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What is international law anyway? The New York Times has it wrong

Yesterday’s New York Times had a fascinating editorial that seemed to be a defense of international law– or, as it was known at the time of the Framers of the U.S Constitution, the “law of nations.”  Unfortunately, the editorial suffers from a critical defect. It conflates “international law” proper with what we in the United States call  “foreign law,” the laws of other states.  The editorial reads in full:

Nativism in American politics has become so rampant that it is considered scandalous in Republican circles for a judge to acknowledge paying any attention to foreign courts and their legal rulings. Justice Ruth Bader Ginsburg, one of the few prominent jurists to speak out against this trend in recent years, gave an on-the-money speech last week pointing out the xenophobia on recent display in the confirmation hearings of Elena Kagan.

At one point, Senator Charles Grassley, a Republican of Iowa, noted with scorn that Harvard Law School, where Ms. Kagan had been dean, required first-year students to study international law. Senator Tom Coburn, a Republican of Oklahoma, asked why Ms. Kagan thought it was acceptable to use foreign law to interpret the Constitution, which she retorted was almost never the case. Senator Jon Kyl, a Republican of Arizona, summed it up: “I’m troubled by it,” not because foreign law would create a United States precedent, but “because it suggests that you could turn to foreign law to get good ideas.”

In her remarks on Friday, delivered to the International Academy of Comparative Law at American University in Washington, Justice Ginsburg said that kind of thinking is completely at odds with the views of the nation’s founders, who were extremely interested in the opinions and laws of other countries. The authors of the Federalist Papers, she noted, cited the “high importance” of observing the “laws of nations.” And, of course, the Declaration of Independence itself was an appeal to the “opinions of mankind” in a “candid world.”

To the extent that the United States wants its ideals and legal system to inspire others, it should take interest in ideas from overseas, she said, not necessarily adopting them but drawing on them. Ms. Kagan made it clear that foreign opinions are not authoritative, Justice Ginsburg said, adding: “They set no binding precedent for the U.S. judge. But they can add to the store of knowledge relevant to the solution of trying questions.”

In 2002, the Supreme Court prohibited the execution of those mentally retarded, noting that the practice is overwhelmingly disapproved around the world. In 2003, it struck down prohibitions on gay sex, which it called “an integral part of human freedom in many other countries.” In 2005, the court prohibited the execution of minors, again noting global opinion. “It does not lessen our fidelity to the Constitution or our pride in its origins,” Justice Anthony Kennedy wrote in that case, to acknowledge “the express affirmation of certain fundamental rights by other nations and peoples.”

The reasoning in those cases was greeted with catcalls from legal isolationists, as no doubt will be Justice Ginsburg’s brave speech. Foreign law will undoubtedly be cited this week as a reason why many Republicans will vote against Ms. Kagan’s confirmation. They might want to re-read James Madison’s description in the Federalist Papers of the ideal legislator: “He ought not to be altogether ignorant of the law of nations.”

So, here is the problem: international law, aka the “law of nations” ≠ laws of other states, aka “foreign law.”  International law is a set of rules that are binding upon states in their mutual relations. International law is created by states in two principle ways– by treaties and custom. From the Supreme Court on down, courts in the United States have consistently held that international law is part of US law. Article VI of the Constitution explicitly makes treaties part of the “law of the land.” It provides, in part:

This 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. (emphasis added)

Similarly, the Supreme Court has recognized that customary international law– law created through the practice of states– is part of US law. In the famous Paquete Habana case of 1990, the Court held:

International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction as often as questions of right depending upon it are duly presented for their determination.

And the Court has reaffirmed this holding time and time again.

So, the question at issue in most of these discussions is not whether “international law” should be applied by US courts, but whether the laws of other states should be applied. By using “international law” and “foreign law” interchangeably, the editorial confuses the issue.

Here is my take:

First, international law, properly understood, is a part of US law and should thus be applied by US courts whenever it is relevant– much as a statute would be applied. Needless to say, there are certain canons about interpretation, self-executing treaties, and reconciling conflicting statutes and rules of international law that will be observed by courts. But, as a part of domestic law, international law will be applied as appropriate.

Second, international law should only be used to interpret the Constitution in the same way that federal statutes might be used. It could be seen as evidence of how the Political Branches– which agreed to the rule of international law either through concluding a treaty or participating in a practice– might view relevant Constitutional provisions. This approach follows Justice Frankfurter’s concurrence in the Steel Seizure Case, where he notes that:

Deeply embedded traditional ways of conducting government cannot supplant the Constitution or legislation, but they give meaning to the words of a text or supply them. It is an inadmissibly narrow conception of American constitutional law to confine it to the words of the Constitution and to disregard the gloss which life has written upon them. In short, a systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned, engaged in by Presidents who have also sworn to uphold the Constitution, making as it were such exercise of power part of the structure of our government, may be treated as a gloss on “executive Power” vested in the President by 1 of Art. II.

In other words, if a treaty were concluded or the US acceded to a rule of customary international law relating to a particular Constitutional provision, such treaty or custom could be seen as indicating that the Political Branches desired to interpret the Constitution in a particular war. Not all scholars of Constitutional law would agree with Frankfurter’s approach to interpretation, but it is certainly a respected understanding.

Third, “foreign law,” i.e., the laws of other states, never establishes a precedent with respect to any aspect of US law, except one– treaty interpretation (see below). This means that the laws of other states– non-US court decisions, non-US statutes, etc.– never establish a precedent for Constitutional interpretation or statutory interpretation. Certainly– courts can look to them for “good ideas.” Indeed, courts have historically looked at all kinds of things for good ideas– the Bible, Shakespeare,  and popular songs. So why not non-US courts or laws?

Fourth, there is one area where US courts consistently look to non-US court decisions and non-US laws– treaty interpretation. Writing for the Supreme Court in Zicherman v. Korean Air Lines in 1996, Justice Scalia explained:

Because a treaty ratified by the United States is not only the law of this land, see Const., Art. II, §2, but also an agreement among sovereign powers, we have traditionally considered as aids to its interpretation the negotiating and drafting history (travaux préparatoires) and the post-ratification understanding of the contracting parties.

In his dissent in Olympic Airways v. Husain, Scalia elaborated:

We can, and should, look to decisions of other signatories when we interpret treaty provisions. Foreign constructions are evidence of the original shared understanding of the contracting parties. Moreover, it is reasonable to impute to the parties an intent that their respective courts strive to interpret the treaty consistently.

So, that would be my view.

In the meantime, we clearly do need more required courses on international law– at least so those who write about it can understand the difference between “international law” and “foreign law.”

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Welcome! Who am I?

Anthony Clark Arend is Professor of Government and Foreign Service at Georgetown University and the Director of the Master of Science in Foreign Service in the Walsh School of Foreign Service.

Commentary and analysis at the intersection of international law and politics.