CONTENTS

I.      THE SOURCES OF INTERNATIONAL LAW
 

            Article 38 of the Statute of the International Court of Justice defines the sources of international law.  Look at them in order, to find the law.

First, look to treaties and other bilateral agreements to which sovereigns are signatories, and which govern the issue.

Second, look to multinational agreements among sovereigns, which govern the issue.

Third, look to customary international law.

a.       General practices of states, accepted as if they were law.

b.       Followed not out of habit or expediency, but because considered law.

Fourth, look to general principles common to mature legal systems.

Fifth, look to subsidiary determinations of law (e.g., Supreme Court decisions).  Cases are important.  They are used in real life.

CUSTOMARY INTERNATIONAL LAW

Customary international law is something done as a general practice — not because it is expedient or convenient, but because it is considered law, out of a sense of legal requirement (opinio juris).

Element 1:  General practice.

Element 2:  States do it out of a sense of legal obligation.

What you do becomes precedent.  Your actions have a legal effect, even though you didn’t actually create a legal document.

Any order or document issued by any government entity can be used as precedent!

The Paquete Habana case relied on edicts and agreements as far back as 1403.

Even when no binding document exists, there is such a thing as estoppel.  White House memos can be just as precedental as a treaty!

Whenever considering whether something is custom, ask the following:

What constitutes state practice?

How much practice is required?

How much consistency is required?

Inconsistent state practices can be ignored if you look at the big trend.

Are dissenting and non-participating states bound by custom?

Do regional and special customs involve different requirements?  May a special custom (one that conflicts with general custom) bind a state that has not supported it?

What evidence is required for opinio juris, the requirement that practice be accepted as law?

May treaties be invoked as evidence of customary law?  May they create it?

Is there a normative hierarchy in customary law?

Would declarations of law adopted without dissent by the UN General Assembly constitute presumptive evidence of accepted international law, regardless of actual state practice?

Would the adoption of recommended standards of conduct by the General Assembly or another representative international assembly give rise to customary law if they are generally followed by states?

Those countries with the ability to do it have more influence than others when it comes to creating custom.  The U.S. is frequently in this position.

The Paquete Habana (1900)

A case about the Rules of Engagement, going into customary international law.

Rules of Engagement — Before the military engages in an action, it is governed by standing instructions on what they can and cannot do.  These are frequently classified, of course.

The Paquete Habana and the Lola were Cuban fishing boats that were seized by the U.S. during the Spanish-American war.  The U.S. District Court said that the Navy had acted within its authority, under Federal statute.

The Cubans argued that customary international law prohibited us from seizing the ships.  The U.S. S. Ct. agreed, holding that “international law is part of out law.”

This established rule of international law had existed to protect peaceful fishermen from wartime seizures.  Coastal fishing vessels, their cargoes, and their crews, are exempt from capture as prizes of war.  (As a result, every US ROE since then has said to leave fishing boats alone if involved in the peaceful act of fishing [but not if using fish to camouflage silkworm missiles, however].)

Asylum Case (1950)

Under the Vienna Convention on Diplomatic Relations, when you get inside the walls of an embassy, you are inviolable, because others cannot go in and get you without that embassy country’s permission.  One inch outside, though, and you’re out of luck.  (There’s lots of tense chases here in DC for that reason, spies etc., and China doesn’t let people within a mile of the US embassy.)

Note, there are several Vienna conventions.  Lots of conventions of all sorts.  Be specific which ones you are referring to.

A deposed Peruvian political leader sought asylum in the Colombian embassy in Peru.  The Colombians granted asylum, and wanted to transport him through Peru to Colombia unscathed, as a matter of law.
Colombia relied on a treaty that Peru had not signed on to.  Peru claimed it had no legal obligation.

There was no bilateral agreement between Peru and Colombia.

There was no multinational agreement binding on Peru.  Peru had even repeatedly repudiated the Montevideo agreement, so that it would have the status of a nonconsenting state.

A multinational agreement can still be binding as customary international law, even if you didn’t sign on.  Only if you repeatedly repudiate it do you earn the status of a nonconsenting state. 

You do have the option of dissenting while international law is being formed, but your dissension must be active and persistent.

Don’t sit on your hands.  Make your protest.  Nobody is going to tell you to do it, you’re a sovereign.  States can do whatever they want.  You have the ability to assert your rights, if you choose, but that means you’d better do so or else you may lose the right.

Certain fundamental rules, however (such as freedom from torture, slavery, apartheid, genocide, etc.) cannot be repudiated.  They are peremptory norms.

International agreements are governed, not by contract law, but by the Vienna Convention on Treaty Law.  Under it, states can do anything they want to agree to, unless it violates a peremptory norm.

Is there a rule of customary international law binding on Colombia and Peru?

The ICJ said cases went both ways.  Colombia pointed to numerous and frequent examples where American countries allowed safe transport like this.  However, the custom was only for political expediency — it was not done out of a sense of legal obligation.

Note — “Asylum” has different meanings in international law contexts and U.S. domestic-law contexts.  It can mean leaving people alone who are under the protection of another country’s embassy (something the US refuses to do, same as Peru here).  It can also mean we won’t repatriate you to a country you fled for political/humanitarian reasons.

Mere uniformity of external regularity never justifies a conclusion of normativity.  Governments attach importance to distinguishing between custom by which they hold themselves bound, and the mere practices often dictated by consideration of expediency and therefore devoid of definite legal meaning.  The inductive reasoning that establishes the existence of custom is a tied reasoning: the matter is not only one of counting the observed regularities, but of weighing them in terms of social ends deemed desirable.

Portugal v. India (1960) — Customary relations between nations becoming binding.  (Not, by the way, related to the Anglo-Saxon concepts of adverse possession or easement.)

Portugal had territory within India, and India wouldn’t let the Portuguese move their military and ammo back and forth to the enclaves.  India asserted the rights that England had enjoyed, and the right of passage only applied to civil activities.

If you don’t take the measures to assert your rights, and protest, you acquiesce.  You may even create legal precedent for a customary international law contrary to your interests.

The major seafaring nations, for example, sail right up to the 12-mile limit when countries try to claim more sea territory.  At the very least, they object to those countries’ claims.

OPINIO JURIS — North Sea Continental Shelf Cases (1969)

Germany’s coastline was concave, so the Dutch/Danish method of equidistant lines would have reduced German sea control drastically.  Germany had actually signed an agreement to that effect at a party, but when it sobered up it decided not to ratify it. 

The agreement didn’t say it was binding upon being signed, so it wasn’t binding on Germany until it was ratified.  (Geneva Convention of 1958.)

That didn’t mean Holland & Denmark couldn’t argue that it was binding as customary international law, since everyone else was doing it.

There are 3 ways the treaty could have become binding customary international law:

The treaty re-stated a pre-existing custom.

The treaty’s rule crystallized customary law that had been in the process of formation.

The treaty’s rule generated a new customary law following its adoption.

Holland & Denmark argued that this treaty had generated a new customary law, a new norm of international law binding on everyone.

That wasn’t such a good argument, because Germany had repudiated the treaty. 

Also, there had been very little time since the treaty [customary international law can be created in a short time, but the presumption is that it isn’t]. 

Also, only a few countries were using this rule, and even then they had resorted to equidistance out of frustration, not because they felt it was a binding legal obligation.

Also, it was not apparent that the provision was a norm-creating provision.  It was a secondary provision only.

Also, the treaty permitted reservations, and many countries had made their reservations known.  That was hardly acceptance of a norm-creating law.

The ICJ therefore held that there was no customary international law for the Dutch/Danish position.

Nicaragua v. U.S. (1986).

Customary law may be a source of international law in international disputes.  It is separate from treaty law and convention law, as it must be applied even if the countries are parties to a treaty.

The court held that it is no longer okay to settle disputes with force, a customary norm.

Note — Use of force can be justified three ways: (1) self-defense, (2) enforcement under Ch. 7 of the UN Charter, or (3) pre-UN rules of necessity & proportionality [the US and a few other countries assert this third principle from time to time].

Treaties, General Principles, and Other Sources OF INTERNATIONAL LAW
 

Treaties: International agreements are governed, not by contract law, but by the Vienna Convention on Treaty Law.  Under it, states can do anything they want to agree to, unless it violates a peremptory norm.

Many countries don’t have governments that work.  But, presuming there is a government that works, one country can make an agreement with another government.

Problems are settled between the parties — apology, reparation, etc.  There are plenty of mechanisms to work out violations of international obligations.  States are grown-ups, they can deal with it.

General Principles of Law and Equity.

There aren’t that many of these: 

Promises are binding — there is an obligation to perform in good faith.

Clean hands — you can’t take advantage of your own wrongdoing.

Estoppel is always out there to slam you.  Especially if you are foolhardy enough to attach a map to an agreement (dangerous).

Never agree to a document when there is something in it you don’t understand.  It’s nice to be polite, but it is better to be right & useful than to be liked & dangerously incompetent.

Two big ones:  Considerations of Equity, and Considerations of Humanity.

All mature legal systems have equitable principles.

Meuse case,  Netherlands v. Belgium (1937).

Belgium was prevented from suing France for breaching its agreement not to build a dam, when Belgium had breached the same agreement.

Under Article 38, equity is part of international law.

Corfu Channel case, United Kingdom v. Albania (1949).

a.                   Albania, the most xenophobic country ever, with a pillbox every half mile in anticipation of an invasion that has never come, littered the Strait of Corfu with mines.  Then it didn’t tell anyone.  Some British ships got blown up, and they also fired at British ships from shore batteries.

b.                   The ICJ held that elementary considerations of humanity are binding as customary international law.  Therefore, laying mines require you to tell those who sail there.  Failing to notify violates elementary considerations of humanity.

Judicial/Subsidiary Means of Determining International Law.

Here in the U.S., we use stare decisis, unlike civil law countries.  Article 59 of the Statute of the ICJ, however, says that ICJ decisions are binding only on the parties to the dispute.

And yet, ICJ cases are cited over and over as representing international law.  Not because of stare decisis, however, but because it was a well-reasoned case that countries keep pointing to as evidence of international law.

It is not law just because the ICJ says so in one case.  It may come to be regarded as law, however.

Often, arbitration tribunals and “municipal courts” (such as the US S. Ct.) are also cited as sources of international law, even though their decisions are not binding on other countries.

Foreign law journals (not U.S. law-school journals) and the U.S. Restatement of International Law are often cited.

These are never enough by themselves — they are only academic opinions of what the law is.  They are still of some use, nevertheless.

UN General Assembly Declarations & Resolutions.

The 1789 Alien Tort Claims Act: US enforcement of foreign violations of international law

Filartiga v. Pena-Irala (2d Cir. 1980).

A Paraguayan official tortured to death a 17-year-old Paraguayan boy, because of the boy’s father’s political beliefs.  The kid’s father and sister sued in U.S. District Court!  Under the 1789 Alien Tort Statute, under which only aliens may sue, for a tort in violation of the “law of nations” (international law).

Note — We also have the Torture Victim Protection Act, which also protects Americans.

The District Court dismissed the case for lack of jurisdiction.  the 2d Circuit, however, concluded that if torture violated the law of nations, and alien could sue another alien in U.S. courts and collect damages.

To see if torture violates international law, the 2d Circuit turned to two UN General Assembly declarations. 

The Universal Declaration of Human Rights, one of the first acts of the UN, and arguably one of the greatest documents of all time (unanimous, abstentions from South Africa, USSR and other SSRs, Yugoslavia, and Saudi Arabia), and which has been embellished over time.

The 1975 Declaration on the Protection of All Persons from Torture.

A Declaration creates an expectation of adherence, and so far as the expectation is gradually justified by national practice, a declaration may by custom become recognized as laying down rules binding on all countries.

These mere declarations have been foundations for treaties and conventions which took these rights and built on them and codified them as international law.  All of them say that torture is a human rights violation.  (Time was, torture was just good police work, but no more.  Now it is universally renounced.)  Not only is this customary international law, but it is a fundamental principle that cannot be limited.

So the 2d Circuit entered a judgment, and assessed compensatory & punitive damages.  The defendant escaped the US before the judgment could be enforced, but if he or any of his property returns it is subject to jurisdiction.  (We actually deported him.  Communications between the agencies are not fantastic.)

This was not a suit against the Paraguayan government because of an official actor — Paraguay had denounced the defendant, even though he had been acting under the color of authority.

As result of this case, the Alien Tort Statute has been used more frequently.  See the judgment entered against Radovan Karadzic [70 F.3d 232 (2d Cir. 1995)] for genocide.  (That case has a good discussion of the sources of international law and affirms that these are real rules binding on us, and states that certain forms of conduct violate the law of nations regardless of whether undertaken by those acting under the auspices of a state or only as private individuals.)

Western Sahara Case (1975) — General Assembly Resolutions cited for the proposition that free-association and self-determination are norms of international law.

Texaco Overseas Petroleum et al. v. Libyan Arab Republic (1977) — The legal value of UN resolutions can be determined on the basis of the circumstances under which they were adopted, and by analysis of the principles they state.

Arbitration decision.  Texaco went to Libya, planned for the worst and got an agreement that Libya wouldn’t nationalize the oil fields or refineries.

Note — A contract between a corporation and a foreign government is not international law.  It’s much better to get an agreement between the US government and the foreign government.  Otherwise, international legal standards won’t apply unless there is some other way to get international jurisdiction, and you can easily wind up getting screwed by the foreign government.

Aside — Be wary of even the most highly-paid corporate lawyers’ advice on international law matters.  In the experience of professional diplomats, many if not most corporate lawyers are clueless about the realities of international law. 

Texaco’s lawyers put in the contract that the applicable law was Libyan law that was in accord with international law principles, and any blanks would be filled with international law, and disputes would be decided by international arbitration, not by the Libyan courts.

Libya tried to nationalize the fields and refineries, so they went to the International Arbitration Court.  The court said that UN resolutions are of varying weight.  Not all represent clear agreement.  But Resolution 1803 of 1962 was a clear agreement that Libya would have to compensate Texaco.  It had no unfettered right to take the facilities without compensation. 

They had to find Libyan law, but Surah 5 of the Koran was part of it, and it said you had to perform your contracts.

Note — There is no generally-recognized right to property in international law.

II.      THE RELATIONSHIP OF INTERNATIONAL LAW TO DOMESTIC LAW

                                  AND

THE RELATIONSHIP OF INTERNATIONAL LAW TO U.S. FOREIGN RELATIONS LAW
 

            The US is truly a nation of laws, especially as compared to many other countries throughout the world.  A problem with that, however, is that often our law is contrary to international law.

That is not an excuse for a violation, by the way.  We may be obligated by our law to not perform a promised duty, yet we will be liable for the breach.  Shouldn’t have undertaken the obligation.  Sometimes it happens because of internecine squabbles, but you’re still going to have to compensate for the violation.
The principle that a state cannot plead its own law as an excuse for non-compliance with international law has long been established and generally recognized.  In 1887, e.g., Secretary of State Bayard said:  “It is only necessary to say, that if a Government could set up its own municipal laws as the final test of its international rights and obligations, then the rules of international law would be but the shadow of a name and would afford no protection either to States or to individuals.  It has been constantly maintained and also admitted by the Government of the United States that a government can not appeal to its municipal regulations as an answer to demands for the fulfillment of international duties.  Such regulations may either exceed or fall short of the requirements of international law, and in either case that law furnishes the test of the nation’s liability and not its own municipal rules.”
Article 13 of the Draft Declaration of Rights and Duties of States adopted by the International Law Commission in 1949 says:  “Every State has the duty to carry out in good faith its obligations arising from treaties and other sources of international law, and it may not invoke provisions in its constitution or its laws as an excuse for failure to perform this duty.

That standard makes sense.  Nazis couldn’t defend their actions by saying they did what the Reichstag said to do, and neither can you.

Some other countries’ constitutions say that international law is part of their law, and that in the event of a conflict international law trumps as a matter of municipal law.

In Germany, e.g., if you can prove an international law violation, you win in German court.  International law takes precedence over municipal law.

See also Italy, Austria, Greece, and France.

Other systems, like the US, don’t acknowledge international law as precedental over municipal law.

See Switzerland and the Netherlands.

Lots of systems leave open the question of which rules prevail.

Also, in many countries, the substance of international law is not an issue of fact for the jury, but a matter of law for the court.

We are bound to international agreements, even though our convoluted municipal law may result in failure to keep our end of the deal.  In the United States, there are conflicts at times between our law and international law. 

Customary international law is NOT the supreme law of the land here.  Only treaties are.

So customary international law loses to municipal law.  But first do all you can to interpret the law in such a way that there is no conflict.

Customary international law is still important — it just isn’t as strong as treaty law.

Treaty law is even more complicated. 

Treaties prevail over inconsistent state laws.

The Constitution prevails over inconsistent treaties.

When a treaty conflicts with a federal statute, the most recent one prevails.  And the treaty would have to be either self-executing or already executed by Congress.

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You have to break this all down into customary international law and treaty international law. 
The United States is very complex here.

Customary international law.

In the Paquete Habana case, our courts applied customary international law, but note that it did not involve law contrary to US law.  No controlling treaty or municipal law existed, and the S. Ct. said that, had a treaty or executive/legislative/judicial law existed, it would have trumped customary international law.

The Constitution refers to international law in Article I § 8: Congress has the power to define and punish offenses against the law of nations.  So the framers knew that international law existed.

Article 6 says the supreme law of the land includes the Constitution, laws made in pursuance thereof, and treaties made in the name of the US.  Period.  Not state law, federal common law, judge-made law, etc.  You cannot plead “supreme law of the land” to excuse a breach of international law.

Murray v. Schooner Charming Betsy (1804) — An act of Congress is never to be construed in a way so as to conflict with international law, if there exists a construction that doesn’t conflict.

When there is indeed a conflict, we must apply the supreme law of the land, which the President is sworn to uphold.  There is authority for the President, when there is a true conflict, to apply US law over international law. 

Courts don’t involve themselves in conflicts here — it’s a “political question” for the executive branch.  Under the Act of State doctrine, because of separation of powers, the courts just stay out of it.

There are potential conflicts between the executive and legislature, between the feds and the states. 

The Constitution makes the President extremely powerful — Chief Executive Officer of carrying out all executive functions, monstrous powers in foreign affairs, Commander in Chief of armed forces, head of state embodying the country in international activities. 

The President also has an interesting power to receive ambassadors and other public ministers.  This has been read to mean that the President alone has the power to recognize another country.

The legislature also got some international powers: it can borrow money, regulate customs, nationalization, define and punish felonies, maintain & arm the navy, make rules for the conduct of the armed forces, power of the purse for the executive to pay for what it wants to do, and the power to declare war.

Note — Regarding declarations of war, there haven’t been all that many declared wars in the many conflicts in our history.  Some say that a treaty where we say we will protect another country is a de facto declaration of war.  The NATO treaty doesn’t require US commitment of forces, only such action as we deem necessary to take care of a situation, because Congress was and remains jealous of its power to declare war.

The judiciary doesn’t have much, but it does have responsibility for interpreting the Constitution.

The 10th Amendment may or may not give the states and the people some say.

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Treaty international law.

Know the difference between Ratifying a treaty vs. Implementing or executing it.  Different things.

A treaty that says “the parties agree to …” is binding.  A treaty that says “the parties intend to …” is not binding.

Treaties are not made by Congress, but only by the President with ratification by the Senate.  Nevertheless, those treaties become the law of the land, regardless of what the House of Representatives or the Supreme Court might have said about it.  The only check on this power is where powers are given to Congress as a whole — the power to declare war is one such power, which Congress guards jealously.

If a treaty makes X a crime, Congress alone has the power to decide the punishment — the treaty provision has to be executed by Congress.  Such provisions thus are never self-executing.

Missouri v. Holland (1920) — Conflict between a treaty and state law.  Unlike acts of Congress, which are the supreme law of the land only if constitutional, treaties are de facto law of the land, and are binding on the states as well as on the federal government.

We had a treaty with England/Canada protecting migratory birds.  Missouri sued to prevent a federal game warden from enforcing the treaty.  The S. Ct. held that state powers fall whenever they conflict with the treaty. 

This principle has been stated even more dramatically in years since.  It is a slam dunk: the state loses.  Under Belmont, state lines disappear; states don’t exist so far as treaties and executive agreements are concerned.  The federal national interest is so supreme that treaties and executive agreements always trump state laws.

Note — The rule doesn’t apply when state action is required to implement a treaty.

Reid v. Covert (1957) — If a treaty is contrary to the Constitution, then the treaty fails.  The Constitution trumps.  Treaties and executive agreements have the possibility of violating a constitutional provision and thus being invalid.

Watch out for clauses in international agreements that are contrary to the US Constitution:

Interference with the power to declare war.

Prohibitions on free speech.

Restricting the rights of aliens (recall that the Constitution protects persons, not citizens).

Denying due process of law.

Denying equal protection.

Taking private property.

Limiting the right to travel.

Just because a treaty is agreed-to, it may still need a little more to make it the supreme law of the land.

Foster & Elam v. Neilson (1829) — A treaty is equivalent to a legislative act whenever it is “self-executing.”  That means it operates of itself without aid of any legislative provision.  But, when the terms are contractual, the parties must execute it, so it requires an act of the legislature.

The US needed access to the Gulf of Mexico, and Napoleon needed money for his wars, and so was willing to sell the whole Louisiana tract for $15M.  But the land had French subjects and Spanish subjects.  Titles were granted to different people for the same land, then the US got it all.  In order to secure the rights and privileges of the people on the land, the US, Spain and France needed a treaty to settle it.

The treaty was alleged to give the King of Spain power to grant title to land even after the US took control.  The language said that such a grant “shall be ratified and confirmed.”  Did that meant it was automatically ratified, or did it need an additional act of Congress.

The treaty was contractual.  Therefore, the contract must be actually performed to get the end result.  The treaty merely stated the intent of the parties to confirm a grant of land.  It envisioned an additional act of the legislature to implement it before the grant was confirmed.

Self-executing treaties vs. Non-self-executing treaties.

An international agreement cannot take effect as domestic law without implementation by Congress if the agreement would do something that is within the exclusive law-making power of Congress.

Thus, an international agreement providing for the payment of money by the US requires an appropriation of funds by Congress.

An international agreement cannot bring to US into a state of war.

An international agreement cannot make something a US crime.

An international agreement cannot raise revenue by imposing a new tax or tariff, but it can affect tariffs with “most-favored-nation” and similar clauses.

If an international agreement is silent as to whether it is self-executing or not, and the intention of the US is unclear, then look to things said by the White House/State Department or by the Senate in ratifying it.

If a provision is non-self-executing, then the US is under an international obligation to adjust its laws and institutions (if necessary) to give effect to the agreement.  (We’d get a reasonable time to do so before being held in default.)

Fujii v. California (1950) — A California statute forbade aliens ineligible for citizenship from owning or using real estate.  The plaintiff relied on the UN charter, in part, claiming that the statute violated human rights.  This was held not to be enough, however.  The charter was not a binding set of rules without some other act.  (He won on 14th Amendment grounds, anyway.)

Any agreement which itself requires further legislative enabling action by the countries is non-self-executing.

Note — I’m not talking about “ratification” by the parties.  Ratification is self-execution.

If you write in a provision describing how the US will fulfill its obligations on its side, that’s fine, but that’s not binding as part of the international legal obligation.

You do have some power to go into who implements what.  It’s just a problem when the unilateral obligation is not rationally-related to the international agreement itself.

Note well — If the agreement makes it enter into force, and the provision is self-executing, then it is binding even if it hasn’t yet been implemented by the legislature.

Whitney v. Robertson (1888) — In the event of a conflict of a treaty with United States statute, the one that is most recent in time prevails.

The US and the Dominican Republic had a “most-favored-nation” agreement, where the US would never give another country a better deal on sugar tariffs.  If another country did get a better deal, then the Dominican Republic would get the same treatment.  The D.R. was utterly dependent on sugar exports, so it was important that the treaty say they’d always get the lowest tariffs on sugar.

Congress then let Hawaii export sugar duty-free.  The D.R. objected to the duty its had to pay, and paid only under protest.

The S. Ct. acknowledged that treaties and statutes are both the law of the land.  When there is a conflict, it held, then the later in time controls. 

The statute violates the international agreement, sure, but the US law is whichever is most recent.  The D.R. still has the right to reparations or other satisfaction, though.

Note — A more recent treaty overtakes inconsistent prior legislation automatically only if it is a self-executing treaty.  Otherwise, it overtakes the legislation upon the passage of implementing legislation.

Charlton v. Kelly (1913) — A breach of a treaty by one party makes the treaty voidable by the other party.

The US and Italy had a mutual-extradition treaty.  Usually, states don’t agree to extradite their own natives, but this agreement said that’s what the parties would do.  Italy refused to extradite its own nationals to the US, however.

An American was going to be extradited to Italy under this treaty, and argued that because Italy had breached the agreement it was void, and so there was no need to extradite him.

The Supreme Court held that a material violation of an international agreement doesn’t automatically void the agreement.  A treaty is binding until abrogated, so it was still binding and the US had to perform.

The executive branch decides when a treaty has been abrogated.  In this case, they felt that it wasn’t worth it.  So the American got extradited to Italy.

III.    EXECUTIVE AGREEMENTS

95% to 99% of all international agreements to which the United States is a party are Executive Agreements.

The Constitution doesn’t refer to executive agreements, but they have been entered into from the beginning.

Not the same as a treaty, but in terms of international law there is no difference.

In terms of municipal law, the difference is that executive agreements are not submitted to the Senate for approval.  Treaties must be.

The 1972 Case Act requires that Congress be given a chance to look at executive agreements within 60 days.  1 U.S.C. § 112b.  All that happens, though, is that Congress recognizes the existence of the executive agreement — there is no need for congressional approval.

If an executive agreement conflicts with the Constitution, the Constitution prevails.

If an executive agreement conflicts with state law, state law loses.

United States v. Belmont, 301 U.S. 324 (1937) — The Soviets nationalized everything in Russia.  American companies’ property was seized.  The President froze soviet bank accounts, as always, so that an agreement could be made where the soviets would drop their claims to the accounts, which would then be distributed among the United States citizens whose property had been taken.  Pennies on the dollar, but at least it would be something.  In exchange, the President recognized the soviet government. 

Belmont was a private banker doing business in New York state.  The United States sued to recover the soviet deposits with him.  The lower court held that this would conflict with the interests of New York state, so it couldn’t be done.

The S. Ct. held that the feds have sole and complete power over international affairs, so even if the result of federal action would be contrary to the controlling public policy of the state, the state still loses.

New York didn’t have the power to recognize foreign governments.  Only the President could do that.

United States v. Pink, 315 U.S. 203 (1942) — same holding.  Whenever there is a conflict between an executive agreement and state law, state law loses.  These are huge executive powers.

Nevertheless, it is important to establish good relations with state authorities who do things, because they are probably going to violate some executive agreement along the line if they’re unaware of it.

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When the President needs an executive agreement, he can do one of three things:

1. If the agreement is crucial to international and national agreements, he should get a treaty.

UN membership, NATO, extradition, taxes, postal matters.  Only the really big commitments, nothing else.

2. The President may just sign the agreement as an executive agreement, based either

a. on his sole powers under the Constitution, or

b. with congressional acquiescence if based on shared powers.

Regardless of which basis it is, neither kind of executive agreement requires congressional approval.

The statute books are full of acquiescences by Congress to let the President make executive agreements in certain areas.

So what happens when, even though the basis is shared powers, Congress was silent, and the President still did it?

What happens when Congress is vocally opposed to it, and the President still does it?

3. Sometimes, in certain economic agreements, the President knows he could do a treaty or an executive agreement, but instead he does a fast-track agreement.

The President makes the agreement, and it goes to the House and Senate for a strict thumbs-up or thumbs-down.  They cannot make any modifications.

These are rare.  NAFTA, GATT.

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Purely Executive Powers, versus Shared Powers.

There are some, albeit very few, areas where the President has powers that he doesn’t have to share with Congress.  Congress’ opposition or acceptance is irrelevant — regardless of how Congress votes, the President alone can do these things, such as:

Recognition of foreign governments.

Receiving ambassadors.

Most presidential powers here are shared with Congress.  So most executive agreements are Congressional-Executive Agreements.  Congress has either supported it or acquiesced to it.  The President does it with Congress’ blessing.

Recall Youngstown Sheet & Tube, Truman’s steel seizure case.  Truman committed many troops to Korea, 50,000 of whom would die there, without a peep from Congress yea or nay.  While that was going on, a steelworkers’ union strike was planned.  Hours before the strike, Truman ordered the executive branch to take over the steel mills and keep them running.  The S. Ct. said his power to do this had to come from either the Constitution or a statute.  No statute, not even any act of Congress existed from which this power could be implied.  Justice Jackson’s opinion broke it down well (he was freshly back from the Nuremburg tribunal).  There was lots of overlap between the powers of the executive and the legislature here, which created a “zone of twilight” (soon the be the name of a TV show) in between the areas where each branch clearly trumps.  The lawyer’s job is to decide whether the President can go ahead or not.  This case had many different opinions, only three of which allowed the President to go ahead and do it.  So Truman lost — the President did not have the power to seize the steel mills.  Only Congress could do it.

When there are shared powers, it is important to know whether Congress has spoken on the area.

Usually, Congress winks at the executive’s actions, or actively supports them.  But this isn’t always the case.

Merely because Congress has powers in an area, that doesn’t mean that the President doesn’t. 

Apply this analysis to conflicts in foreign affairs: 

Take, for example, the nonproliferation of nuclear weaponry.  Nothing is more important — tons of it is pouring over borders.  Nuclear devices are all over.  They aren’t technically weapons, but they’re just as deadly.  Chemical & biological weapons are out there, too, and they’re no joke either.

Because we aren’t part of an exclusive club here any more, Congress justifiably is anxious that something be done about it and fast.

So Congress gives the executive branch funding and marching orders to do “something” about it.

Executive agreements are handy tools for doing something about it.

What if Congress hasn’t spoken on a subject, and the President makes an executive agreement?

The President has a good record here, so it’s still okay.

If Congress vocally opposes it, however, and the executive agreement conflicts with a statute, then there’s a problem.

The standard is not the same as a conflict between a statute and a treaty.  If the President lacks the sole constitutional authority to make this executive agreement, and Congress shares the authority, then Congress prevails.

Only once has a court addressed this problem.  In 1948, the 4th Circuit decided Capps, where Congress had passed a law to protect farmers.

The law said that should the President detect a possible trade problem, then the President was to order an investigation.  If the investigation turned up a problem, there were certain things he could then do.

Our ambassador to Canada noticed that a lot of potatoes were pouring in to the United States from Canada.  The Secretary of State made an executive agreement with Canada to permit unlimited potatoes, but only for seed purposes, not for eating.  The Secretary of State took it upon himself to do this without going through the steps Congress had laid out.

This is clearly a shared power — commerce and trade.  Congress had spoken — don’t do X without doing Y.

Of course the Secretary of State likely had no knowledge of the statute, as it was only a few months old.  The court nevertheless still held that the executive agreement failed because Congress had said not to do it.

There was much citing of Youngstown. 

There was another case in 1981, Dames & Moore v. Regan, but it really wasn’t on point here. So Capps remains the only precedent here.

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IV.    STATES

Definition.

The nation-state is the fundamental entity of international law.  States are not the only actors — there are also people, corporations, international organizations, etc. — but states are the big ones.

A “government” is not the same thing as a “state.”

A government is a separate entity from the state.

Four Requirements:

1. DEFINED TERRITORY, OVER WHICH THE SOVEREIGN EXERCISES CONTROL.

Not every single river, stream and rock need be defined.  Border disputes are common.

Emerging states — It is a common principle that emerging states inherit the territorial borders they had before.  Usually, the only other alternative is bloodshed.

The former Yugoslavia did have a border agreement at first — each entity would retain the borders it had prior to independence.  Had the nations of the world enforced that border agreement, much of the bloodshed and atrocities would have been avoided.[1]

Still, the “all bets are off” approach seems to be the exception, rather than the rule, for emerging states.

2. DEFINITE POPULATION OF PEOPLE.

Can be a few hundred only, but you do need some people.

3. UNDER CONTROL OF ITS OWN GOVERNMENT.

If another state governs you, you’re not a state yourself.

4. CAPACITY TO ENGAGE IN INTERNATIONAL DEALINGS WITH OTHER STATES.

More on the 4 requirements:

States can give up any of these.  Liechtenstein, for example, has given p all foreign-affairs power to Switzerland, yet it is still a state.

There was a U.N. meeting to determine who was to pay for a certain project.  The Swiss ambassador ran over to the Liech. seat and argued that the U.N. should pay for it, then ran back to the Switz. seat to argue that the beneficiary nations should pay for it.

You have to make decisions on whether an entity is a state or not, if you are to know what to do in a situation.

Usually, this is not a problem.  But sometimes...

The question of statehood arises particularly in the following situations:

Break-up of an existing state into a number of states.

Secession or attempted secession by part of a territory of an existing state.

Cases where foreign control is exerted over the affairs of a state, whether by treaty, unilateral imposition of authority, or delegation of authority.

Cases where states have merged or formed a union.

Claims by constituent units of a union or federation to the attributes of statehood.

Territorial or non-territorial communities which have a special international status by virtue of treaty or customary law, and which claim statehood for certain purposes.

The Restatement (Third) § 206 states that the capacities, rights and duties of states include the following:

Sovereignty over its own territory, and general authority over its nationals.

Status as a legal person, with the capacity to:

own, acquire, and transfer property;

make contracts and enter into international agreements;

become a member of international organizations; and

pursue, and be subject to, legal remedies.

The capacity to join with other states to make international law, as customary law or by international agreement.

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