The use of international law in the American adjudicative process.

• Author: Wald, Patricia M.

Thanks very much for the introduction. I'm delighted to be here. Actually, it's my third appearance at a Federalist Society program. I've always found them very interesting, and I suspect this one will be both interesting and provocative.

Now the title that I was given to talk about or "debate"--we'll see which it turns out to be--was the use of international law in the American adjudicative process. That's quite a broad topic, and I wanted to emphasize that right at the beginning, because it includes quite diverse situations: for instance, it includes the use of international treaties and compacts to guide American courts in disputes over international trade, contracts, and the like. The United States, as we all know, has signed and ratified dozens, maybe even hundreds, of international compacts on subjects such as the international sale of goods, the World Trade Organization, the North American Free Trade Agreement, the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, and the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards.

Now clearly when the U.S. is a party to such contracts, the terms of those agreements will bind our courts. Even when we're not, I doubt that there's much controversy over whether our courts can look at those compacts as evidence of the practices of reasonable persons or nations under particular circumstances. And we also have our own Supreme Court in the area of statutory construction as far back as Murray v. Schooner Charming Betsy in 1804 telling us "an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains." (3)

There are, however, two areas where even though it is accepted that international law is relevant, controversy exists as to which sources American judges can look to discover that international law.

The first is the area known as the Alien Tort Claims Act ("ATCA"), which accords jurisdiction to the district courts over torts "committed in violation of the law of nations." (14) Now I recognize there is an initial dispute about whether ATCA confers a cause of action for such torts or whether that would need separate legislation, as the U.S. Government argues in its brief in a case currently awaiting decision by the Supreme Court. (15)

But leaving that aspect aside, there's also been controversy--and I think this is more relevant to the subject of our "debate"--over what sources American judges can look at when deciding what are the elements of such torts that violate the law of nations. In other words, should they look at our own tort law or something called customary international law, which the United States has alleged in an amicus brief authorizes reference to "unratified or non-self-executing treaties, non-binding United Nations General Assembly resolutions, and purely political statements?" (16)

It bears mentioning that American courts have, in fact, said that violations of international law for purposes of the ATCA must be "of a norm that is specific, universal, and obligatory;" (17) the fundamental debate appears to be whether treaties the U.S. has not agreed to abide by, or compacts that it does not accept as self executing or as creating private causes of action, can nevertheless be viewed by courts as evidence of international customary law in deciding whether the elements of a violation of the law of nations has been proven.

Of course, I would agree that caution and thoughtful consideration is needed in classifying documents and resolutions and unratified treaties to see whether they satisfy the definitional requirements of customary international law for that purpose. That process, however, in my view, has in the main been carried out responsibly by our American judiciary, and it's not a new one.

For hundreds of years, our Supreme Court has recognized the existence of customary international law as that which, while not ensconced in binding treaties, represents norms to which civilized nations feel obliged to conform, and the Supreme Court has identified its sources as "the works of jurists and commentators, who by years of labor, research and experience, have made themselves peculiarly well acquainted with the subjects of which they treat. Such works,"--listen to this language--"are resorted to by judicial tribunals, not for the speculations of their authors concerning what the law ought to be, but for trustworthy evidence of what the law really is." (18)

Then the opinion goes on to cite--just to give you some examples--ordinances of foreign states, the opinions of eminent jurists and diplomats in Italy, Argentina, Portugal, and many other countries, French histories on international law, and so on. (19)

In ATCA cases, American courts are acting as the enforcers of international law norms. Like it or not, that appears to be what the original drafters of the ATCA intended. Those norms in turn don't depend, I think, on whether the U.S. has ratified treaties but rather on the evidence that the bulk of civilized nations considers the norm to be binding on them, as expressed in some of these documents.

If that policy bothers some, and I know it does from reading the literature, the refuge should be Congress. As long as the ATCA stays on the books, it seems to me the American courts have an obligation to consult accepted sources of customary international law that have been spelled out in respected international law treatises and in decisions by international courts, such as the International Court of Justice, and as specifically alluded to, in our own Supreme Court.

Now there's a second area in which American courts, this time military tribunals, must apply international law. In this case we're talking about the law of armed conflict or international humanitarian law.

The U.S. Government, as I read its statements, agrees that these new tribunals, the military tribunals that are going to be set up to try the cases of Guantanamo detainees, are designed to try and to punish persons for violations of the international law of armed conflict, not our own domestic laws or even our own versions of international law. In fact, the Department of Defense ("DOD") has published guidelines on the elements of these offenses to be tried in the military tribunals and purports to base them on internationally accepted definitions of war crimes, (20) This claim has, however, itself become a matter of some dispute, as many of you know. Commentators on the original...