May 01, 1998
On September 25, 1997, the International and National Security Law Practice group co-hosted a debate with the ABA Standing Committee on National Security Law on the subject of the binding force of treaties. We have excerpted the remarks of the two speakers, John Bolton and Robert Turner.
What do we mean when we inquire whether International Law is law? Over the centuries the term "law" has been used to identify some quite different concepts. The Old Testament tells us that "law" is "the will of God" -- as in the Ten Commandments.
Beginning about three centuries ago, writers like Thomas Hobbes argued that "law" was but a command of a sovereign enforced by a sanction. In this tradition, more than a century ago John Austin wrote in The Province of Jurisprudence Determined that:
"[T]he law obtaining between nations is not positive law: for every positive law is set by a given sovereign to a person or persons in a state of subjection to its author."
By this definition, of course, "international law" is admittedly not "law." Indeed, such a narrow definition would exclude much of what we Americans regard as "law" in the late 20th Century. It would certainly exclude, for example, the U.S. Constitution and our Bill of Rights -- which are designed in no small part to constrain government power rather than to issue commands to individual subjects or citizens.
Clearly, any archaic definition that fails to include any of the three categories which or Founding Fathers declared would be the "supreme law of the land" within the United States is not very useful for this afternoon’s inquiry.
What I would submit is far more indicative of the perceived binding nature of International Law is that when States do find it in their interest to violate International Law, they never seek to justify their behavior by asserting that the rules don’t matter or that International Law is not legally binding and may be disregarded when inconvenient:
- When Hitler invaded Poland, and Kim II Sung invaded South Korea, they issued careful statements alleging that they were acting in "self-defense."
- When the Soviet Union invaded Hungary, Czechoslovakia, and Afghanistan, it alleged that it had been "invited" in: and Leninist International Law experts also crafted the so-called "Brezhnev Doctrine" to provide additional legal facade to their aggression.1
- In 1960, North Vietnam engineered the creation of a "National Liberation Front" in South Vietnam to conceal its efforts to overthrow its neighbor -- a highly successful strategy that persuaded many of American’s most respected international lawyers to conclude that Hanoi was innocent of aggression for many ears thereafter.2
- Colonel Khadaffi routinely denied any knowledge of the terrorist attacks he had ordered; the Nicaraguan Sandinistas swore to the World Court that they had not given any support to guerrillas in neighboring El Salvador3; and Saddam Hussein’s spokesmen raised a panoply of alleged legal defenses for the invasion of Kuwait -- ranging from the absence of agreed-upon borders to alleged Kuwaiti theft of Iraqi oil deposits.
International Law is "Law" under the U.S. Constitution.
Let me now turn to my second point -- that the United States Constitution clearly establishes that international treaties are binding "law."
Few issues were debated at greater length during the Federal Convention of 1787 than the allocation of the power to bind the Nation to solemn commitments with foreign States. After more than three months of deliberations during which treaties were discussed on scores of occasions, concern over the magnitude of this power led the Framers to require the consent of two-thirds of the Senate before the President could ratify a treaty.
If treaties did not incur solemn legal obligations for the nation, and could simply be ignored when inconvenient, there would have been little reason for the framers to include this quite anti-democratic provision in the new Constitution -- permitting one-third-plus-one of the Senate to block the will of the majority.
There can be no doubt that the constitutional Framers viewed treaty obligations as binding "law." Indeed, it was because treaties were to be "law" that James Wilson, of Pennsylvania, proposed on Friday, September 7, 1787, that the President also be required to obtain the consent of the House of Representatives before ratifying a treaty. Roger Sherman of Connecticut was one of several delegates to argue that treaties required a degree of secrecy that would be incompatible with a large deliberative assembly like the House of Representatives, and Wilson’s motion failed by a vote of 10 to 1.
As finally approved, Article 6, paragraph 2, of the Constitution provides in part that :
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land..."
Admittedly, the constitutional text does not expressly establish a hierarchy among the three types of "supreme law of the land." Clearly, a statute of Congress was to be inferior to the Constitution itself, but how did Treaties fit into the picture.
Certainly the most authoritative public exposition of the treaty power prior to ratification of the Constitution was John Jay’s Federalist Essay No. 64, in which our most experienced diplomat responded to critics of the new Constitution who argued "that treaties, like acts of assembly, should be repealable at pleasure" rather than being designated "supreme laws of the land."
Noting that other countries considered Treaties to be absolutely binding legal obligations, Jay reasoned, and I quote:
This idea [that treaties should be repealable at pleasure] seems to be new and peculiar to this country, but new errors as well as new truths often appear. These gentlemen would do well to reflect that ... it would be impossible to find a nation who would make any bargain with us, which should be binding on them absolutely, but on us only so long and so far as we may think proper to be bound by it....The proposed Constitution...has not in the least extended the obligation of treaties. They are just as binding, and just as far beyond the lawful reach of legislative acts now, as they will be at any future period, or under any form of government.
The Problem of Sanctions
First of all, I would suggest that "sanctions" and "enforcement mechanisms" have more to do with the question of whether law is effective than with whether it is law. Let me give you a couple of examples.
As most of you probably know, on April 27, 1861, President Lincoln secretly authorized the Army to suspend the writ of habeas corpus. When John Merryman, a Maryland state legislator, was arrested by the Army and imprisoned at Ft. McHenry, Chief Justice of the United States Roger Taney promptly issued a writ of habeas corpus ordering the Commanding General at Ft. McHenry to produce Merryman the following day. But the General elected instead to obey his Commander in Chief, and refused.
Chief Justice Taney declared that the President had acted unconstitutionally and that Merryman should be released. He noted that his Marshal had authority to summon the posse comitatus to assist in seizing the General and bringing him before the Court on a contempt charge; but he acknowledged that the General commanded a more powerful force and could successfully resist capture. The Chief Justice concluded his ruling in Ex parte Merryman with these words: "I have exercised all the power which the constitution and laws confer upon me, but that power has been resisted by a force too strong for me to overcome."
Does it follow that the U.S. Constitution is not law because there are instances in which its provisions can not be enforced?
Consider for a moment what might have happened in 1974 if President Nixon had defied the Supreme Court’s order in United States v. Nixon and simply asserted that the tapes had already been erased and thus could not be produced? Did the Court have the coercive power to compel compliance by the President with its order? Could it have sent a Marshal over to the White House gate armed with a search warrant? It would not have been a pretty sight.
Fortunately, we need not get bogged down on the question of whether unenforceable law is really law, because the reality is that International Law is regularly enforced through a wide-range of quite effective sanctions. Our time is limited, so let me just touch on a few examples of ways in which International Law is enforced:
- Under Chapter 7 of the UN Charter, the Security Council is expressly empowered in the event of an act of aggression or threat to the peace to take appropriate action "to maintain or restore international peace and security." While largely ineffective during the Cold War, North Korea and Iraq can confirm that the system can work. Countless other potential aggressors may also have been deterred.
- Don’t forget that for more than 50 years there has been an International Court of Justice, in The Hague, which I might add since February has had a brilliant American national as its President. The ICJ -- which in 1980 unanimously ordered Iran to return the American diplomats it was holding hostage -- currently is considering nine cases.
- Article 94 of the Charter requires UN Members to "comply with the decisions of the International Court of Justice" in any case to which they are a party, and empowers the Security Council to enforce such decisions.
- In 1993 the Security Council established the International Criminal Tribunal for the former Yugoslavia, to prosecute persons responsible for serious violations of international humanitarian law. As of July, the Tribunal had indicted 77 individuals and 10 were in custody awaiting trial. Evidence had been taken from nearly 200 witnesses, and the first two trials had led to convictions and lengthy prison sentences.
- International Law is routinely enforced by individual States through their domestic laws, courts, and police forces. Thus Article I, Section 8, of the U.S. Constitution empowers Congress to "define and punish .... offenses against the Law of Nations."
- Ultimately, a fundamental reason International Law is effective is because States perceive it to be in their self-interest to have legal rules and to be perceived by other States as a law-abiding member of the International Community.
Let me conclude by addressing another question. Does it really matter whether we view International Law as being really "law"?
It does matter, and I suggest it matters tremendously. To think otherwise is to misunderstand the power of the Rule of Law in promoting human freedom and world peace.
In June of 1993, at another program sponsored by the ABA Standing Committee, I recall hearing Ambassador Max Kampelman discussing Gunnar Myrdal’s distinction between the "is" and the "ought" in political institutions and societies. Max observed that agreeing upon the "ought" -- even if we sometimes fail to achieve that standard -- is a terribly important thing.
In retrospect, getting the Soviet Union to accept Basket Three in the Helsinki Process in 1975 was a grand accomplishment. It took a few more years before the Iron Curtain and the Berlin Wall crumbled, but once Moscow had acknowledged that individuals had rights which were beyond the reach of governments a major bridge had been crossed over which they were never able to retreat.
Ideas have consequences. It is tremendously important to establish as legally binding rules -- obligatory upon all nations, and enforceable by a range of sanctions in many if not most cases -- certain key principles:
- That aggressive war is a crime against all people and its perpetrators are subject to prosecution and punishment;
- That sovereign power ultimately resides not in kings, queens, and dictators, but in the will of the people, authoritatively expressed through free and democratic elections;
- That individuals have certain fundamental rights that can not be denied them even by a majority of the people.
- Thanks to International Law, each of these "oughts" is now becoming firmly established as a legally binding principle throughout much of the world.
*Professor Robert Turner is the Associate Director of the Center for National Security Law at the University of Virginia School of Law, from which he holds both professional and academic doctorates. A veteran of two Army tours in Vietnam and former Public Affairs Fellow at Stanford’s Hoover Institution, he spent five years as national security adviser to a member of the Senate Foreign Relations Committee and has also served as Principal Deputy Assistant Secretary of State for Legislative Affairs and as the first President of the U.S. Institute of Peace. During 1994-95 he held the Charles H. Stockton Chair of International Law at the U.S. Naval War College, and he has also been a Distinguished Lecturer at the U.S. Military Academy at West Point. The author or editor of more than a dozen books and numerous articles, he has testified before more than a dozen committees of Congress.
- See John Norton Moore & Robert F. Turner, International Law and the Brezhnev Doctrine (1987).
- See Robert F. Turner, Vietnamese Communism: Its Origins and Development (1975).
- See Robert F. Turner, Nicarugua v. United States: A Look at the Facts (1987).