Pg. 11, Memorandum Opinion on the Geographic Scope of the Convention Against Torture and Its Application in Situations of Armed Conflict, January 21, 2013.
For more than forty years, the Society of American Law Teachers (SALT) has been one of the United States' largest membership organizations for teachers of law. SALT has a three-part mission: 1) creating and maintaining a community of progressive and caring law professors dedicated to making a difference through the power of law; 2) promoting the use of many forms and innovative styles of teaching to make our classrooms more inclusive; and 3) challenging faculty and students to develop legal institutions with greater equality, justice, and excellence.
Article 38 Statute of the International Court of Justice definition of international law.
Section 111 and Comment (a), Restatement of the Law Third, the Foreign Relations Law of the United States (American Law Institute May 14, 1986).
Wednesday, February 6, 1788, James Madison, Federalist Paper 51 available at http://www.constitution.org/fed/federa51.htm.
Section 111(1), Restatement of the Law Third, the Foreign Relations Law of the United States, (American Law Institute 1986) (“International law and international agreements of the United States are law of the United States and supreme over the law of the several states.”). Some scholars argue that customary international law and general principles are state law. Jack L. Goldsmith & Curtis Bradley, Customary International Law as Federal Common Law: A Critique of the Modern Position, 110 Harv. L. Rev. 815 (1997).
Foster & Elam v. Neilson, 27 U.S. 253 (1829).
Medellin v. Texas, 552 U.S. 491 (2008), has increased the uncertainty.
The Paquete Habana, 175 U.S. 677 (1900).
Cf. Missouri v. Holland, 252 U.S. 416 (1920); Reid v. Covert, 354 U.S. 1 (1957). This year, a majority of the Supreme Court somewhat skirted the issue of whether structural grants of power between the U.S. federal and state governments act as limits on the treaty making power and legislative power of the federal government. This case involved the interpretation of the effect of the Convention on the Prohibition of the Development, Production, Stockpiling, and Use of Chemical Weapons and on Their Destruction. S. Treaty Doc. No. 103–21, 1974 U. N. T. S. 317. The Court held this treaty is a non-self-executing treaty with (unlike the ICERD) implementing legislation through the Chemical Weapons Convention Implementation Act. See 112 Stat. 2681–856. Under the principle that normally the Court will not decide a constitutional question if there is some other ground upon which to dispose of the case, the Court concluded that the relevant section of the implementing legislation which tracks the treaty language should be read narrowly. Absent a clear statement of that purpose, the Court stated it would not presume Congress to have authorized reaching the conduct of the individual in question. A majority of the Court would view such reach of an implementing statute as a stark intrusion by the federal government into traditional state police power authority. The Court noted that if the statute reached the conduct in question, it would mark a dramatic departure from that constitutional structure and a serious reallocation of criminal law enforcement authority between the Federal Government and the States. Bond, supra note 103. This line of reasoning trims the force of Missouri v. Holland by raising structural federalism concerns about the reach of implementing legislation that tracks language of a treaty entered into under the authority of the United States. Of even greater concern, three justices who concurred in the result of the majority expressed views that the federal treaty power did not reach “internal domestic matters” of the kind that are at the heart of human rights treaties such as the ICERD, a conclusion that is at odds with prevailing interpretation of constitutional treaty-making power. See Bond, supra note 103 (Scalia, J., concurring). The implication could not be clearer. This recent decision indicates a further destabilizing of U.S. domestic implementation of international law to avoid treaty obligations. In addition to existing federalism challenges to implementing legislation of non-self-executing treaties and to rare self-executing treaties, the Bond decision threatens a narrowing vision of the treaty power of the federal government that excludes undertaking treaties concerning internal domestic matters (including human rights treaties). It is therefore evident that a destabilizing of the domestic consequences of U.S. ratification of human rights treaties is ongoing.
Section 115, Restatement of the Law Third, the Foreign Relations Law of the United States (American Law Institute 1986).
Harold Hongju Koh, Memorandum on Opinion on the Geographic Scope of the Convention Against Torture and Its Application in Situations of Armed Conflict 11 (January 21, 2013), available at http://justsecurity.org/wp-content/uploads/2014/03/state-department-cat-memo.pdf.
Section II, United States Reservations, Understandings and Declarations to the ICERD, available at https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-2&chapter=4&lang=en#EndDec
Customary international law and general principles are sometimes argued in academic circles to be state law.
Oklahoma, See Concurrence of Judge Charles S. Chapel, Torres v. Oklahoma No. PCD-04-442 (Okla. Crim. App. May 13, 2004).
See Medellin v. Texas 552 U.S. 491 (2008); Virginia Governor’s statement of April 14, 1998 (in the Angel Breard case subsequent to Breard v. Greene, The Republic of Paraguay v. Gilmore, 523 U.S. 371 (1998)).
Ryan H. Boyer, Student Note, “Unveiling” Kansas’s Ban on Application of Foreign Law, 61 Kansas L. Rev. 1061 (2013).