals who have transgressed their obligations to the
international community as a whole may be held responsible by an
independent international judicial institution. The ICC thus
symbolizes jurisdiction exercised on behalf of the community of
same time, it is also fair to say that, beyond a few academics and
activists, most Americans do not look to international
institutions or the "international community" for validation of
their government's actions or their own. One might well ask, in
response to the German Foreign Ministry, what is the "international
community"? Does it, for example, include China's Communist rulers
or the Persian Gulf's divine right monarchs? And what obligations,
exactly, might Americans have to them? Law, in the United States,
is made by our elected representatives, and the measure of its
legitimacy is the United States Constitution.
result, of course, international law has never been treated as a
rigid and imperative code of conduct by U.S. policymakers.
This attitude toward international law transcends political
ideology and party label. Nowhere was it better displayed than in
an exchange between then Secretary of State Madeleine Albright and
her British counterpart, Foreign Secretary Robin Cook, during the
run-up to NATO's 1999 intervention in Kosovo. As reported by Mrs.
Albright's spokesman James Rubin, when Cook explained that British
lawyers objected to the use of military force against Serbia
without U.N. approval, she replied simply "get new lawyers."
Albright's suggestion was perhaps undiplomatic, but it
revealed a firm grasp of the essential genius of international law:
It is a body of norms made by states for states, and its content
and application are almost always open to honest dispute.
Moreover, and most important of all, there is no global power or
authority with the ultimate right to establish the meaning of
international law for all. Every independent state has the legal
right-and the obligation-to consider and interpret
international law for itself. In other words, when questions
are asked about the meaning and requirements of international law,
the answers will probably, and properly, depend on who the lawyers
not mean that international law is illusory or that it can or
should be ignored by states in the day-to-day exercise of power. It
does mean, however, that international law is best viewed as a
collection of behavioral norms-some arising from custom and some
from express agreement, some more well-established and some less
so-that it is in the interest of states to honor. As Chief Justice
John Marshall explained in 1812 in describing one important aspect
of international law:
being composed of distinct sovereignties, possessing equal rights
and equal independence, whose mutual benefit is promoted by
intercourse with each other, and by an interchange of those good
offices which humanity dictates and its wants require, all
sovereigns have consented [to certain legal norms].
of course, is consent. Ultimately, the binding nature of
international law is a matter of the consent of sovereign states.
They can interpret that law in accordance with their understanding
and interests, they can attempt to change it, and they can choose
to ignore it-so long as they are prepared to accept the very real
political, economic, and even military consequences that may
result. This is the essence of sovereignty, which itself is the
basis and guarantor of self-government.
paper is designed as a short guide to international law for
American policymakers. The topic area is, of course, vast-even when
the inquiry is limited to what is commonly known as "public
international law" (the rules governing the conduct of states)
rather than international trade relations. As a result, the scope
of the material treated here is necessarily limited and selective.
An effort has, however, been made to discuss the most important
tenets of international law as it is today applicable to the United
States and to identify the current controversies over this
law's interpretation and application that most profoundly
divide the United States from its European Allies. In fact, the
understanding of how the world's nations are, or should be,
organized in their inter-relations and what role
international law and judicial institutions should play in
that great endeavor is one area where differences between the
United States and Europe are growing rapidly and are likely to
produce increasing future tension and diplomatic
Is International Law?
the most important and vexing question about international law is
whether or not it is "law" at all.
international law existed as a collection of principles and
practices-some based on custom and some based on treaties-that
govern the interactions of sovereign states. As a theoretical
matter, most commentators found the basis of this "law of nations"
in some form of Natural Law. As noted by Emmerich de Vattel in the
18th century, "We must then apply to nations the rules of the law
of nature, in order to discover what are their obligations,
and what are their laws; consequently, the law of nations is
originally no more than the law of nature applied to nations."
the actual practitioners of statecraft ever took the "divine" or
"natural" foundation of international law very seriously, at least
after the emergence of the "Westphalian" state system in 1648, is
Over time, most states have complied with these rules in accordance
with their needs and interests, always keeping in mind that
violations of accepted norms can carry significant consequences-up
to and including war. However, from the perspective of current
debates about the nature and role of international law as an
organizing principle, the most important characteristic of the
traditional international legal system is that there was no regular
means of judicial enforcement. All sovereign states are equal
in law, and none can claim the right to adjudicate-in a
definitive legal, as opposed to political, sense-the actions
this state of affairs has been one of the most important goals of
"progressives" and "internationalists" since before the First
World War. In particular, throughout the 20th century-and
especially after World War II-determined and sustained efforts were
made to establish some form of international judicial system under
which states would no longer be the ultimate arbiters of their own
international legal obligations. These efforts, which can fairly be
said to include the League of Nations (and its Permanent Court of
International Justice), the United Nations' International Court of
Justice (ICJ), and the International Criminal Court (ICC), have
always found favor with the United States at their inception but
have always been rejected in the end. (The United States, of
course, never joined the League, withdrew from the ICJ's compulsory
jurisdiction in 1986, and "de-signed" the ICC treaty in
reason is simple enough. A genuine system of international law,
comparable to domestic legal systems in its reach and authority,
would require a universally accepted institution entitled both to
adjudicate the conduct of states and, by extension, their
individual officials and citizens and to implement its judgments
through compulsory process with or without consent of the states
concerned. Such a universal authority, however, would be
fundamentally at odds with the founding principles of the
American Republic. It would require the American people to accept
that there is, in fact, a legal power that has legitimate
authority over them but is not accountable to them for its
this revolution in American beliefs and principles, U.S. officials
and diplomats should recall two basic points in their approach to
independent sovereign, the United States is fully entitled to
interpret international law for itself. The views of international
organizations, including the United Nations, other states, and
non-governmental organizations (NGOs) may be informative, but they
are not legally binding unless, and only to the extent that,
the United States agrees to be bound.
institution or individual invoking international law as the
measure of U.S. policy choices is only expounding an opinion of
what international law is or should be. That opinion may be
well or poorly informed, but it is not and cannot be
authoritative. There is no supreme international judicial body
with the inherent right to interpret international law for
the United States, like all other states, is bound by international
law; but, like all other states, it is also entitled to interpret
international law for itself. Whether the U.S. or any other state
has been reasonable in its interpretation is ultimately a
the U.S. Constitution Acknowledge International Law?
of various international norms, real or imagined, are quick to
assert that international law is part of American law and therefore
binding on the United States government. This is true as far as it
goes. There are, however, numerous caveats that must be taken into
account in determining the extent to which international law
considerations may, or must, inform American
outset, it is worth noting that this rule is a judge-made doctrine
that does not actually appear in the Constitution's text.
The Constitution does, of course, make treaties "the supreme Law of
the Land," although not as a means of empowering the courts to
oversee the formulation and execution of United States foreign
policy. The entire text of the Supremacy Clause makes its
purpose clear-the targets were the states and not the federal
Constitution, and the Laws of the United States which shall be made
in Pursuance thereof; and all Treaties made, or which shall be
made, under the Authority of the United States, shall be the
supreme Law of the Land; and the Judges in every State shall be
bound thereby, any Thing in the Constitution or Laws of any State
to the contrary notwithstanding.
Justice Joseph Story noted in his 1833 exposition of the
notorious, that treaty stipulations (especially those of the treaty
of peace of 1783) were grossly disregarded by the states under the
confederation. They were deemed by the states, not as laws, but
like requisitions, of mere moral obligation, and dependent upon the
good will of the states for their execution.
Supremacy Clause was designed to ensure that the United States
spoke with one voice on the international level and that the states
could not choose for themselves which federal treaties to honor and
which to ignore.
law notwithstanding, however, treaties remain subject to the
Constitution and to later federal action. Where there is a
conflict between the Constitution and a treaty, the Constitution
Moreover, treaties can be applied directly by the courts only to
the extent that they are "self-executing" (most are not) or have
been the subject of implementing legislation.
Finally, Congress can modify or eliminate a treaty's effect, at
least as a matter of domestic law, by a later statute.
American courts are bound to respect the plain meaning of such
a law even if treaty partners claim that this would violate U.S.
international obligations and the claim is accurate. In this
regard, however, it should again be emphasized that such a claim
may or may not be correct in any given case, since no other state,
group of states, or international institution is
entitled-absent specific U.S. consent-to interpret or adjudicate
American international law obligations. A difference of opinion
over the meaning of either a treaty or the requirements of
custom does not automatically amount to a violation of
international law by any of the parties involved.
addition, treaties are subject to a number of presidential actions.
The President is the "sole organ" of the United States in its
Although a President can "make" a treaty only after obtaining the
Senate's consent (by a two-thirds vote), he can terminate a treaty
(in accordance with its terms), or abrogate the agreement
entirely, on his own authority. Similarly, the President
can-as a lesser power-suspend American performance under a
particular agreement as one means of achieving U.S. policy goals.
Of course, all of these actions may be more or less controversial,
depending on the circumstances.
arguments have occasionally been advanced that the President must
obtain the consent of Congress-or at least the Senate-before
fundamentally changing U.S. treaty obligations. However, these
claims have not been successful, either with the executive branch
or before the courts. The leading case is Goldwater v.
where a group of Senators and members of the House of
Representatives sued to prevent President Jimmy Carter's
termination of the Mutual Defense Treaty of 1954 between the United
States and the Republic of China (Taiwan). The United States Court
of Appeals for the District of Columbia Circuit ruled that the
President, as "the constitutional representative of the United
States with respect to external affairs," was within his
constitutional authority to terminate this treaty.
For its part, the Supreme Court never reached the merits of this
question. It vacated the D.C. Circuit's opinion and ordered the
original complaint dismissed-an act strongly suggesting that this
and similar questions are not subject to judicial determination at
although international law is generally considered to be part of
American law, the United States, like other sovereign nations, can
derogate from the accepted rules. And, like other aspects of the
nation's foreign relations, the exercise of this authority falls-at
least in the first instance-to the President. The Supreme Court's
ruling in The Paquete Habana is not to the contrary,
although claims are sometimes made that it is. That case involved
the U.S. Navy's capture, during the Spanish-American War, of
fishing boats in Cuba's coastal waters. The Supreme Court was
called upon to determine whether these vessels were lawful captures
and concluded that they were not. Citing generally accepted rules
of international law suggesting that coastal fishermen were
not to be molested by belligerent forces, the Court ruled that the
boats were not lawful "prizes" of war. However, in doing so, it
specifically noted that "where there is no treaty and no
controlling executive or legislative act or judicial decision,
resort must be had to the customs and usages of civilized
The suggestion is clear that, had there been a formal decision
by the President (or by Congress through appropriate legislation)
to ignore the otherwise applicable international rule, the United
States courts would have been bound by that decision.
Is International Law "Made?"
law is made by and through the actions of states. This is true both
with respect to customary international law and, since a treaty's
meaning and continued efficacy greatly depend upon how the parties
interpret and apply its provisions in actual practice, with
respect to conventual or treaty law. However, for the sake of
clarity, these fundamental aspects of international law will be
International Law. Customary
international law grows out of more or less consistent state
practice over time. There is no hard and fast rule on how general a
practice must be to be considered customary or on how long it
must be followed. However, the "failure of a significant
number of important states to adopt a practice can prevent a
principle from becoming general customary law though it might
became 'particular customary law' for the participating states."
Moreover, a rule cannot be imposed on a state that has
connection, it also is important to note that what are sometimes
called the "sources" of international law are, in fact, merely
evidence of what the law may be. This includes such
authorities as (1) the decisions of international courts and
arbitral bodies, (2) the decisions of national courts ruling on
international law questions, (3) the writings of
international law commentators, and (4) the statements of
As the Supreme Court cautioned long ago with respect to the
writings of jurists and commentators, "Such works are resorted to
by judicial tribunals, not for the speculations of their
authors concerning what the law ought to be, but for trustworthy
evidence of what the law really is."
juris is a critical element in transforming an international
usage or practice into a binding norm of customary international
law. Unfortunately, opinio juris can be as elusive as the
Philosopher's Stone. The full term is opinio juris et
necessitatis, and it refers to a belief by states that the
practice at issue is legally required. In other words, however
longstanding and widespread a practice may be, it is binding only
if states comply out of a sense of legal obligation. As explained
by Ian Brownlie, "The sense of legal obligation, as opposed to
motives of courtesy, fairness, or morality," is "a necessary
ingredient" in turning general usage into a legal requirement.
from International Law Rules. States
can derogate from customary international law rules and from treaty
Such derogations are considered to be different from a
repudiation of the rule or treaty and must also be
distinguished from differences of opinion over the actual
requirements of international law or the proper interpretation of a
treaty. A genuine derogation involves one or more states
acknowledging the force and effect of a particular rule or
provision but nevertheless departing from it in limited
circumstances. As such, openly admitted derogation is relatively
rare. Most often, derogations involve states agreeing
(expressly or by implication) to depart from a general rule in
their own dealings with one another. These states generally
are not considered to have violated international
can also choose to derogate from an otherwise applicable
requirement on its own account. Depending on the rule in issue,
however, it will risk prompting a negative response from its treaty
partners or from the community of nations at large. Whether
such a state can be said to have violated international law by its
derogation, however, is almost always debatable. This is a function
of the manner in which international law is made-based on the
actual practice of states. Determining whether a particular state
has violated its international obligations or has merely set
out to promote and establish a new and different rule (or treaty
interpretation) that, in its view, may be superior requires augurs
of exceptional ability. As a result, and as a practical matter, the
question is very much a political one-ultimately resolved by
whether or not other states follow the new rule.
are, of course, certain rules of international law from which, it
is said, no derogation is permissible. These are generally
referred to as "jus cogens" or "peremptory norms of
international law." The application of either term to a
particular rule or practice should sound alarm bells for any
American diplomat, since the benefits of achieving jus
cogens status for a preferred rule are substantial. In fact,
the number of international norms that can honestly be
characterized as jus cogens-based on long and consistent
state practice-is small. Thus, the impermissibility of the
oceanic slave trade is jus cogens not merely because it has
been universally condemned, but also because the responsible
maritime nations have, at least since the mid-19th century, acted
seriously and effectively to suppress the activity under a
generally acknowledged claim of right.
like other aspects of international law, jus cogens is
subject to the development of new norms. As one important
commentator has explained, "They are rules of customary law which
cannot be set aside by treaty or acquiescence but only by the
formulation of a subsequent customary rule of contrary effect."
In short, the doctrine of jus cogens is subject to being
formed and reformed by the actual practice of states. As a result,
a principle that is claimed to be jus cogens but is
widely ignored is probably not a peremptory norm of international
law-however important the policy it may support or detestable
the practice it purports to forbid.
and Other International Agreements. On the
international level, any agreement between or among states can
properly be described as a treaty. These instruments can be
bilateral or multilateral and create binding legal obligations
for the states that become parties to any particular
agreement. Under international law, states are required to
comply with their treaty obligations. The principle pacta
sunt servanda ("keep your agreements") is often identified as
jus cogens, and with some justice. All things being equal,
over time, states have recognized the importance of compliance
with their treaty obligations, and-in the absence of special
circumstances-most at least attempt to do so. The unilateral
abrogation of a treaty without sufficient legal cause is considered
to be a violation of international law. Most recent treaties,
however, contain a termination or withdrawal clause permitting a
party to end its obligations by meeting a notice
treaties are, of
course, agreements between two states generally governing aspects
of their relationship to one another. The interpretation and
application of such treaties is a matter for the parties
alone, although the agreement may well provide for a type of
arbitration or adjudication in an international body-such as
the ICJ-in case of dispute.
an agreement between more than two states, and these types of
agreements have significantly increased in number and
importance over the past century. They include such basic
instruments as the United Nations Charter, the North Atlantic
Treaty, and the Geneva Conventions, as well as a whole array
of critical agreements governing all aspects of transnational
commerce and relations. Examples of such agreements include
the Vienna Convention on Consular Relations, the Convention for the
Unification of Certain Rules Relating to International
Transportation by Air (the "Warsaw Convention"), the
agreements establishing the World Trade Organization, and the
Berne Conventions for the Protection of Literary and Artistic
treaties usually establish a specific number of ratifications
necessary before the agreement will go into effect among the
parties (the Rome Statute of the International Criminal Court, for
example, required 60 countries to ratify before it went into
effect) and are often-although not always-open to accession by
states that may wish to become parties at a later time. Like more
recent bilateral treaties, multilateral treaties often provide for
a formal mechanism-submission to the ICJ-for resolution of
disagreements over the treaty's interpretation. States may or may
not accept these provisions upon ratification. It is important to
note, however, that there is no general principle of international
law suggesting that an interpretation favored by a significant
number of state parties to an agreement, even if this involves a
substantial majority or near unanimity, must be accepted by all
Purporting to Codify International Law. An
increasingly important "source" of international law is
treaties that purport to "codify" customary international law.
These instruments must be treated with extreme caution, since they
are very often much less than they appear. The codification of
international custom is, in any case, a speculative business.
States are far more likely to agree on general principles than
on detailed provisions. Moreover, and more to the point,
states are often much more willing to state a rule as
internationally binding than they are to apply it in
in certain areas, serious attempts have been made to reach
agreement not merely on principles, but on the details. Prime
examples here are the Vienna Convention on the Law of Treaties, the
Law of the Sea Treaty, and the 1977 Protocol I Additional to the
Geneva Conventions of August 12, 1949. All of these agreements
indisputably include some provisions that are, or can
legitimately be argued to be, customary international law.
Significantly, however, the United States has not ratified any of
these agreements, and it is not bound by them-except to the extent
that their provisions restate binding customary norms.
assessing the effect of these and similar documents on the
United States, it is critical to keep in mind that the mere fact
that some provisions of a treaty restate binding norms of customary
international law does not mean that the entire document
enjoys that status. Each provision must be judged independently to
determine whether there is sufficient state practice (that is,
actual observance based on a sense of legal obligation and in
relevant circumstances) to justify its identification as
binding custom. Thus, although Geneva Protocol I Additional
clearly restates certain customary rules, such as the rule against
deliberately targeting civilians, it also includes many provisions
that represent efforts to "move" the international law of armed
conflict in a particular direction-specifically toward
"privileging" guerrilla or irregular combatants. The United
States rejected this treaty on that very account and cannot now be
held to these provisions merely because other portions of
Protocol I are binding custom.
all agreements between or among states can accurately be labeled
"treaties" for international purposes, this is not the case with
respect to American constitutional law. The President can make
treaties for the United States only with the Senate's consent.
However, he can also enter certain "executive agreements," which
bind the United States internationally and also have the force and
effect of law on the domestic level.
The full extent of the President's authority in this area is
unclear, although executive agreements have generally been "of a
Obligations: Article 18 of the Vienna Convention on the Law of
Treaties. One of
the more vexing issues arises because of the practice, engaged
in by both Democrat and Republican Presidents, of signing
international agreements that have little or no chance of approval
by the Senate and therefore will never be ratified by the United
States. There are many reasons for this practice-it may appear
prudent at the time to exercise "leadership" on a particular
issue, or it may be an effort to drive international law in the
direction an Administration favors. Regrettably, this practice
often leads to claims that the United States is bound by a treaty
that it has not ratified, at least to the extent that it cannot
take action to defeat the treaty's "object and purpose."
is drawn from Article 18 of the Vienna Convention on the Law of
Treaties, which the United States has signed but has not ratified.
Although it is often stated that the Vienna Convention "is
largely a restatement of customary rules,"
emphasis must be placed in the word "largely." Article 18 is,
in fact, a rule characteristic of civil law legal systems.
Whether it can be applied to common law countries without
express consent is debatable. Moreover, its application by American
courts would raise significant constitutional issues, at least in
any instance where the President's own authority was insufficient
to bind the United States to a particular obligation, since treaty
obligations cannot be undertaken without the Senate's
case, in construing Article 18, it is important to note that
the obligation it imposes is emphatically not to comply with the
terms of a treaty before the instrument is ratified. Rather, it
requires only that a signatory "refrain from acts which would
defeat the object and purpose of a treaty"-suggesting that only
actions deliberately calculated to undermine a state's ability
eventually to comply, including and especially any uniquely
are forbidden. Nevertheless, the potential application of Article
18 must always be considered and is one very good reason why any
responsible President should not sign agreements he does not expect
to be able to ratify.
Is International Law Interpreted and Enforced?
are the ultimate authors of international law, they also are the
arbiters of its meaning. As suggested above, each nation, as an
independent sovereign, has an equal right to interpret
international law in general and its own international legal
obligations in particular. The interpretation of one state-or group
of states-is no better or worse than the interpretation of others.
This does not, of course, mean that states can interpret
international norms to a point where any actual obligation is
illusory. They must act, especially in construing their treaty
obligations, in good faith.
Moreover, all states must understand and accept that their
interpretation of international legal requirements may carry
consequences. As a legal matter, however, there is no state, group
of states, international organization, or judicial authority
with the paramount right-paraphrasing Chief Justice John Marshall's
description of the federal judiciary's power in Marbury v.
Madison-to say what the law is. There is no international
Judicial Institutions. That
said, there are numerous international judicial institutions
that, depending on the circumstances, may well be entitled to issue
binding judgments against states. The most important of these, of
course, is the ICJ. The authority of these courts, however, is
based on the consent of the states concerned-consent that can
be withdrawn in appropriate circumstances. Thus, for example,
the United States withdrew from the ICJ's "compulsory" jurisdiction
in 1986. As a result, it is subject to the ICJ's rulings only to
the extent that some independent treaty provision vests that court
with the power to adjudicate a dispute between the United
States and one of its treaty partners.
addition, with the exception of the ICC and other, ad hoc,
international criminal tribunals (which can issue orders directed
at individuals), international courts have no direct means of
enforcing their judgments. As a general rule, they must depend on
the voluntary compliance of the relevant states or seek the
assistance of appropriate political institutions. The extent to
which duly entered international judgments (where jurisdiction
was appropriate) may bind the courts of the United States remains
an open question-even though the issue was before the Supreme
Court, in the case of Medellin v. Dretke, in 2005.
involved the Vienna Convention on Consular Relations, a treaty to
which the United States is a party. Among other things, this treaty
requires that foreign nationals be permitted certain access to
their country's consular authorities in case of arrest in the
territory of another state party. A number of Mexican citizens have
been convicted of capital crimes in the United States without
having been granted this access-largely because it was unclear to
local authorities either that the individuals were foreign
citizens or that they wished the assistance of Mexican authorities.
In any case, the Vienna Consular Convention does vest the ICJ with
the authority to resolve disputes between parties, and pursuant to
this provision, Mexico successfully sued the United States in that
court. The ICJ issued its decision in 2004, determining that the
United States had violated the treaty and ordering it to
provide some means of reviewing and reconsidering the
convictions of the effected individuals.
Supreme Court accepted certiorari to determine the
extent to which this decision actually bound the federal and state
courts and whether the ICJ's interpretation of the Vienna Consular
Convention should, in any case, be given effect as a matter of
judicial comity. In the meantime, however, President George W.
Bush issued a memorandum indicating that the United States
would comply with the ICJ's order by having the state courts "'give
effect to the [ICJ] decision in accordance with general
principles of comity in cases filed by the 51 Mexican nationals
addressed in that decision.'"
In light of this determination by the President, the Supreme Court
dismissed the case without deciding whether U.S. courts must
implement properly entered ICJ decisions.
Political Institutions. Although
states are entitled to interpret their own international
obligations, all members of the United Nations have agreed to abide
by certain decisions of the United Nations Security Council-at
least when that body acts in accordance with its power under
Chapter VII of the U.N. Charter. Chapter VII vests the Security
Council with the authority to "determine the existence of any
threat to the peace" and to "decide what measures shall be
These measures can include diplomatic or economic sanctions,
up to and including the use of force. U.N. member states are
required to "join in affording mutual assistance in carrying out
the measures decided upon by the Security Council."
course, the Security Council is a political, not a judicial, body,
and it is far from clear whether- even exercising its Chapter VII
authority-it can articulate or establish a member state's legal
obligations. As a practical matter, however, the Security
Council's political decisions may well be sufficient to impose a
particular result on one or more states regardless of the legal
principles at issue-assuming that all of the Council's
permanent, veto-wielding members determine to act with a
sufficient level of force. Moreover, U.N. member states do have a
legal obligation to comply with properly entered Security Council
Chapter VII resolutions as a matter of treaty.
Means of Enforcing International Law. In
addition to international judicial and political institutions-both
relatively recent innovations- the more traditional methods of
enforcing international norms include diplomacy and force. It
is clearly the case that, over time, most disputes over the meaning
and application of international law have been resolved through
diplomatic means. This is preferable to other means, since it
generally preserves the dignity and sovereignty of the
relevant parties. Force, of course, has always been the
ultimate sanction, as it remains today. In the past, states have
often considered a violation of international legal
obligations to be a casus belli, and state practice suggests
that this remains true today- even in light of the U.N. Charter's
admonition that disputes be settled by peaceful means.
(Although practice over the past 50 years would also suggest that,
apart from actions taken in self-defense, states are expected to
seek U.N. assistance in resolving disputes before resorting to
armed force on their own account. At a minimum, this certainly
appears to be the Charter's fair import.)
of Alexander Spotswood to the Lords Commissioners of Trade and
Plantations, May 23, 1716, quoted in 2 Richard L. Morton,
Colonial Virginia: Westward Expansion and Prelude to Revolution
1710-1763, 413 (Chapel Hill 1960).
background on the ICC, see
(last updated in June 2005).
Rubin, "A Very Personal War," Financial Times, Sept. 30,
2000, p. 9.
Schooner Exchange v. M'Faddon, 11 U.S.
(7 Cranch) 116, 136 (1812).
an excellent presentation of the arguments as to why international
law is not "law," see Robert H. Bork, "The Limits of International
Law," The National Interest (Winter 1989/90).
de Vattel, The Law of Nations or Principles of the Law of Nature
Applied to the Conduct and Affairs of Nations and Sovereigns 3
(Luke White edition, Dublin 1792).
"Westphalian" system refers to the 1648 Peace of Westphalia, which
ended Europe's Thirty Years War. As part of this general
settlement, the Habsburg Holy Roman Emperor recognized the
effective independence of various German states. It is a useful
shorthand for the system of independent, sovereign, and legally
equal states which characterize the global political
organization-even though many of today's states had emerged as
independent entities long before 1648.
Vattel noted, "Nations being free, independent and equal, and
having a right to judge according to the dictates of
conscience, of what is to be done in order to fulfil its
duties; the effect of all this is, the producing, at least
externally, and among men, a perfect equality of rights between
nations, in the administration of their affairs, and the pursuit of
their pretensions, without regard to the intrinsic justice of their
conduct, of which others have no right to form a definitive
judgment; so that what is permitted in one, is also permitted in
the other, and they ought to be considered in human society as
having an equal right." Vattel, supra note 6, at
The Paquete Habana, 175 U.S. 677, 700 (1900) ("International
law is part of our law, and must be ascertained and administered by
the courts of justice of appropriate jurisdiction.").
Art. VI, cl. 2.
Story, Commentaries on the Constitution of the United States
686 (Carolina Academic Press ed. 1987) (introduction by Ronald D.
Rotunda & John E. Nowak). See also Sosa v.
Alvarez-Machain, 542 U.S. 692, 716 (2004) ("The Continental
Congress was hamstrung by its inability to 'cause infractions of
treaties, or of the law of nations to be punished.'").
Reid v. Covert, 354 U.S. 1 (1957); De Geofrey
v. Riggs, 133 U.S. 258 (1890).
Hamdi v. Rumsfeld, 316 F.3d 468-69 (4th Cir. 2003) (Courts
find a treaty self-executing only if the instrument, as a whole,
evinces the intent to create a private right of action), vacated
on other grounds, 542 U.S. 507 (2004).
Breard v. Greene, 523 U.S. 371 (1998). This does not,
of course, necessarily affect the United States' international
United States v. Curtiss-Wright Export Corp., 299
U.S. 304, 319-20 (1936).
F.2d 697 (D.C. Cir. 1979).
courts do, of course, regularly interpret and apply treaties in the
cases that come before them-so long as a treaty remains in force
and assuming it created a private right of action so as to support
a litigant's suit. Even in this context, however, it is well
settled that the executive branch's interpretation of a treaty-even
if not conclusive-is entitled to deference. See Sumitomo Shoji
America, Inc. v. Avagliano, 457 U.S. 176, 184-85 (1982)
("Although not conclusive, the meaning attributed to treaty
provisions by the Government agencies charged with their
negotiation and enforcement is entitled to great weight.").
Moreover, the meaning of treaties between states where the United
States is not a party also is considered to be a political question
and non-justiciable in the United States courts. See Joo v.
Japan, 413 F.3d 45 (D.C. Cir. 2005) (interpretation of
peace treaties between Japan and belligerents other than the United
States non-justiciable political question).
U.S. at 700 (emphasis added).
(Third) of the Foreign Relations Law of the United
States § 103
often is referred to as the rule of the "persistent objector."
However, it is unclear on what basis a rule can be imposed
regardless of whether a state has persistently objected, so long as
it has made clear its opposition at some point during the rule's
generally, Restatement (Third) of Foreign Relations Law,
supra note 20, § 103.
Paquete Habana, 175 U.S.
at 700. (The exceptions, of course, are the rulings of a court
acting within its own recognized jurisdiction.)
Brownlie, Principles of Public International Law 7 (4th ed.
 As a
result, certain treaties include specific provisions forbidding
derogation from particularly important provisions. For example,
Article 4(2) of the International Covenant on Civil and Political
Rights states that certain of its provisions (largely dealing with
critical human rights such as the right to life, due process, and
freedom of conscience) are non-derogable. Whether this section, or
similar provisions, are themselves subject to derogation is an open
Brownlie, supra note 24, at 513. As Brownlie also notes,
"more authority exists for the category of jus cogens than exists
for its particular content." Id. at 514-15.
e.g., Dames & Moore v. Regan, 453 U.S. 654 (1981)
("prior cases of this Court have also recognized that the President
does have some measure of power to enter into executive agreements
without obtaining the advice and consent of the
(Third) of Foreign Relations Law,
supra note 20, § 303, cmt. g.
& Son, Inc. v. Asiana Airlines, 214 F.3d
301, 308 (2d Cir. 2000).
Restatement (Third) of Foreign Relations Law, supra
note 20, § 312 note 6.
id., § 312 cmt. i.
 As noted
by Professor Brierly, "It is a truism to say that no international
interest is more vital than the observance of good faith between
states, and the 'sanctity' of treaties is a necessary corollary."
J. L. Brierly, The Law of Nations: An Introduction to the
International Law of Peace 331 (6th ed. 1963). That said, there
are many circumstances in which the rights and duties undertaken by
the parties to a treaty can and do change. Id.
 125 S.Ct.
Concerning Avena and Other Mexican Nationals (Mex. v.
I.C.J. No. 128 (Judgment of Mar. 31, 2004).
Charter, art. 39.
Charter, art. 49.
Charter, art. 2(3).
supra note 6, at 16 (emphasis in original).
Dep't of State Bull. 751 (1948) (remarks of Eleanor
Roosevelt, United States Ambassador to the United Nations). See
also Sosa v. Alvarez-Machain, 542 U.S. at 734 ("the
Declaration does not of its own force impose obligations as a
matter of international law.").
 542 U.S.
Nurnberg Trials, 6 F.R.D.
69, 107 (1946).
Remarks of Mark Grossman, Under Secretary of State for Political
Affairs, to the Center for Strategic and International Studies (May
 11 U.S.
(7 Cranch) 116 (1812).
Altmann, 541 U.S.
677, 688 (2004).
Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic
of the Congo v. Belgium), 2004
I.C.J. No. 121 (Judgment of Feb. 14, 2002).
Charter, art. 2(1).
Charter, art. 51.
Charter, art. 2(4). For a longer discussion of this issue, see
David B. Rivkin, Jr., Lee A. Casey, and Mark Delaquil, "War,
International Law and Sovereignty; Reevaluating the Rules of the
Game in a New Century: Preemption and the Law in the 21st Century,"
Chi. J. Int. L. 467 (2005).
Statement of President William J. Clinton Authorizing the Signing
of the Rome Statue of the International Criminal Court (Dec. 31,
 22 U.S.C.
Hamdi v. Rumsfeld, 542 U.S. 507 (2004); Ex parte
Quirin, 317 U.S. 1 (1942).
Remarks of Michael J. Matheson: The United States Position on the
Relation of Customary International Law to the 1977 Protocols
Additional to the 1949 Geneva Conventions, 2 Am. U. J. Int'l
419, 421-424 (1987).
of Ireland v. the United Kingdom, Series A, No. 25 (Judgment
of Jan. 18, 1978).
 For a
more detailed discussion of this point and related authorities, see
Lee A. Casey and David B. Rivkin, Jr., "The Dangerous Myth of
Universal Jurisdiction," in Robert H. Bork (ed.) "A Country I Do
Not Recognize" The Legal Assault on American Values 135, 138-42
Dunlap, Jr., "The Role of the Lawyer in War: It Ain't No TV Show,
JAGs and Modern Military Operations," 4 Chi. J. Int'l L.
479, 480 (2003).