Tuesday, June 27, 2006

How Important is International Law?

To some people very. But as David Bernstein points out, international law has taken a place on a pedestal far higher than anyone should want it to be.

The question is whether international law should be considered in policy making. I would argue that in the US, treaties should have little bearing on our policies. The Constitution states in Article VI that all

treaties made... under the authority of the United States, shall be the supreme law of the land.


This clause has been read to give statutory weight to treaties, and apply the last in time rule. In other words, if a treaty is signed, it becomes law. But once the treaty is superseded by a statute, it is no longer operative. So some treaties are not applicable anymore.

Moreover for a treaty to be justiciable in the courts, it must be executed. Some treaties are self-executing, which means once they signed by the President and ratified by the Senate, they become law like anything else. Most however are not self-executing and were never executed. So in reality very few treaties can be used in the courts.

On top of that, much of international law isn't even treaty-oriented. International law has four recognized sources, as per Article 38 of the Statute of the International Court of Justice: treaties, customs, norms, and the opinions of learned scholars. Custom and norms are not sources to which the country has consented and the opinions of scholars cannot be law in any meaningful sense of the word. So I fail to see why the actions and statements of other countries (the sources for custom) should be relevant at all in what we do.

Norms, even Jus Cogens, are not subject to consent and are therefore no more relevant than custom. Why would we take them into consideration?

When it comes to a country like Israel, the utility of international law is even less clear. International law is notoriously left-leaning, since it is made for the most part by scholars and not politicians. Rarely is Israel charged with violating a treaty (which the exception of the Geneva Conventions) and it is usually blamed for not abiding by customs it refuses to take upon itself. Moreover, in some case Israel is even blamed for not following treaties it refused to sign!

International law has too much of a naturalist flavor (in contradistinction to positivism which requires consent for a law to be binding), and since what constitutes natural law for this purpose is decided by academics with no real world experience and no accountability, international law has little utility indeed.

12 Comments:

Blogger Charlie Hall said...

'if a treaty is signed, it becomes law'

I think that the treaty also has to be ratified to become law, at least in the United States.

'Why would we take them into consideration?'

Self-interest, for one.

The fact that we agreed to much of it, for another.

International law makes it possible to make contracts between parties in different countries. It makes safe international travel possible. It sometimes prevents wars. It sometimes allows reductions in taxes. It has allowed more humane treatment of prisoners of war.

Admittedly, most totalitarian regimes honor international law only when it pleases them. But a characteristic of most democracies is that they mostly try to follow it. (Israel's violations of the fourth Geneva convention, and the US refusal to provide criminal defendants prompt access to consulates notwithstanding.) And that is something we should be proud of.

'So in reality very few treaties can be used in the courts.'

But most of the ones that affect people on a day to day basis can. For example, tax and trade treaties: If a retail merchant tries to charge sales tax to someone who is tax exempt because of a US treaty with the someone's home country, that someone can go to court and will win.

6/28/2006 9:02 AM  
Blogger Ezzie said...

Heh. I *knew* either you or CWY would be putting this up after I saw Bernstein's piece yesterday. :)

6/28/2006 3:39 PM  
Blogger Nephtuli said...

Self-interest, for one.

The fact that we agreed to much of it, for another.


We don't need international law for the first one and there's little argument over the treaties. Most of the debate in public international law is about custom.

But even if we agreed to it, so what? First of all international law allows modification or renunciation of treaties is the circumstances underpinning them have drastically changed. Moreover, why should we abide by something we agreed to if it no longer is in our best interests?

Admittedly, most totalitarian regimes honor international law only when it pleases them. But a characteristic of most democracies is that they mostly try to follow it. (Israel's violations of the fourth Geneva convention, and the US refusal to provide criminal defendants prompt access to consulates notwithstanding.) And that is something we should be proud of.

I'm fine with following bilateral treaties, but have much more of problem with conventions and charters where there is no escape clause.

But most of the ones that affect people on a day to day basis can. For example, tax and trade treaties: If a retail merchant tries to charge sales tax to someone who is tax exempt because of a US treaty with the someone's home country, that someone can go to court and will win.

No one has any problem with enforcing treaties that are in our best interests.

6/28/2006 7:58 PM  
Blogger Charlie Hall said...

'First of all international law allows modification or renunciation of treaties is the circumstances underpinning them have drastically changed....I'm fine with following bilateral treaties, but have much more of problem with conventions and charters where there is no escape clause.'

If we aren't going to follow a particular treaty, we should say so explicitly. Most of the multilateral treaties have provisions for such. We could even withdraw from NATO if we wanted -- or remove our military from the common command structure (as France did, decades ago).

'No one has any problem with enforcing treaties that are in our best interests.'

A lot of folks think our trade treaties (WTO, NAFTA, etc.) are not in our best interest. But they are the law. If a customs agent tried to apply a higher duty than prescribed in one of those treaties, the importer could go to US court and would win.

6/29/2006 4:35 PM  
Blogger Ezzie said...

Both CH and Nephtuli, what do you think of today's ruling (which invoked international law in its ruling)?

6/29/2006 6:21 PM  
Blogger Nephtuli said...

If we aren't going to follow a particular treaty, we should say so explicitly. Most of the multilateral treaties have provisions for such. We could even withdraw from NATO if we wanted -- or remove our military from the common command structure (as France did, decades ago).

Many do not (the Geneva Conventions for example). But I do agree that we should just abrogate it and move on if it's in our national interest.

A lot of folks think our trade treaties (WTO, NAFTA, etc.) are not in our best interest. But they are the law. If a customs agent tried to apply a higher duty than prescribed in one of those treaties, the importer could go to US court and would win.

I'm not talking about individuals enforcing treaties or about clear-cut executed treaties. I'm talking about vague notions of customary law and the like.

And I didn't get a chance to read Hamdan (it's 185 pages long!) but I'm not much of a fan of using custom to interpret treaties (the Common Article 3 argument the Court used.

6/29/2006 11:24 PM  
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