Is International Law Really Law?
International & National Security Law Practice Group Newsletter - Volume 2, Issue 1, Spring 1998
May 1, 1998John R. Bolton
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.
Treaties have no special or higher status than other legislative acts, or the U.S. Constitution.
I have been surprised, in conversations even with knowledgeable and sophisticated foreign policy analysts, to hear repeated reference to treaties as possessing some special status in the American legal system. I believe that the confusion stems from the misreading both of the Supremacy Clause of the Constitution, and of the well-known opinion by Mr. Justice Holmes in Missouri v. Holland, 252 U.S. 416 (1920).
The Supremacy Clause provides:
"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; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."
U.S. Constitution, Article VI, clause 2.
The inclusion of "treaties" in the Clause was a deliberate effort by the Framers to subordinate contrary State laws to treaties entered into by the national government. Under the Articles of Confederation, States had frequently enacted laws which, for example, clashed with the Treaty of Paris of 1783. Just as the Framers intended duly enacted laws at the national level to supersede contrary State laws, so too, national treaties were intended to trump State law under the Supremacy Clause.1
The Constitution entrusted the treaty-making power solely to the national government, by providing that the President "shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur...." U.S. Constitution, Article II, Section 2, clause 2. Indeed, the Framers also provided that "No State shall enter into any Treaty, Alliance, or Confederation...," to make it completely clear that the treaty power belonged only to the national government. Id. Article 1, Section 10, clause 1.
In Missouri v. Holland, supra, the State of Missouri challenged the constitutionality of the Migratory Bird Convention of 1916 with Great Britain, as well as statutes and regulations intended to implement the treaty. Missouri argued that the Convention, which attempted to limit the killing and capturing of migratory birds in the U.S. and Canada, violated the Tenth Amendment. The Supreme Court rejected Missouri’s argument, and upheld the validity of the treaty, as well as the implementing statue and regulations.
Justice Holmes specifically concluded that "[t]he treaty in question does not contravene any prohibitory words to be found in the Constitution." 252 U.S. at 433. Nonetheless, his opinion added expansively that :
"It is said that a treaty cannot be valid if it infringes the Constitution; that there are limits, therefore, to the treaty-making power; and that one such limit is that what an act of Congress could not do unaided, in derogation of the powers reserved to the states, a treaty cannot do ...."
"Acts of Congress are the supreme law of the land only when made in pursuance of the Constitution, while treaties are declared to be so when made under the authority of the United States ... We do not mean to imply that there are no qualifications to the treaty-making power; but they must be ascertained in a different way. It is obvious that there may be matters of the sharpest exigency for the national well-being that an act of Congress could not deal with, but that a treaty followed by such an act could, and it is not lightly to be assumed that, in matters requiring national action, ‘a power which must belong to and somewhere reside in every civilized government’ is not to be found [citation omitted]."
Id. at 432-33.
Having dealt with the Convention, Justice Holmes summarily upheld the implementing statute: "If the treaty is valid, there can be no dispute about the validity of the statute under article 1, [Sec.] 8, as a necessary and proper means to execute the powers of the government." Id. at 432.
Perhaps sensing the need to quiet the concerns generated by Missouri v. Holland, the Supreme Court revisited the issue in Reid v. Covert, 354 U.S. 1 (1957). There, the Court invalidated the murder convictions of wives of American servicemen who had accompanied them as dependents overseas, and who were convicted of murdering them by military courts martial. A plurality of the Court concluded that military trials of civilians generally violated the Constitution, while Justices Frankfurter and Harlan limited their opinion only to capital cases.
The plurality opinion by Justice Black rejected an argument by the government that courts martial of dependents accompanying the U.S. military overseas were required to implement international agreements made with the countries where they were stationed. The Court concluded that "no agreement with a foreign nation can confer power on the Congress, or on any other branch of Government, which is free from the restraints of the Constitution." 354 U.S. at 16.
After quoting the Supremacy Clause, Justice Black stated:
"There is nothing in this language which intimates that treaties and laws enacted pursuant to them do not have to comply with the provisions of the Constitution... It would be manifestly contrary to the objections of those who created the Constitution, as well as those who were responsible for the Bill of Rights -- let alone alien to our entire constitutional history and tradition -- to construe Article VI as permitting the United States to exercise power under an international agreement without observing constitutional prohibitions. In effect, such construction would permit amendment of that document in a manner not sanctioned by Article V."
Id. at 16-17.
Justice Black added that "[t]his Court has regularly and uniformly recognized the supremacy of the Constitution over a treaty." Id. at 17 (emphasis added). He then concluded expressly: "There is nothing in Missouri v. Holland [citation omitted] which is contrary to the position taken here. There the Court carefully noted that the treaty involved was not inconsistent with any specific provision of the Constitution." Id. at 18.
Thus, for purposes of American law, treaties do not exist apart from or outside of that body of law, or in a position superior to or superseding the Constitution, or any of its requirements or prohibitions. Whatever the legal impact of a treaty -- a point I turn to next -- that impact must be determined consistently with the Constitution and subordinate American law.
Treaties are "law" only for U.S. domestic purposes. In their international operation, treaties are simply "political," and not legally binding.
Another major source of confusion about the effect of U.S. treaty obligations is what it means to say that they constitute, in the Constitution’s phrase, "the supreme Law of the Land." In normal American usage, the word "law" denotes a binding obligation. In the context of UN assessments, the argument is frequently made that these assessments are the result of a treaty obligation, hence are the "law of the land," and hence are "legally binding" on Congress to pay in full and in a timely fashion.
This line of argument is flatly incorrect. To the extent that adherence to the UN Charter carries any obligation, it is political in nature, and subject to all of the possibilities for modification or abrogation of any political arrangement. That renders it fundamentally different from a treaty that affects the domestic relationships between the government and its citizens, or between private citizens, as the Supreme Court has repeatedly recognized.
In Edve v. Robertson, 112 U.S. 580 (1884) (the "Head Money Cases"), the Court upheld as constitutional a per-person fee on immigrants, to be used for the support of those who need care or assistance after landing. The ship owners challenging the fee’s validity argued that the statute establishing the fee violated several U.S. treaty obligations. The Court rejected this argument, and in so doing articulated the important distinction between the effect of treaties in the international arena, on the one hand, and within the United States, on the other. While respect to the international arena, the Court said:
"[a] treaty, then, is a law of the land as an Act of Congress is, whenever its provisions prescribe a rule by which the rights of the private citizen or subject may be determined. And when such rights are of a nature to be enforced in a court of justice, the court resorts to the treaty for a rule of decision for the case before it, as it would to a statute."
Id. (emphasis added)
The Supreme Court’s distinction in the Head Money Cases echoed the same point made in The Federalist, Number 75: treaties "are not rules prescribed by the sovereign to the subject, but agreements between sovereign and sovereign." As the Court indicates, when treaties operate as "municipal law, "they are justiciable as are all other similar legal requirements. "An illustration of this character is found, in treaties which regulate the mutual rights of citizens and subjects of the contracting Nations in regard to rights of property by descent or inheritance, when the individuals concerned are aliens." 112 U.S. at 598. In the international arena, however, resolution of disputes arising under treaties requires political adjustments -- not legal adjudications -- among the states party to the treaty, up to and including war.
In short, treaties are "law" to the extent that they constitutionally adjust private-private and private-public relationships within the United States. They are "political," and not legally binding, to the extent that they purport to affect relations among national governments. There may be good and sufficient reasons to abide by the provisions of a treaty, and in most cases one would expect to do so because of the mutuality of benefits that treaties provide, but not because the U.S. is "legally" obligated to do so. As the Supreme Court observed in Chae Chan Ping: "whilst it would always be a matter of the utmost gravity and delicacy to refuse to execute a treaty, the power to do so was prerogative, of which no nation could be derived without deeply affecting its independence." 130 U.S. at 602 (emphasis added).
*John R. Bolton is Senior Vice President of the American Enterprise Institute.
- See Reid v. Covert, 354 U.S. 1, 16-17 (1957).
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