Challenging history: the role of international law in the U.S. legal system.

• Author: Shelton, Dinah L.

It is a privilege to participate in honoring the great scholar, teacher, and friend Professor Ved Nanda. Under Professor Nanda's leadership, the University of Denver has developed a program that is recognized as a major contributor to many subject areas of international law: human rights, economic development, and international environmental law to mention just a few. Professor Nanda's own scholarship is always on the cutting edge, helping to define the international agenda and tell us what we will be thinking a year from now.

Professor Nanda has also provided long and invaluable service to the American Society of International Law. He chaired the 75th annual program committee and served on the executive council, research projects and committees. Most memorably, together with Professor James Nafziger, we wrote a Jessup moot court problem addressing the international protection of cultural property based in part on the still unresolved dispute over the Elgin or Parthenon Marbles.

Professor Nanda and his wife Katharine have also provided long and valued friendship. Whether consulting over an academic issue, providing hospitality in Denver, or driving through a snowstorm to spend time with a snowbound traveler at the old Stapleton airport, they have always supplied abundant kindness and generous support.

This contribution in honor of Professor Nanda, based on the 2011 Myers McDougal lecture, examines the place of international law in the United States legal system, its importance in the past, and its diminishing role today. The conclusion argues for continuing to apply the legal precedents that give effect to international law as a part of U.S. law, in our national interest and as intended by the authors of the Constitution.

1. AT THE ORIGIN

While accepting that the Constitution is a living instrument and must be applied as such, the original text and writings contemporaneous with its drafting are the critical starting point to understanding our legal system and how it was intended to function. The place of international law begins with Article VI of the Constitution:

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. (1) The importance of Article VI and other references to international law were discussed by the constitutional drafters in the Federalist Papers. (2) These writings enhance our knowledge of the original understanding of the role of international law in the U.S. legal system, in some instances providing a stark contrast with current attitudes.

John Jay, Supreme Court Justice and negotiator of the Treaty of Paris that legally settled U.S. independence from Great Britain, wrote in the third Federalist Paper that:

The just causes of war, for the most part, arise either from violations of treaties or from direct violence. It is of high importance to the peace of America that she observe the laws of nations towards all [foreign] powers, and to me it appears evident that this will be more perfectly and punctually done by one national government than it could be either by thirteen separate States or by three or four distinct confederacies.... Because, under the national government, treaties and articles of treaties, as well as the laws of nations, will always be expounded in one sense and executed in the same manner.... (3) Madison added that "[i]f we are to be one nation in any respect, it clearly ought to be in respect to other nations." (4)

Hamilton and Madison thereafter spoke to the qualifications to be desired for those elected to Congress:

No man can be a competent legislator who does not add to an upright intention and a sound judgment a certain degree of knowledge of the subjects on which he is to legislate.... .... .... A branch of knowledge which belongs to the acquirements of a federal representative ... is that of foreign affairs. In regulating our own commerce, he ought to be not only acquainted with the treaties between the United States and other nations, but also with the commercial policy and laws of other nations. He ought not to be altogether ignorant of the law of nations ... (5) An attention to the judgment of other nations is important to every government for two reasons: the one is, that, independently of the merits of any particular plan or measure, it is desirable, on various accounts, that it should appear to other nations as the offspring of a wise and honorable policy; the second is, that in doubtful cases, particularly where the national councils may be warped by some strong passion or momentary interest, the presumed or known opinion of the impartial world may be the best guide that can be followed. What has not America lost by her want of character with foreign nations; and how many efforts and follies would she not have avoided, if the justice and propriety of her measures had, in every instance, been previously tried by the light in which they would probably appear to the unbiased part of mankind. (6)

Jay then returned to speak of presidential powers, including the treaty-making power, and the role of treaties in the U.S. legal system:

Some are displeased with [the treaty-making power], not on account of any errors or defects in it, but because, as the treaties, when made, are to have the force of laws, they should be made only by men invested with legislative authority. These gentlemen seem not to consider that the judgments of our courts, and the commissions constitutionally given by our governor, are as valid and as binding on all persons whom they concern, as the laws passed by our legislature. All constitutional acts of power, whether in the executive or in the judicial department, have as much legal validity and obligation as if they proceeded from the legislature.... It surely does not follow, that because they have given the power of making laws to the legislature, that therefore they should likewise give them power to do every other act of sovereignty by which the citizens are to be bound and affected. Others, though content that treaties should be made in the mode proposed, are averse to their being the supreme laws of the land. They insist, and profess to believe, that treaties like acts of assembly, should be repealable at pleasure. This idea seems to be new and peculiar to this country, but new errors, as well as new truths, often appear. These gentlemen would do well to reflect that a treaty is only another name for a bargain, and that it would be impossible to find a nation who would make any bargain with us, which should be binding on them absolutely, but on us only so long and so far as we may think proper to be bound by it. They who make laws may, without doubt, amend or repeal them; and it will not be disputed that they who make treaties may alter or cancel them; but still let us not forget that treaties are made, not by only one of the contracting parties, but by both; and consequently, that as the consent of both was essential to their formation at first, so must it ever afterwards be to alter or cancel them. (7) Finally, Hamilton spoke on the obligations of the federal judiciary:

The Union will undoubtedly be answerable to foreign powers for the conduct of its members. And the responsibility for an injury ought ever to be accompanied with the faculty of preventing it. As the denial or perversion of justice by the sentences of courts, as well as in any other manner, is with reason classed among the just causes of war, it will follow that the federal judiciary ought to have cognizance of all causes in which the citizens of other countries are concerned. This is not less essential to the preservation of the public faith, than to the security of the public tranquility. (8) These writings clearly suggest an awareness of the importance of respecting international law and giving it effect in our legal system. Official acts followed along the same lines, especially regarding customary international law or the law of nations, as it was then known. U.S. Attorney General Randolph, a member of the Constitutional Convention, issued an opinion on this matter because customary law was not addressed in the same detail in the Constitution, as were treaties. (9) Randolph stated officially that, "The law of nations, although not specially adopted by the constitution or any municipal act, is essentially a part of the law of the land. Its obligation commences and runs with the existence of a nation, subject to modifications on some points of indifference." (10)

While the leaders in federal government were unanimous in their thinking, in practice, then as now, debates over international law were contentious, at least when the self-interest of various states or sectors of the public were involved. The first major incident occurred after George Washington sent John Jay to England to negotiate the terms of independence from Great Britain. (11) By February 1795, reports arrived that Jay had concluded the agreement and Washington convened a special session of Congress on June 8 of that year to debate approval of ratification. The treaty contained trade concessions and England consented to abandon forts on the Great Lakes, but other provisions, such as compensating loyalists for confiscated property, were less popular. Indeed, Washington tried to keep the terms of the treaty in, as he described it, "impenetrable secrecy" until June. The treaty passed with exactly two-thirds of the Senate voting in approval but before Washington could sign it, the text was leaked and uproar ensued. "By the July Fourth celebrations, Jay had been burned in effigy in so many towns that he declared he could have traversed the entire country by the glare of his own flaming...