Presidential Authority to Displace Customary International Law

• Author: Major Richard Pregent
• Pages: 05

I. INTRODUCTION

At the basis of internasional law lies the notion that a state occupies a definite part of the surface of the earth, within which it normally exercises, subject to the limitations imposed by international law, jurisdiction over persons and things to the exclusion of the Jurisdiction of other states?

On June 21, 1989, the Department of Justice (DOJ) issued an opinion setting forth the President's authority to order the Federal Bureau of Investigation (FBI) to arrest an individual far violations of United States law in a foreign country without that country's cansemz This opinion reversed the position taken by DOJ on this same issue in March 1980, at the end of the Carter Admin~stration.~

Both

opinions were detailed analyses of the FBI's statutory authority to investigate' and to arrest.j

The 1980 opimon was written by John Harmon and concluded, in part, that "[a]lthough the question is not free from doubt, we conclude that the Bureau [FBI] only has lawful authority [to seize an

individual in a foreign country for violations of United States laas] when the asglum State acquiesces to the proposed aperanon ' ' 6 The opinion referred to a rule of statutory constructmn that would pro-vide ' aii reasonable and necessary means" far a gniernment official to carry out a statutonly imposed duty Harmon concluded, howler that It wauid not be ' wasonable TO assume the Congress con ternplated the violation of inlernanonal lan m hen it authorized rhe FBI to conducr arrests

The 1980 DOJ opinion also relied on a second analgtical basa. case law- Harmon quoted Chief Justice Manhall's opinion in Schuoner EC chazge 1 McFadden "All exceptions. therefore. IO the full and complete power of a nation wnhm its own territories. must he traced up to the consent of the nation itself They can flow from no other source 'lo

Harmon implies that the Cnited States, or an) saverngn state for that matter. does not ham The aurhorlty to violare the territorial integrity of another state The result is that "the powers of the Bureau [FBI] are delimited by those of the enabling ioreregn 81

Kiiham Barr. the author of the 19R9 opmion. testified before the Suhcommlttee on Civil and Constitutional Rights of the House Judiciary Committee on Kovember 8. 1989." in his prepared statement. Barr conceded that seizing an indiridual charged with a violation of L-nited Slates la^ within another states territory without that

theless. he asserted that ' [ulnder our constitutional system, the ex ecutive and iegislatire branches. acting wthm the scope of their respective authorit? mag take or direct actions which depart from customary mrernatmnal la\%

state's apprmai W""1d nolate customary Inrernat,"nal law sever-

''I9

The 1089 D0.J opinion repudiated the 1980 DOJ opinion and The earlier opinion's conclusmn that the FBI's authority to conduit forcible arrests beband United States terntorg

19901 PRESIDEKT AND INTERXATIONAL LAU'

1s limited by customary internationai law Barr further testified that the authority to violate customary international law existed m the form of domestic case law, the Constitution, and recently enacted stat " t e s .

The DOJ has refused to releme the 1089 0pm1on.l~ This makes a detailed critique difficult, but not impossible. Though the political ramifications of the current DOJ opinion are substantial, this analysis will focus only on the legal bases of the 1989 DOJ opinion and the even more basic question of whether domestic legal authority to violate international law 1s actually required to deal with fugitives from American justice

11. ANALYSIS OF THE DOJ OPINION A. DOMESTIC CASE LAW

The threshold question concerns the relationship of United States domestic iaw and customerg mternanonal law, At one end of the analytical Spectmm is the concept of monism Under this analytical theory. both domestic and international law' are pan of a single legal system. If a conflict arises between domestic and international law, international law takes precedence Domestic courts are compelled to enforce international law regardless of any contraq action by the State's executn'e or legislative branches.le At the other end of the spectrum is dua1irm.l' This school of thought views domestic and in^ ternational law as separate and distinct iegai systems The interrela-tionship between these systems within a given state is a question for domestic resolutmn.ld Quite clearly, the United States stands squarely in the dualism camp.

In his statement, Barr cites Schooner Eschonge 1: McFaddm,lo the same case that DOJ relied on m the 1980 opinion. to demonstrate that customary international law does not serve as an absolute restriction on the United States' sovereign capacity to act. In Schooner, decided in 1812, the Supreme Court concluded that customar) international law was indeed part of the domestic iaa of

"Id

"11 LS (7 Cranchj 116 (1813)

Barr also cites Bmvn I' Umted States 22 Brow,n involved the sel~ure of cargo from a ship taken 1x1 United States waters during the War of 1812. The Supreme Court found that customary international law applied to the controveny and ordered that restitution be made The Court described customary international law as a guide which the sovereign follows or abandons at his wi1i"23

These cases established that dualism IS Umted States law. international law can be displaced domestically. Many issues remained to he settled, hauever Left in doubt were the matten of the kind of international lau that could be displaced the governmental em tities that could displace this law. and how this displacement might be accomplished

Barr relies on he Paquefe Habana2* to demonstrate that the Prea-dent h a the authority to displace customsly international law 26 This

case involved the seizure of private fishing iessels by the United States 6aby during the Spanish~Arnerican

War. The Supreme Court found that, under Customary international la\., these vessels should not have been seized. and the Court ordered the proceeds of chex sale turned over to their original owners.z6

It ii Barr's position that, ~n this case the Court established a posi tmn for customary international law within the hierarchy of United States domestic law with the following language.

International law 13 part of our law, and must be ascertamed and admlrustered by the COURS

OfJUStlCe of appropnate Junrdlctmn For this pulpose, where there 1s no treaty and no con^

trollmg executive or legdative act or judicial decision resort must be had to the customs and usages of cwihzed nations li

SO

19901 PRESIDENT AND IiiTERNATIONAL LAW

Barr contends that these wordsevidence the fact that the executive and legislative branches, "at least as respec- our domestic law," can "supplant legal norms otherwise furnished by customary international law"2B

This same quotation is described as "opaque and ambiguous" dictum by Professor LOUIS Henkin.28The Supreme Court used this phrase nearly a century ago and has not addressed the issue since. Henkin points out that only one court relied on these words to subordinate customary international iaw to a "controllmg executive or legisiatwe act,'' and this occurred eighty-six yean after The Paqwete Habana decision.30

The Papuete Habana was an offshoot of a series of Supreme Court cases decided at the end of the last century that wrestled with the displacement of international law within the United States TheChtnese Esclvszon Cams2 of 1889 was the last of these. It dealt with a congressional actaS that barred the petitioner from returning to the United States and conflrted with prior treaties between the United States and Chinaa4 The Court gave effect to the act of Congress, and thus resolved the question of whether treaties could be displaced by congressional action sb

In ThePaqueete Habana the Supreme Court found that the seizure of the vessels by a Navy admiral did not displace customary inter. national lax,.sB

With the above vague language, however, the Court also implied that both Congress and the President did possess the authority to displace such law Unfortunately, vague implications often lead to expansive Inferences.

Citing Tag u. RogerS3' and The Over the Top,38 Barr contends that,

a6W Barr, mpm note 2, at 5psL Henkm. supro note 15, at 878"Id at 871IlWhlfne) Y Robenion. 124 I S 180 (1&90). Head hlone) Cases. 112 L S 580 (1881). T 3 0 US 661 (1888)

T o r a detailed reuew of the historical background that led to these restrictions on Imrnlgranon and the specific acts involred _e L Henlun supra note 15, at 854 66 an,?

Chlnese Exclusion Caie, 130 I. S 581 (1889)

-. ..

"Treaty of Peace and Fnendshrp, July 3, 1644. Inlfed States-Chma, 8 Stat 582, Treaty of Peace and F'nendihlp, June 1858, United States-Chma. 12 Stat 1033 Mdt nonal Anlcles to the Treaty of P e ~ e and FTiendship of 1858. July 28. 1668, United Stater China. l6Stat 738 Seegenemllg Chnese ExcluiionCase, 130 US at 580.94

"Chmese Exeluson Caie, 130 U 5 at 602

"Alpuaie Hobam 175 CS at 714"267 F2 664 (DC Clr 1888) cmL denzed 362 U S 804 (1060) "5 F2d 838 (D Conn 1825)

MILITARY L.4W REVIEW [\"I 129

since The RzqiLete Habam decision, "the courts have repeatedl? recognized that the executive and legmlatire branches map in exer-cising their mpectwe authority. deparr from customaF Lnternatlonal law '" This 1s simplg not true Seaher of the cited cases refers to the existence of any Executive authority to depart from customary international law

mg dealt with the confiscation hy the Federal Government of property in a Ke* lbrk trust owned by a German natmnal durlng Sbrld War I1 This action was taken in accordance with the Trading with the Enemy Act ?"but violated a preexisting treat) with German? 4.

The court concluded that Congress had the authority to dlsplace thls earlier treat?.'? a decision that was simp]? a reiteration of the reason mg set forth in the Chinese Erc!usion Case

7he O w the Top was a 1926 district court case from Connecticut

that mvolved the sale of alcohol m...