I. THE TYPES AND SOURCES OF INTERNATIONAL LAW
Statute of the International Court of Justice: (Article 38) The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: (a) international conventions, whether general or particular, establishing rules expressly recognized by contesting states;
(b) international custom, as evidence of a general practice accepted as law; Determining custom: The general practice of states (how the state behave historically). Accepted as law: (Involves some element of mass psychology) “opinio juris”; the idea that there is come consensus as to what is accepted as law.
(c) the general principles of law recognized by civilized nations; The domestic legal principles of nations generally accepted so that they may be applied on the international plane.
EX: due process, notice…
(d) … judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. (secondary sources) Hints that there is some kind of priority among these sources. Judicial decisions might be useful in determining content of international law. Teachings of highly-qualified professors and research assistants. A. RULES OF CONVENTIONAL INTERNATIONAL LAW
i. U.S. PRACTICES AND CONSTITUTIONAL PRINCIPLES GOVERNING TREATIES Three Elements of Treaties Becoming the Law of the Land:
1. Self-Executing v. Non-Self-Executing Treaties
2. Last-in-Time Rule
3. Terminating a Treaty
1. TREATIES AND THE CONSTITUTION
Relevant Constitutional Provisions:
Article II, section 2: Allows the president to make treaties with the advice and consent of the Senate. Supremacy Clause (Art. VI): The Constitution, laws and treaties made under the authority of the U.S. shall be the supreme law of the land.
Guiding Principles on Role of Treaties in the Constitution:
The existence of a treaty can make constitutional a statute that would have been unconstitutional absent the existence of the treaty, where the state interest is not sufficiently strong (e.g., “the invisible radiations of the 10th Amendment). (Missouri v. Holland)
No treaty can trump the Constitution. (Reid v. Covert)
Above two cases are reconciled by attributing different weights to treaties affecting substantice individual rights and more general amendments (5th & 6th v. 10th). Missouri v. Holland (1920): The State of Missouri sued the Secretary of Agriculture to prevent enforcement of the Migratory Bird Treaty Act (executing a treaty between U.S. and Canada), which the State says invades its sovereignty and rights under the 10th Amendment. H: Nothing in the invisible radiations of the 10th Amendment preserves for the states the power to regulate these migratory birds. The right to regulate hunting of birds is within state power, but it is not exclusive to the states. Balancing Test Quality: When a court finds the federal interest strong enough, than a treaty can justify the legislation.
Reid v. Covert (1957): Defendants, civilian dependants of armed servicemen, killed their husbands on overseas bases. They were tried under the Uniform Code of Military Justice (UCMJ) which does not provide for a grand jury or jury trial. An executive agreement between U.S. and Great Britain provides the U.S. law apply in this situation. Government argues the UCMJ is the proper law. H: A treaty cannot go outside the constitution, and achieve by treaty what you could not achieve by statute. Therefore, a treaty cannot circumvent the jury trial guarantees of the Bill of Rights. Importance: (Black Letter) No treaty can trump the Constitution.
These holdings have been extended: A treaty that limited speech, saying that an embassy could not be held in disdain, was held invalid when it prohibited an anti-apartheid protest against the South African embassy. Rasul v. Bush: U.S. was found to have jurisdiction over a...