2009 - waxman outline
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8/2/2019 2009 - Waxman Outline
What is International Law?
o Restatement: International law consists of rules and principles of general application dealing with
the conduct of states and of international organizations and with their relationships inter se, as well
as with some of their relationships with persons, whether natural or juridical.
o Brierly, The Law of Nations:The body of rules and principles which are binding upon civilized
states in their relations with one another.
IL Consists of:
o ICJ, Art. 38:
o International conventions, whether general or particular, establishing rules expressly
recognized by the contesting states;
o International custom, as evidence of a general practice accepted as law
o The general principles of law recognized by civilized nations
o 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.
o Restatement Section 102:
o A rule of international law is one that has been accepted as such by the internationalcommunity of states
In the form ofcustomary law
By international agreement, OR
By derivation from general principles common to the major legal systems of the
o Customary Law: results from a general and consistent practice of states followed by
them from a sense of legal obligation. Opinio juris:sense of obligation to comply.
Counter: Tends to be unclear, making cooperation and coordination by custom
o International Agreements: Create law for the parties thereto and may create customary
international law when such agreements are intended for adherence by states generally
and are in fact widely accepted.
In the US: Art. VI of the Constitution expressly makes treaties the supreme
law of the land. But there is a question of self-executing, non-self executing.
o Principles common to the major legal systems, even if not incorporated or reflected in
customary law or international agreements, may be invoked as supplementary rules of IL
Dissent: This is being challenged in recent years. So called 3rd World Countries
have gained a numerical majority in the UN General Assembly, and while they
have little bite enforcement wise they have enacted several declarations
(Declaration on the Granting of Independence to Colonial Countries and
Peoples) that could have an effect on the global legal order.
Changes in IL:o Creation and evolution of various and regional entities has been paralleled by substantial changes
in international law.
o (1) the individual has become a recognized actor along with states and international
o (2) national, regional, and international tribunals have become much more active and
effective in enforcing international legal norms.
Enforcement Mechanisms of International Law/Reasons to Follow Rule:
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o Reciprocity:A country will often comply with the well-accepted international norms protecting
embassies and diplomats because the country realizes that it wants its own embassies and
diplomats to be protected by other countries.
o Intl Reputation:US vessels and rockets in the Persian Gulf. Intl rules of neutratlity have attained
a high degree of recognized legitimacy and must not be violated lightly . They are well
understood, enjoy a long pedigree and are part of a consistent framework of rules governing and
restaining the use of force in conflicts. To violate a set of rules of such widely recognizedlegitimacy would transform the US posture in the gulf from that of netural to belligerent. Coud
affect role as an honet broker seeking to promote peace negotiations. It would also undermine the
carefully crafted historic rules of the game applicable to wars. Court of World Opinion
o International Courts: Proliferation of regional and international courts. Often they only have
jurisdiction to those who submit to their jurisdiction, and their procedural mechanisms are slow,expensive and cumbersome. Often not respected completely internationally. Do these help develop
customary and/orinterntional common law?
o Sense of Community: Legitimizing requirement of rule integrity assumes that each person is as
worthy as any other, that each much be treated with equal concern according to some coherent
conception of what that means.
Why do States follow international law?
o Instrumentalist Approach: States use international rules as a means to attain their interests inwealth, power and the like.
o Liberal: Compliance depends on whether the state can be characterized as liberal. That is
having a form of representative government, guarantees of civil and political rights, and a judicial
system dedicated to the rule of law. Liberal democracies are more likely to do law with one
another while relations between liberal and illiberal states will more likely transpire in a zone ofpolitics.
o Constructivists: States and their interests are socially constructed by commonly held philosophic
principles, identities, norms and behaviors. Norms as playing a critical role in shaping state
identity. States obey international rules not just because of sophisticated calculations about how
compliance or noncompliance will affect their interests, but because a repeated habit of obedience
remakes their interests so that they come to value rule compliance. States follow rules because
they have a long term interest in the maintenance of law-impregnated international community.
o Transnational Legal Process: (1) One or more transnational actors provokes an interaction with
another, which forces an interpretation or enunciation of the global norm applicable to the
situation. The moving party seeks not simply to coerce the other party, but to internalize the new
interpretation of the international norm into the other partys internal normative system. The aim is
to bind that other party to obey the interpretation.
o NGOs: Highly influential in this process by creating internal factions.
International Relations Theory:
o Realists: States are principal actors in international politics. They interact in an environment of
anarchy. Defined as the absence of any central government able to keep peace or enforce
agreements. Security is their overriding goal, and self-help their guiding principle. Rules and
institutions have little if any independent effect on state behavior. Might is right.
Institutionalists: Much the same as realists, but they see states as mere fictions that aggragate theinterests of their citizens.
o Liberals: View individuals and private groups as the fundamental actors in international politics.
But their preferences are determined by domestic politics rather than assumed interests or material
factors like relative power. Requires attention to the domestic politics and constitutional structures
of individual states a daunting prospect for analysis of international relations.
o Transnational Liberals: would reject doctrines that limit law creation to states.
Asserting that the domestic-international distinction has broken down, they would urge
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the significance of transnational norms created by private actors and governmental units,
as well as domestic norms.
Is IL really law?
o No: IL is highly indeterminative and unenforceable. Not really law because international society is
not really a society, the world of nations is a collection of sovereign states, not an effective body
politic which can support effective law. There is no effective law-making body, and new lawscannot be imposed on any state. Even old law cannot survive is rejected by a few powerful states.
Theres no judicial to clarify and develop the law, to resolve disputes impartially, and to impel
nations to observe the law. The courts that do exist are wholly inadequate. Further, there is no
executive to enforce the law. Nations only follow the rules when they wish to do so. International
law then is wholly voluntary.
o Counter: The unenforcement side focuses far too narrowly on the use of force, a
relatively small sphere of IL.
o Yes: Its a question of does IL have a pulling force on people and decision making? IL is often
followed due to ideas of reciprocity. Some simply because the law is seen as legitimate and
therefore should be obeyed (liberalist viewpoint.) Even without centralized adjudications and
enforcement agencies such as through arbitration or unilateral self-help retaliatory measures.
Law includes the structures of governments, and the schemes under which they operate, not just
police and judges. Includes status of people/states. Even though there is no internationalgovernment, there is an international society. IL provides the structure of that society, its
institutions, forms, and procedures, the status and rights of the bodies that make it up. The idea of
statehood and that being the building block of international relations is a legal concept. The laws
that govern this are often taken for granted because they very rarely break down. Internal
sovereignty is fundamental and often observed. Without a binding recognition to treaties and
agreements as legal documents there could be no international relations. Nations that try to escape
these agreements invoke legal principles to do so. Even if its difficult to make, it is made. It grows
even. While the courts decisions are few, they are respected. No executive is met by horizontalenforcement.
Why is IL law binding?
o Fundamental Rights: Takes the idea of natural rights and imposes it onto states. Simply the fact
that you are a state grants you some natural rights. Those being: self-preservation, independence,equality, respect, and intercourse.
o Posner: IL emerges from states pursuing their interests to achieve mutually beneficial outcomes,
and it is sustained to the degree to which it continues to serve those interests.
o Positivists: IL is the sum of the rules by which states have consented to be bond, and that nothing
can be law to which they have not consented. This consent may be given expressly, as in a treaty,
or it may be implied by a state acquiescing in a customary rule. Counter:New nations simply
dont consent to IL, they dont have much choice.
o Precedent:Case of the S.S. Lotus (1927): Ships that collided. French crew prosecuted in
Turkey. H: First and foremost restriction imposed by international law upon a state is that failing the existence of a permissive rule to the contrary it may not exercise its power
in any form in the territory of another state. Jurisdiction is territorial, it cannot be
excercised outside a state except from a rule or customary law. They can however,
exercise jurisdiction within their own border in respect to any case that has taken placeabroad.
o Brierly: Ultimate explanation of the binding force of alllaw is that man, whether he is a single
individual or whether he is associated with other men in a state, is constrained, in so far as he is areasonable being, to believe that order and not chaos is the governing principle of the world in
which he has to live.
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o Determinancy: The ability of the text to convey a clear message, to appear transparent in the
sense that one can through the language to the meaning. Indeterminancy has costs. It is more
likely to be complied with if people know how to comply. Also, makes it harder to justify non-
compliance. States will only follow a rule if they determine it sufficiently clear to expectcompliance by others In the future.
o Symbolic Validation: When a signal is used as a cut to elicit compliance with a command.
Reinforces relationship with the state. Serves to legitimize rules.o Ritual:
o Pedigree: Seeks to religitimize compliance by stressing the historical foundations of a rule. Must
be applied coherently.
Use of Force
Arguments for Use of Force:
o Art. 42: UN may take actions by military force.
Strat: Consider if this will get vetoed.
Strat: Look for a recommendation from the general assembly.
o Art. 51:Collective self-defense in the event of an armed attack. Requires less imminence
than under unilateral action according to the Chayes article.
Interpretations: Some interpret armed attack broadly to cover a large range
of threats, thus permitting anticipatory self-defense. Others say that inherent
right of self-defense extends beyond cases of armed attack.
o Art. 52:Regional arrangements could deal with such matters relating to the maintenant
of peace and security as are appropriate for regional action.
o Security Council Resolutions: Ultimately you really wish to base any military expedition
on previous UN resolutions.
Strat: If deadlocked, there is some support for the idea that regional bodies
should take over to prevent the security council from hindering peace keeping.
o General Assembly Recommendationo Regional Body Support
o The Caroline: The Oh Canada case. Prime example of opinion juris and CL.
BoP: On the aggressor.
Duration: The strictest possible time, and strictly confined within the narrowest
limits imposed by that necessity.
Necessity of self-defense. Instant. Present and inevitable.
o Subjective: A nation, in good faith thought an attack was
inevitable. Too hard to police.
o Some Process: i,e. UN Security Council. Too slow.
o Objective: Reasonableness standard. How defined? Over-whelming.
No choice of means
AND no moment for deliberation.
Must be shown: Day light could not be waited for. That they could not
possibly have negotiated with those on the Caroline.
That the Canadians did nothing unreasonable or excessive forceimplied must be in relation to the necessity.
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o Monroe Doctrine: Might try to justify something with acquiescence to a doctrine like the
Monroe doctrine, but its undoubtedly weak.
Policy Args: If you dont go with war you undermine the UN altogether.
o Art. 2(3-4) of UN Charter
Counter: Use of self-defense in armed attack.
o Art. 53: Possibly trumps collective self-defense.
Strat: Chayes says that there is support for the idea that if the regional bodys
decision is recommendatory, but not mandatory it cannot be considered
enforcement action. From theICJopinion Certain Expenses of the UN.
o Preamble of UN: Armed force shall not be used, save in the common interest, to unite
our strength to maintain international peace.
Policy: If you go with war w/o express authorization you undermine the
international legal system. Also, you want other nations to not resort to such
means in the future, so you dont want to set a precedent.
o Kellogg-Briand Pact: Extremely non-binding treaty that condemned war (Art. I), and
pledged to use peaceful means to settle their international disputes (Art. II).
Realists: Say that is hodge-podge bullshit with little or no force.
Brianists: It is in the very least something that might make a country think
o Court of World Opinion
UN Enforcement Mechanisms:
o Art. 5: Can suspend any member state from the rights as a member if they are the subject of
Security Council Action.
o Art. 19: Can renig your right to vote if you fail to pay dues.
o Art. 41: Security Council can resort to economic sanctions. Interruption of rail, air, sea, postal,
telegraphic, radio, and other means of communication, and severance of diplomatic relations.
Waxmans Arg For Guantanamo: For a decade Al-Qaeda had been at war with the US at a lvl before onlyknown to states. If such had been state action nobody would have argued that they were in a state of war.During war you take prisoners and you dont release them until the war is over.
o Law as Constraint: Whethre law operate as a constreaint, in the sense of narrowing choice or
excluding certain courses of action. Obedience to law is most often perceived as response to an
external constraint, but as the affirmation of valued and desired objectives. Even if it violates the
law the law may in fact constrain the degree to which it is violated. Law simply acts to restrain
choice and make cost/risk analyses. Is this soft law?
o Application to CMC: Legal consideration influenced the outcome through the
perspective of the players. Aldai, Bobby Kennedy, etc. Kennedy wanted a blockade
because it was the moral thing to do given our nations history.
o Law as Justification:Nay sayers cry that the law is simply an excuse, way of making the bad look
good in retrospect of a decision made previously and justified later. But, the requirement of
justification imposes the discipline and check of the necessity to formulate its decision in terms of
the set legal rules and procedures within which the case is presented for determination. While this
can never determine right/wrong, it can distinguish a good faith attempt from a trivial one. Ittherefore provides an important substantive check on the legality of action and ultimately on the
responsibility of the decision-making process. Helps to legitimize the actions. Legal norms
express values common to most men, and are therefore an excellent source of justification. Its a
checks and balances system on the international level to have to persuade multiple countries to
your view point.
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o Application to CMC: The decision to go to the OAS.
o Law as Organization: The law is now formed by an explosion of international organizations.
These often act independently of the nations they represent, even if their ambassadors haveexplicit instructions. The fact that they are there can shape how a country acts. They can express a
common regional idea of the law. To simply ignore such organizations can mock the talk of big
powers. The orgs can make it more efficient to formulate policy and to rally support. It can birth a
declaration in the public spotlight through deliberation, thereby giving it moral force. Theyexpress political (and therefore legal) wills. Can help unify and produce specific, effective
language. Can also foster information sharing. Can provide the doctrinal basis for the legal
o CMC: Votes of the OAS gave it the legal authority. Missile placement in itself was not
an attack in the legal sense. Could it be considered imminent? Russian had a legal streak
going, so we had to match it. They decided to do a quarantine not a blockade. Is this
o Argument that it was Illegal: US resorted to unilateral military action that cannot be
reconciled with its obligations under the UN Charter to settle internatiuonal disputes by
peaceful means and to refrain from the use of force (Art. 2, 3-4), except for individual or
collective self-defense against armed attack (Art. 51), under authority of the UN (ar.t 24,
39), or on invitation of the state where the force is to be used (art. 2, 1).
o Kosovo (Humanitarian Intervention)
o Lessons Learned
Threats are possibly against the charters dedication to peaceful resolution of
Without an ultimate use of force threats are worthless
Russias veto power forced NATO to act w/o mandate
Mixed signals impeded effective diplomacy
Illegal, but legitimate
Beneficial: This has some benefit in that it pushes the idea forward that
this should have been deemed illegal and promotes change
Dangerous: Undermines adherence to the UN system. Argument: Serbs ignored and defied international law. Massive civilian
casualties. Diplomacy had failed. Taken w/ regret in order to save lives. Main:
Every means short of force has been tried to avert this situation. In thesecircumstances, and as an exceptional measure on the grounds of overwhelming
humanitarian necessity, military intervention is legally justifiable. The force
employed is necessary to prevent that crisis, and is the minimum judged
Against: Its an internal matter, and should be resolved among the
o China simply trying to avoid similar future arguments over
o Official Argument
1441 Authorized serious consequences.
If UN doesnt act = obscurity
His willingness to act is shown by gassing of Kurds
He authorized his commanders to use them, showing intent
Council recognized he was a threat to international peace and security.
Unless act now the future can be even worse
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Foreign Relations Powero Little v. Barreme (US 1804)
o F: Danish vessel captured under law allowing capture of American ships going to France with
cargo for France. Capt received a communication from his superiors that he was to seize all ships,
whether American orapparently American, going to orfrom a French port.
o I: Is the Capt liable for violating the act as laid out by Congress, or is he excused based on prexys
o H: There is a legislative intent to seize ships going to France, not comingfrom France. He is
o D: Hes a military man. He has a duty to obey the orders that come down to him. While
they may not justify his actions, it should excuse him.
o P: The instructions cannot change the nature of the transaction, or legalize an act which
without those instructions would have been a plain trespass.
Exec Powers at Issue: Commander-in-chief, power to make sure the laws are
Congress: Regulate commerce and authority to make rules concerning capture
on land an water
Depends on how you interpret the silence of from.
o F: Congress made a law saying that if prexy decided that selling arms to Bolivia was illegal, it
would become illegal. Prexy did so, and Curtiss-Wright company challenged its constitutionality.
o I: Assuming that the challenged delegation, if it were confined to internal affairs, would be
invalid, may it nevertheless be sustained on the ground that its exclusive aim is to afford a remedyfor a hurtful condition within foreign territory?
o H: The legislation is upheld, Congress shouldnt with prexy in intl affairs.
o Reasoning: That fed govt can exercise no powers except those specifically enumerated in
the Constitution, and such implied powers as are necessary and proper to carry into effect
the enumerated powers is true only in regards to domestic affairs. These powers were
carved from the states. And since the states never had international powers, such powerscould not have been carved from the mass of state powers but obviously wee transmitted
to the US from some other source. Intl powers were transferred from the crown to the
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o The president is the sole organ of the nation in its external relations, and its sole
representative with foreign nations.
Counter: Taken in full context including does not require as a basis for its
exercise an act of Congress this is dicta, because there was such an act.
Normative: Interference by congress would diminish the negotiation capacity of
the prexy, and impair the security of the nation. Requires caution and unity of
design, and secrecy and dispatch. Speed of decision making. He has the bettermeans to know what is happening abroad (legions of diplomats). Allowing
Congress to 2nd guess would hamper future negotiations.
o This is not just a power granted to the Prexy from Congress, but such a power plus the
very exclusive, plenary and sole power of prexy in international affairs. Congressional
legislation which is to be made effective through negotiation and inquiry within theinternational field must often accord to Prexy a degree of latitude.
o H: Indispensability of steel led the prez to determine that the stoppage would affect our national
defense (Korean War). He decided to seize the mills. Congress has taken no action.
o I: Whether the Prexy was acting within his constitutional power when he issued an order directing
the Secretary to take possession of an operate most of the Nations steel mills.
P: This amounts to an act of law making, and the constitution clearly gives that power toCongress.
Reasoning: Prezs power must come from an act of Congress or the
Constitution itself. In fact Congress rejected such seizures in previous
legislation. CIC power does not justify. He has expanded powers in theatres ofwar, but seizing private property is for Congress. His executive function in itself
refutes the idea that he is to be lawmaker. Nothing is plainer than that the war
power is entrusted in Congress. But the prez should not be able to master
internal affairs with his command of external wars. Congress supplies the
military. Only Congress can provide the army. Prez cant quarter troops
domestically (3rd Amend.). Perhaps could do so if turned inward due to
o D: He was acting in his aggregate powers as the Nations Chief Exec and the
Commander in Chief. Reasoning: C.C. power is to wage war effectively , and war needs vigorous
decisive action, especially in modern industrialized warfare. Closing the steelmills hampered the prexy in doing that so he was right to interfere.
o Blacks Boxes:
Box 1: When the prez acts pursuant to an express or implied authorization of
Congress, his authority is at its maximum, for it includes all that he possesses in
his own right plus all that Congress can delegate. In these circumstances, and in
these only, may he be said to personify the federal sovereignty. If
unconstitutional it basically means feds lack that power. (Curtiss Wright)
Box 2: When the Prez acts in absence of either a congressional grant or denial of
authority, he can only rely upon his own independent powers, but there is a zone
of twilight in which he and Congress may have concurrent authority, or in whichits distribution is uncertain. Therefore Congressional inertia, indifference may
sometimes enable, if not invite, independent prez measures.
Cant let Prez just tell Congress to pass a new statute if they disagree
with his interp. That would give him an extra Prez veto.
o We want Congress to speak clearly in time of war.
Box 3: When the Prez takes measures incompatible with the expressed or
implied will of Congress, his power is at its lowest ebb, for then he can rely only
upon his own constitutional powers minus any constitutional powers of
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Congress over the matter. Here it must be scrutinized with caution. (Steel
?: Does lowest ebb and incompatible suggest that he still has
o Perhaps it is good thing for an agile, decisive president having more power since world now hasquick threats. Supported by Fed #70
o Maybe at least require exec decision to be out in the open?
o Doesnt this disadvantage the prezs ability to keep secrets?
o What if we are in Blackmuns 3rd Box?
o Even at lowest ebb prez power is sufficiently strong to overcome
Prez should have to rely on veto and expend political capital
But, Congress can act w/o loss of political capital, Prez cant.
o Congress better represents public opinion.
o But public opinion swings widely, perhaps its better to have a solid policy stance.
o Congress must have the chance to participate in the policy decision process, or else those
decisions cant be called the policies of the United States
o He has speed, secrecy, flexibility, and efficiency that no other govt institution can match.
o Courts should not abstain from deciding these issues because what is at stake is the equilibrium of
our constitiutional system.
o Counter: Perhaps its a political question best left up to the other branches. (Jacksons
concurrence in Youngstown is good for this, read again)
Why Does the President Always Win?
o Executive Initiative: Circumvention of legislative restraint. Included with his going around the
War Powers Resolution. Congress is structurally poor for initiative with its bicameral structure,
the presidency is ideal for such. He has speed, secrecy, flexibility, and efficiency that no other
govt institution can match. Generation after FDR grew up believing in a muscular prexy ininternational affairs. Changing structure of intl org/diplomacy and swift action problems like
terrorism make an active prexy needed. New image that prexy must act swiftly and forcefully has
inevitably led to an active presidency. Counter: Shift of power to exec and his underlings facilitated swift and secret
action, it sacrificed the technical expertise, institutional judgment, bureaucratic
support, and bipartisan political approval that comes from consultative inter- and
intrabranch decision making.
o Congressional Acquiesence: Internal politics of congress lead them to be unable to build the
consensus for action, and even then the supermajorities to overcome filibusters often are narrowly
focused to known policy defects. Then, even if passed, bad drafting can impede its effectiveness.
Consulting in every possible instance, or consulting with Congress gives prexy large latitudeto interpret. Congress also lacks adequate tools. Reporting and consultation reqs are easily dodged.
Oversight is often post-facto. They could have used legislative vetoes or appropriations cut offs,butINS v. Chadha denied the veto. The more broad the language the better the prexy can argue
that its hard to interpret, the more narrow the better his arg that its unconstitutional. Prez can also
go around Congress by private companies and money. Lastly, a critical number of legislatures hasbeen unwilling to take initiative, preferring to leave the decision and the blame on the prexy. For
instance, appropriations cut offs leave the legs responsible for leaving soldiers stranded in the
Effective Counters: Disapproving by a joint resolution or by voting an
unambiguous and complete denial of appropriated finds for the disfavored
program. Still need to override an inevitable veto.
o Judicial Tolerance: Would think less success given the few presidential powers specifically
enumerated in Art. II. But he owes success to Curtiss Wrights sole organ of the national in
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external affairs. Prez now uses it fairly exclusively to justify anything. Plus, their statutory interp
for foreign affairs: (1) ignores the legislative history and construes pro-president, (2) broadly
construe it despite its impact on individual rights, and (3) rely on absence of express congressional
disapproval, long history of prez deference to elevate to Box 1. UnderDames & Moore
congressional inaction can be construed express approval. Yet to disapprove underChadha theymust have a supermajority, effectively allowing the Courts to move any action from Box 2 or 3 to
Box 1. Then of course there isjusticiability
issues.o Counter: The new judicial framework applies a special deference to executive acts in
foreign affairs, a requirement that Jackson himself rejected in Youngstown.
Alternative Ways to Make a Treaty:
o Art. II Treaty: Senate gives advice and consent.
o Function: It is the Prez, not the Senate that ratifies and makes treaties. The Senate advice
and consent function can be plain advice or active participation in the negotiations, but its
usually de minimus.
Common Art II: Things that are enumerated under Art I. Commerce, or
declaring war. Military alliances, common to war/peace, human rights.
o Executive-Congressional Agreements: (NAFTA) Not passed by 2/3, but still has domestic effect.
(Passed as a statute).
o Executive Agreement: Prez acts on own w/o regard to congressional approval. Prez agrees to give
warships in exchange for bases.
o Counter: Hard to justify if the power is fully enumerated in Art. I only.
Common: Things fully under Art II powers, Military Bases, Settling disputes
Isnt this good since we have more treaties these days?
Isnt this unchecked expansion of exec power?
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o Cooper Memo/ABM Interp:
o Prexy has dual role. (1) to negotiate the treaties. (2) To make sure they are faithfully
executed, in doing this he is responsible for enforcing and executing international
agreements, which means to interpret what the treaty means.
Express Conditions:When the Senate imposes express conditions the Prez caneither resubmit or ratify. But if he ratifies with the conditions they are
considered to be part of the US position in ratifying and binding. Statements in the Ratification Record:With exception to the representations
from the committee reports, hearings, and debates we believe there is little
probative value entitled in subsequent interpretations of the treaty. These are Ks
between countries and they should be interpreted to give the meaning most in
line with the with the shared expectations at the time of K. Best evidence of thisis the express language of the treaties and the language reflected in the
negotiating record. Absent express interpretative statements the Senate does not
participate in the negotiating process. Cannot amend treaties based on
statements by Senators not transmitted to the other party. Statements made by
the exec to the Senate during the process should have serious weight. Much like
the leg record is useful in stat interp. Should give weight to current Exec interp,
other wise you undermine his ability to shape policy by binding to statements of
previous exec officials.
Counter: If the prez makes an express statement that the Senate finds
important and relies upon in voting then that would estop the prez from
changing the provision. Otherwise you destroy their advisory role.
Factors for Weight Given to Exec Statement: Formality of the
statement, identity and position of the Exec making the statement, level
of attention and interest focused on the meaning of the relevant treaty
provision, and the consistency which members of the Exec branch
adhered at the time to the view. These reflect the weight to which theSenate could have reasonably relied upon the statement.
Biden Amendment:Pg 45
Treaty Termination Can always argue changed circumstances to terminate.o Goldwater v. Carter (DC Circuit 1979) Ultimately Considered Not Jusiticiable
o Reasoning: Treaty contained a provision to terminate on one years notice. Senate
reserved no role for itself by amendment, reservation, or condition in the effectuation of
Arg for Senate Role:Art. II, Sec. 2: Since the Prez clearly cannot enter a treaty
w/o consent of the Senate, the inference is inescapable that he must in all
circumstances seek the same senatorial consent to terminate that treaty. (2)
Treaties, being supreme law of the land, can only be terminated by a subsequent
statute. Maybe judges are better at interp than exec. Plus, the exec isnt good
at checking itself (there is a post-facto political check.) We dont our entireforeign policy to change with every administration. Is this Box 3? Power to
remove exec officials cant be compared to the power to this, its a power to
remove purely executive officers and completely unrelated to the legislative orjudicial power. Treaty power has a substantial role in congress. He may be the
sole organ of communication, but he is not the sole maker of foreign policy.
Counter: If that is so then the prez would need senate confirmation to
fire those they approve by his appointment, but the SC has held that is
not so. Also never been so for ambassadors in foreign affairs. (2)
Supremacy clause only is relation to state law, it does not mean such
laws must be undone only in the way they are made. Extending the
consultation of the Senate is an exceptional check on the Prez and
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should not be extended judicially by implication. Making a treaty is an
entangling alliance, it does not follow that terminating a treaty should
be considered as such. Powers in Art. I are specific and enumerated,
while the powers in Art. II are general and undefined. External powers
would have been granted even if never mentioned, and prez is the repto external affairs. Senate consent does not oblige him to go forward, so
if he can refuse to enter he can terminate. To hold other wise wouldlock us into treaties even if the Prez and 2/3-1 of the Senate wanted out.
Sole organ is not confined to prez as a channel of communication,
but embraces an active policy determination as to the conduct of the US
in regard to a treaty in response to numerous problems and
circumstances as they arise. Maintaining diplomatic relationships is the
substance of diplomacy and that is a Prez power. BOX 1 ExpressSenate consent to 1 year termination. Framers made it hard to get into
treaties, so probly would want it easy to get out.
o Distinguish: Treaty making as an international act and the
consequences which flow domestically from such act.
o SC Reasoning:
Justiciability:Not ripe for judicial review until Congress and the Exec has taken
action asserting its constitutional authority. If Congress choose not to confrontthe Prex, its not the Courts role to do so. But it could possibly be considered.
Considerations for Justiciability:
o Does the issue involve resolution of the questions committed
by the text of the Constitution to a coordinate branch of
Application:No express provision in theConstitution.
o Would resolution of the question demand that a court move
beyond areas of judicial expertise?
o Do prudential considerations counsel against judicial
International Law in US Courts
o Moravcsik - US Exceptionalism
o US is oldest constitutional system protecting a written bill of rights. Large public support
for such laws, yet we are practically alone among Western nations in not signing onto
treaties to promote these rights. We are unwilling to impose on the US general
interational rules that the US govt accepts in principle as just. Stipulate that most treaties arent self-executing
Refuse to accept the jurisdiction of international tribunalso Why Not?
Rights Culture of the US: Long standing cultural values about procedural
legitimacy render international norms intrinsically unattractive to Americans.
These are popular sovereignty, local government, constitutional patriotism,
nationalism and libertarianism.
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o Cons: US relativism obstructs the UNs resolve to promote
universal respect for human rights.
International obligations violate a widespread reverence toward the US
Constitution and political institutions as sacred symbols among US
legal elites and citizens.
o Pros: Americans think our legal system, especially our
constitution, provides a model that other countries would bewell advised to emulate. Americans are apt to be far less
comfortable with the notion that when it comes to justice, we
may have something to learn from other nations. This could be
because lacking a distinct ethnocentral identity we identify
ourselves to a liberal-democratic creed more than othernations.
o Counters to This: The public has generally viewed intl human
rights treaties more positively than do decision makers. Our
policy is directed more by elites than the public. The ABA is
pro-intl treaties like these, yet our politicians are not,
suggesting that elite legal opinion is not the only driving force.
Its more a fact that that introduction of such norms into our
judicial system would be a problem for the conservativeagenda and so they attempt to fight against it, they fear them
not because they are international, but because they are courts.
Long-standing American belief in popular sovereignty and local
government predisposes Americans to oppose centralized judicial
o Pros: Contrast the dangers of unelected bureaucrats in
international organizations with the legitimate role ofconstitutionally elected representative. There is neither a
subjective sense of an international polity nor working global
representative institutions, and thus there cannot be
o Counter: Strange because European countries are closer to
this ideal in function and they are more accepting of thetreaties. Plus, the US is often seen the classic example of
courts over coming popular bias to administer justice in the
US. Courts have high respect in the US, and are often linkedto individual rights and freedom. Plus, there are other
countries in the world with substantial commitment to local
governance, that dont act as the US.
A popular American rights culture of negative liberties rooted in an
individualist worldview is incompatible with international human rights
o Pros:Points to the absence of a true socialist party and toextensive social welfare institutions present in nearly all other
industrial countries. Says US rejects global human rights
norms because they embody a different philosophicalconception of rights. We stress liberty, they stress equality.
We dont like socioeconomic rights. US rejects intl standards
because they would undermine the high levels of exitsting
protection afforded to particular individual rights by the more
libertarian US system.
o Counter: With the exception of the Universal Declaration
which is wholly unenforceable all treaties have separated
socioeconomic rights and human rights. We could if we
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wished ignore socioeconomic rights and enforce the others.
Intl norms rarely undermine existing protections because they
are almost always floors, and because they recognize the need
to make a difference between state policies and intl ones.
Pros: Opposition to domestic application of multilateral norms is less
likely in countries that possess strong unilateral bargaining powerabroad, stable democratic institutions at home, preferences aboutsubstantive rights that diverge from the international consensus, and
decentralized political institutions that empower small veto groups.
o Superpower Status of the US in World Affairs: Straight
forward realist argument. The more you can act unilaterally to
get what you want, the less willing you will be to sacrifice
sovereignty to work multilaterally. Human rights norms are
generally enforced through courts, where the powerful can
loose sway, while things based on intl legislative forums allow
the US a degree of bullying power.
Counter: If this were really so true any US
administration could simply ratify these treaties and
then nonetheless pursue a unilateral human rightspolicy. This also fails to explain why the heateddebate internally? They are often more concerned
with the domestic implications than the foreign ones.
o Stability of Democratic Governance w/in Our Borders:
While often linked towards liberal democracies, these
established democracies have always been the countries most
AGAINST enforceable intl norms. One reason is that they
gain little at home from such treaties. And no national govtlikes to see its discretion limited through external constraints
imposed by a judicial tribunal.
Counter: Strange, since human rights are often
linked to stable liberal democracies. Also, while theygain little at home, they can give a big boost to
fledgling countries that may need the boost. Fact that
we have an established ex post judicial review
process undermines our desire to take it outside our
courts, or for our courts to implement it at their own
o Concentration of a Small Conservative Minority: Oppose an
expansion and enforcement of many individual rights. Since
human rights norm protect neither property rights nor a right
to education, and the right of religion is already widely
recognized in the West, there is little incentive absent a fear of
protecting domestic concerns. Also, the human rights
promoted are often associated with egalitarian principles
objected to by the right. They often been seen as attempts toimpose liberal federal standards on the southern states.
o The Fragmented Nature of American Political Institutions:
American system stands out in comparative perspective for its
extreme commitment to the madisonian schema of separation
for powers and checks and balances. And the more veto
players the more difficult it is for a national government to
accept international obligations. US system is exceptionally
decentralized in this regard. For instance, the supermajority in
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the Senate lets 1/3 dissent in Senate block such treaties. Also
need to get support of the Foregin Relations Committee chair.
The federal system imposing burdens on the states is an
incentive for conservative senators to block approval. There is
supposedly concern that people could seek judicial help beforeUS courts, or we would be forced to prosecute our GIs at
home to prevent prosecution abroad. US is only advanced industrial democracy that possesses all of (external power,
democratic stability, conservative minorities, and veto-group politics).
NORMATIVE CONCERNS Consequences of the Paradox:
Encourages other countries to violate the norms. Ratification in the
States would significantly legitimize these standards. It would also aid
citizens in violent countries to raise such issues. The failure of the US
to be seen as a country that protects human rights has undermined
national security goals.
o Counter: HR norms have spread widely w/o US backing. Tho
some countries do cite American non-compliance there is little
evidence that it is anything more than justification for policy
decision based on other things. Anti-Americanism may even
inflame moves towards these standards.
Considering Foreign Law in US Cases (Normative Considertions):
o Pros:Enrich our own decisions. Also creates that all-important good impression. When US courts
are seen to be cognizant of other judicial systems, our ability to act as a rule-of-law model for
other nations will be enhanced. The SC has done this since the founding, and they are not binding
decisions but are entitled to the respect of wise men who thought it over. Our system was
emulated everywhere, they are our constitutional offspring, how they decide can reflect on our
system. When interpreting treaties its useful to look at foreign interpretations since the whole point
is to make an intl deal. To ever increasing extent foreign countries have been democratizing, and
sought to protect basic human. They often involved human beings deciding similar questions
under similar statutes. We have to rely on counsel to find relevant citations, and judicial integrityto decide when a case is being picked purely to meet ends.
o Cons: Its illegitimate, the constitution should be read under an originalist approach. Foreign
rulings cannot help in that endevaour. Foreign judges are not accountable to the American people,
and their decision should have no sway. You can find anything you want with foreign law, they
could pick and choose to support their claims.
Possible Functions of Foreign Law in the US
o Interpret like terms. Due Process in treaties, etc.
o Examining empirical effects.
o Establishing community norms. (Such as cruel and unsual)
Application of Foreign Law to US Cases
o Lawerence v. Texas
o Kennedy:Other Judeo-Christian nations have ruled against prohibiting homosexual
conduct as well. The European Court of Human Rights held that law proscribing the
conduct were invalid under the European Convention of Human Rights. Shows that
reasoning in the previous case was rejected elsewhere. These rights have been accepted
as integral parts of human freedom in many other countries. No showing that in this
country the govt interest in circumscribing personal choice is somehow more legitimateor urgent.
o Scalia: Constitutional entitlements do not spring into existence because some States
choose to lessen or eliminate criminal sanctions on certain behavior. Much less when
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other nations criminalize such behavior. The court should not impose foreign moods,
fads, or fashions on Americans.
o Roper v.Simmons:
o Kennedy:D argues that when the US signed the International Covenant on Civil andPolitical Rights we did so subject to a reservation to a section that prohibited capital
punishment for juveniles, showing it should be legally accepted here. The fact that US is
the only country in the world that continues to give official sanction to death for juvenilessupports the view that it should be abolished. We have pointed to foreign decisions for
years to define cruel and unusual. Art. 37 of the Convention on the Rights of the Child
contains an express prohibition on capital punishment for crimes committed by juveniles
under 18. The opinion of the world community, while not controlling our outcome, doesprovide respected and significant confirmation for our own conclusions. It does not
lessen our fidelity to the Constitution or our pride in its origins to acknowledge that theexpress affirmation of certain fundamental rights by other nations and peoples simply
underscores the centrality of those same rights w/in our own heritage of freedom.
o OConnor: Does not believe that a genuine nationalconsensus against the juvenile death
penalty has yet developed, and because I do not believe the Courts moral proportionality
supports a constitutional rule, can assign not belief to the role that international consensus
described by the Court.
o Scalia: The court is not the one with the power to join and ratify treaties on behalf of theUS. Art. II gives that power to the prexy and the Senate. Court fails to look at how many
foreign countries adhere to these rules, and how many have mandatory death penalties for
other crimes, a power we cannot accept. Many foreign laws are different (right to trial by
jury, ECHR ruling that illegally seized evidence does not violate fair trials.)
Foreign Suits in US Courts
o Exec Brief:Sec. 1350 encompasses the law of nations as that body of law may evolve,
not as the law of nations may have existed in 1789. Before entertaining a suit alleging a
violation of human rights, a court must first conclude that three is a consensus in the
international community, that the right is protected and that there is a widely shared
understanding of the scope of this protection. Norm:A refusal to recognize these suitsmay damage the credibility of our commitment to the protection of human rights.Customary international law is federal law, to be enunciated authoritatively by the
federal courts. An action for tort under international law is therefore a case arising
under the law of the US w/in Art. III.
o 2nd Circuit: Relied on intl agreements, declarations, and state policy and practice as
evidence that the law of nations prohibits torture. ATCA does not grant new rights to
aliens, it simply allows them to enforce rights already recognized by international law.
Because the customary international law norm against torture was definable, obligagtory,
and universal it constituted an actionable tort in violation of the law of nations for
purposes of the staute.
o Sosa Slightly Alters Filartiga
o 3 Questions a Court Should Ask (current approach/revised Filartiga approach)
1. Assess whether the asserted claim constitutes a violation of the present day
law of nations, not the law of nations as it existed in 1789.
Application: Where there is no treaty, and no controlling executive or
legislative act or judicial decision, resort must be had to the customsand usages of civilized nations; and, as evidence of these, to the works
of jurists and commentators.
2. Determine whether the asserted violation of the law of nations is accepted by
the civilized world and defined with specificity comparable to the features of the
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18th century paradigms we have recognized as existing at the time of the
Application: Must be defined to the level of piracy, violations of safe
conduct, and offenses against ambassadors.
3. Whether an ATCA claim is judicially enforceable must account for the
collateral consequences of recognizing such an action, particularly the foreign
policy implications of permitting a judicial remedy for such a claim.
Application: Even though many national constitutions revealed that
many countries prohibit arbitrary detention, the consensus about this
prohibition was at a high level of generality. But the claim of
temporary arbitrary arrest did not rise to the level of specificity or
acceptance of the acknowledged arrest did not rise to the level of
specificity or acceptance of the acknowledged human rights prohibition
against prolonged arbitrary detention.
o Arguments Against these Claims (Rejected by SC in Sosa)
Nonjustiticable Political Questions: If courts are simply construing an enacted
statute, and the words being interpreted are the words torts in violation of law
of nations, it is hard to see why constuing those words should not be
quintessential judicial task.
Origanlist Approach: That is, claims could only be heard under ATCA if they
existed at the time of its creation in the 18th century. This would ban a claim for
genocide, even though the international law has long expanded to incorporate
Nationalist Perspective: Courts should recognize no cause of action unless the
political branches expressly consent by enacting such claims into positive law. If
there is not implementing act by the political branches, then intl law has no
status in the US, or must be construed as some species of state law. They basedthis onEerie which said that federal common law decision making was against
State rights. But, if youre interpreting customary intl law, which operates
outside the realm of State powers, there is no such problem.
o Transnational Public Law Litigation
o Expanding effort by state and individual Ps to fuse intl legal rights w/ domestic judicialremedies. This is characterized by:
A transnational party structure, in which states and nonstate entities equally
A transnational claim structure in which violations of domestic and intl, private,
and public law are all alleged in a single action
Aprospective focus directed as much upon obtaining judicial declaration of
transnational norms as upon resolving past disputes
The litigants strategic awareness of the transportabilityof those norms to other
domestic and international for a for use in judicial interpretation or political
Subsequent process ofinstitutional dialogue among various domestic and
international, judicial and political fora to achieve ultimate settlement.o Norms Considerations for Such Cases: Enunciates the clearly established intl human rights
norms, gets compensation, detterence, and denial of a safe haven to the HR violator D.
o Transnational Legal Process: The transsubstantive process whereby states and other transnational
private actors use the blend of domestic and international legal process to internalize international
legal norms into domestic law. An agent triggers an interaction at the intl level, works together
with other agents of internalization to force an interpretation of the international legal norm in an
interpretive forum, and then continues to work with those agents to persuade a resisting nation-
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state to internalize that interpretation into domestic law. Through these repeated process
international norms are taken into domestic law.
o Application: The US called Filartiga a demonstration of its commitment to torture, in
response several UN bodies and other human rights orgs have cited Filartiga, and its beencited by intl courts. Foreign domestic courts have also incorporated elements of FIlartiga
into their domestic approaches. This theory shows international law development being
internalized absent a central Leviathan.
o Filartiga v. Pena-Irala
o H: Deliberate torture perpetrated under color of official authority violates universally
accepted norms of the international law of human rights, regardless of the nationality of
Evidence of International Law: Numerous intl agreements, and renunciation of
torture as an instrument of official policy by virtually all of the nations of the
world. Works of jurists, writing professedly on intl law, or by the general usage
and practices of nations, or by judicial decisions recognizing and enforcing that
law. But, the requirement that the rule have the general assent of civilizednations to become binding upon them all is a stringent one. Otherwise courts of
one nation could impose idiosyncratic rules on antoher.
Application: Torture is in the Universal Declaration, and that states tobe basic principles of intl law. Because of these declarations nationscan no longer claim to not know what they have signed onto.
Pros: US must have the power to vindicate the rights of foreigners in
this country to protect our reputation as a country that deals justice to
o H:Courts should require any claim based on the present-day law of nations to rest on anorm of international character accepted by the civilized world and defined with a
specificity comparable to the features of the 18th century paradigms we have recognized.
Reasons for Judicial Caution: Prevailing conception of common law has
changed greatly since the founding. Also, there is no federal common law, andthe courts are bound tightly on what sorts of federal law they can make. Would
also pose a potential problem for the legislative and executive branches in
maintaining foreign relations. US courts must be very cautious before imposinga ruling that effectively limits a foreign nations domestic powers. Fifth,
Congress has done nothing as a body to promote further causes of action.
o Determining an International Norm: Where there is not treaty, and no controlling
executive or legislative act or judicial decision, resort myst be had to the customs and
usages of civilized nations, and, as evidecen of these, to the work of jurists and
commentators. Executive opinions on the foreign relations consequences is due great
weight. Footnote 21. BUT, it is not controlling. Separation of powers requires the court
to do an independent inquiry (Khulumani).
Treaty: Here he cited a treaty, but the court says it was signed with the
reservation that it was not self-executing, so therefore it cannot be a basis forjudicial decisions (minus some showing of enacting legislation.) So they turn to
customary international law.
Norm Concerns: His argument would create a cause of action for
ANY arrest, anywhere in the world, not under the jurisdiction of the
place it took place w/o regard to the circumstances. His argument
exceeds any binding customary rule having the specificity we require.
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o Courts are free to deny a remedy to a breach of an international law, regardless of
whether it is recognized as international law. But, to assure itself that it has jurisdiction it
must establish that there is such an international recognition. Whether or not a treaty isself-executing is evidence of whether or not that norm is sufficiently accepted by the intl
community, but simply because a treaty is not self-executing does not make it of no value
in that determination.o Hall: Federal courts must turn to intl law to divine standards of primary liability under
ATCA. But to derive a standard of accessorial liability a federal court should consult the
federal common law. Intl law does not define the means of its domestic enforcement.
These means encompass at least some aiding and abetting issues.
o Dissent: Judicial acquiescence to the executive on foreign relation questions has been
established under the political question doctrine. Creation of aiding and abetting liability
is a legislative act, removed from creating causes of action. Because there is criminal
aiding and abetting in international law does not mean that there is civil aiding and
abetting liability as well. There should be a presumption against the extraterritorial
projection of US law on foreign nations. The original ATS was meants to avoid conflict
with foreign nations, not provoke it, it was originally intended to redress harms to foreign
ambassadors ON American soil, not injuries originating outside the states.
Factors for Dismissing based On Foreign Opinion: Degree to which theinterests of a foreign sovereign are legitimately affronted by the conduct of
litigation in a US forum, steps the foreign sovereign may have taken to address
the issues in the litigation, and the extent of our own interest in the underlying
issues. Also, whether its a democratically govt w/ independent judiciary.(perhaps most important.) Is there a legit chance they can seek fair redress in
their own courts?
o Concerns of Foreign Governments:
US Foreign Relations Considerations: This promotes law suits challenging the
conduct of foreign governments toward their own citizens in their own
countries, charges they would normally be immune from, by naming as Ds those
companies that legally did business with them. This leads to tensions between
the US and the other govt. Should be especially cautious about pronouncing
limitations to what foreign govts can do in their own territories and when thosecountries have gone out of bounds. Aiding and abetting means you have to have
a principal that was committing illegal activities. So you are putting South
Africas official conduct on trial. This seriously undermines the political
branches ability to conduct foreign policy. This will deter US companies from
making investment in developing countries, thus hurting our interest in helpingthem develop. This will also affect the govts ability to use the fiull range of
options available to change foreign policies.
UK: Such litigation interferes with national sovereignty, creates legal
uncertainty and costs,and risks damaging international relations. This treats theATS to extend US jurisdiction far beyond the limits recognized by IL. This will
subject these companies to confusion and risk of conflicting legal standards.
South Africa: This will intrude upon and disrupt SAs own attempts atreconciliation. They have chosen a no finger pointing approach, and this
litigation threatens to undermind that. Matters central to the future of domestic
SA affairs should not be adjudicated in foreign countries. The democratically
elected govt of SA is charged with a mandate to deal with Apartheid, not US
courts. It remains an issue for the court of SA to define reparations. This will
discourage direct foreign investment in SA. This directly infringes on SA
o Limitations on ATS: (1) Forum non-conviens. (2) Foreign Sovereign Immunity
o Norms for ATS
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Pros: (1) Hold people accountable, (2) provide victims w/ acknowledgement
reparations, (3) promote awareness of abuses, (4) contribute in international
norms (transnational legal process), (5) catalyze foreign efforts to prosecute, (6)
prevent US as safe haven, and (7) determinancy.
Cons: (1) Interfere w/ foreign policy, (2) effective?, (3) reciprocity, and (4) US
as Court of 1st Pesort