The Supreme Court and the law of nations.

• Author: Blackmun, Harry A.

The Declaration of Independence opens with the following memorable passage:

When in the Course of human Events, it becomes necessary for one People to dissolve the Political Bands which have connected them with another, and to assume among the Powers of the Earth, the separate and equal Station to which the Laws of Nature and of Nature's God entitle them, a decent Respect to the Opinions of Mankind requires that they should declare the causes which impel them to the Separation.(1)

As Professor Louis Henkin has noted, the early architects of our Nation understood that the customs of nations - the global opinions of mankind - would be binding upon the newly forged union.(2) John Jay, the first Chief Justice of the United States, observed in Chisolm v. Georgia that the United States "had, by taking a place among the nations of the earth, become amenable to the laws of nations."(3) Although the Constitution gives Congress the power to "define and punish ... Offenses against the Law of Nations"(4) and identifies treaties as part of "the supreme Law of the Land,"(5) the task of further defining the role of international law in the nation's legal fabric has fallen to the federal courts.

Several first principles have been established. As early as 1804, in Murray v. Schooner Charming Betsy, the Supreme Court recognized that "an act of congress ought never to be construed to violate the law of nations if any other possible construction remains."(6) In a trilogy of cases in the 1880's the Court established that treaties are on equal footing with federal statutes and that, where a treaty and statute cannot be reconciled, the later in time is controlling.(7) Finally, in the case of The Paquete Habana,(8) decided in 1900, the Supreme Court addressed the ability of courts to enforce customary international law. In invalidating the wartime seizure of private fishing vessels as contrary to the law of nations, the Court observed. "International law is part of our law, and must be ascertained and administered by the courts .... [W]here there is no treaty, and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations ...."(9) Although commentators continue to debate the extent of executive, legislative, or judicial power to trump customary international law, the import of The Paquete Habana is clear: Customary international law informs the construction of domestic law, and, at least in the absence of any superseding positive law, is controlling.

The Paquete Habana left many questions unanswered, and courts since have backed away from some of that decision's more sweeping promises. The principles established during the Supreme Court's first century, however, continue to define the relationship between the law of nations and domestic American law. This Article considers the Supreme Court's application of these principles in four recent cases. The first two, United States v. Alvarez-Machain(10) and Sale v. Haitian Centers Council, Inc.,(11) required the Court to examine the validity of executive action in light of binding international treaties. The last two, Thompson v. Oklahoma(12) and Stanford v. Kentucky,(13) addressed the implications of international law for Eighth Amendment death-penalty jurisprudence. Unfortunately, I conclude from these cases that the Supreme Court recently has shown something less than "a decent respect to the opinions of mankind."

2. CONSTRUING INTERNATIONAL INSTRUMENTS

   1. United States v. Alvarez-Machain

      Two Terms ago, in the case of United States v. Alvarez-Machain, the Supreme Court was asked to consider whether the forced abduction of a Mexican national by United States agents violated a U.S.-Mexico extradition treaty.(14) Over the vehement protest of the Mexican government, Dr. Humberto Alvarez-Machain was kidnaped in Mexico and brought to the United States to stand charges for the kidnaping, torture, and murder of a U.S. Drug Enforcement Administration agent. The district court dismissed the charges, concluding that the abduction violated the U.S-Mexico extradition treaty.(15)

      The Supreme Court disagreed, holding, by a 6-3 vote, that the abduction had not violated the extradition treaty. Although the treaty established comprehensive procedures for the extradition of foreign nationals wanted for prosecution by the other sovereign, Chief Justice Rehnquist observed for the majority that the treaty was silent with regard to "the obligations of the United States and Mexico to refrain from forcible abductions of people from the territory of the other nation."(16) In the absence of an express prohibition, the majority reasoned, the kidnaping must be allowed. Ignoring the hornbook principle that a treaty shall be interpreted according to its ordinary meaning and in light of its object and purpose, the majority rejected the contention that its interpretation would eviscerate the treaty's purpose,(17) even while acknowledging that the abduction "may be in violation of general international law principles."(18)

      Justice Stevens condemned the Court's holding in a dissent in which Justice O'connor and I joined. The dissenters argued that construing the treaty's silence to allow kidnaping would reduce its provisions to mere "verbiage"(19) and would violate the treaty's spirit and purpose. Extradition treaties codify fundamental international norms. They preserve the territorial integrity of nations, protect individuals from arbitrary detention and arrest, and prevent international conflict. Transborder kidnaping, of course, violates each of these overarching goals. The Supreme Court, it seems to me, thus construed the treaty to permit the precise result that the document was drafted to forbid.

      In so doing, the Supreme Court also ignored customary international law. Quoting an article by Professor Henkin, the dissenting opinion observed that with or without an extradition treaty, abducting a person from a foreign country without the foreign government's consent "|is a gross violation of international law and gross disrespect for a norm high in the opinion of mankind. It is a blatant violation of the territorial integrity of another state, [and] it eviscerates the [global] extradition system."'(20) Even with the consent of the foreign sovereign, kidnaping a foreign national flagrantly violates peremptory human rights norms. Ironically, in its construction of the treaty, the Supreme Court could have benefited from the example of the highest court of South Africa, which recently dismissed the prosecution of a person kidnaped from a neighboring country. In language strikingly reminiscent of that in The Paquete Habana, the court concluded that an "|abduction represents a violation of the applicable rules of international law, that these rules are part of [South African] law, and that this...