Public International Law: The Law of Nations in American Law

First a note from the author:

Here's the "long and short of it" so that this might make some sense...

I've been reading a series of about a dozen cases that illustrate how international law is interpreted and enacted in American courts. There are two basic sources of this law, the first is your "formal" or "traditional" international law, which is derived from Treaties and each country literally signs it (which is how a sovereign nation can be bound by international law - their signature is their "assent").

The second is "informal" or "non-traditional" international law. This article is meant only to discuss how American Courts have generally integrated "informal" or "non-traditional" international legal standards into American law. These are the "non-consensual" sources of law, because the states don't specifically put their signature on a document agreeing to this legal standard. The so-called "non-traditional international legal norms" are derived from such sources as: (1) Customary International Law [how do states generally act towards each other, and how has America acted in the past], (2) General Principles of law [Lawyer-Client Privilege is a universally accepted necessity], and (3) jus cogens [or a "compelling norm" - something that every reasonable human being should be able to agree is good or bad. Piracy is the only example that comes to mind].

Now onto the good stuff (if you're into drab and dull analysis of 200 year old pre-constitutional judicial decisions...)

Thoughts on Respublica v. De Longchamps:

The one overwhelming problem I have with this case is that I find it generally failed to explain why extradition was not proper. This might be more for my lack of understanding of the laws of extradition but it occurs to me that if the court is going to hold that the Verbal Assault took place on “French territory” because it was the ministers official residence, then for all intents and purposes the crime too place in France. Is it not generally accepted that in cases such as this, where the crime occurred on foreign soil, that the criminal be extradited back to the country who sustained the injury? It seems to be that would have been proper.

What would not have been proper, and the court handled well, would be to allow the crown of France to determine the length of the sentence for De Longchamp. That would (as the note after the case asked) result in a ceding of a serious amount of our “early judiciary” sovereignty (at a time when it was critical to the development of the United States that we assert our sovereign power).

For more information see Respublica v. De Longchamps, 1 U.S. (1 Dall.) 111 (1784).

Thoughts on United States v. Alvarez-Machain:

I was entirely shocked that the majority was able to justify brushing aside international customary law, and (what would seem to be) common sense and validate the FEDERAL GOVERNMENT taking such actions. This appears (as the dissent properly articulates) to be a major violation of the sovereign rights of Mexico. One of the keystones of American sovereign authority should be that a foreign government couldn’t enter American soil (in an official capacity none the less) and go about the business of kidnapping an American citizen in order to try then in foreign courts.

That is behavior that our government would never condone, and I think that the majority decision in this case ran contrary to the public interest of this country. It’s a door that we have no business opening. The quotes on vengeance, and the pressure to get retribution really capture the importance of upholding our law, and the law of nations in trying times. The one thing I’m not sure of is where the murder took place. It was unclear from the facts whether the crime for which Alvarez-Machain was kidnapped was in the U.S. or not.

For more information see United States v. Alvarez-Machain, 504 U.S. 655 (1992).

The “Political Question Doctrine”:

The first two potions of the test are pretty clear judicial cannons – if this is a question for the legislature to determine, the courts are generally adverse to “legislating from the bench” and would prefer only to deal with matters that have law to be analyzed. Similarly they defer to the Executive branch when appropriate (as they did in the series of cases in part A of this chapter that questioned the Presidents power). The third prong however struck me as odd:

(iii) Do prudential considerations counsel against judicial intervention?

That is a mighty open ended “out” that Justice Powell left the courts. When is this appropriate? Only in foreign matters? What about domestic issues that carry particularly important political implications. Should the Supreme Court have refused to address the 2000 Presidential Election controversy? What about such things as gay-marriage? Is it best to leave that to the legislature and get involved only when asked if specific legislation or executive action is contrary to a constitutional right? I don’t have answers to these questions, but as I read this material, I found it surprising that the court would have such a dramatically undefined “escape pod” for hot button issues.

For more information on this matter, see the source in Goldwater v. Carter, 444 U.S. 996 (1979) (Powell, J., concurring).


Stay Tuned...


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