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Published online by Cambridge University Press: 27 February 2017
When the President does it, that means that it is not illegal.
Richard M. Nixon
Customary international law is part of federal common law. Federal common law is binding on every executive branch official, including the President. Congress can by statute create a different rule, however, because federal common law is interstitial; it fills in gaps between statutes and gives way when an inconsistent law is enacted. Consequently, with congressional authorization, the Chief Executive can disregard any norm of customary international law. But in the face of congressional silence, he is required to respect a clearly defined and widely accepted norm of customary international law. I consider this position, elaborated in a recent article in the North-western Univernty Law Review, to be most consistent with traditional separation-of-powers principles and also the soundest functional approach.
* Interview with David Frost, May 19, 1977.
1 A judicial ruling that the Executive has violated a norm of customary international law finds that executive act contingently unconstitutional; if Congress approves the executive act, the contingency is fulfilled. This is different from a case in which the courts rule an executive act absolutely unconstitutional, as would be true, say, if a First Amendment violation occurred. For development of these concepts, see Glennon, , Raising The Paquete Habana: Is Violation of Customary International Law by the Executive Unconstitutional?, 80 Nw. U.L. Rev. 321, 325, 341–42 (1985)Google Scholar.
2 He may also disregard peremptory norms, although it might be noted that governmental violation of a peremptory norm would likely be unconstitutional in any event. I agree with much of Professor Lobel’s article, The Limits of Constitutional Power, 71 Va. L. Rev. 1071 (1985), but I regard his approach to peremptory norms as aspirational.
3 This formulation represents a paraphrase of the requirement set out in The Paquete Habana, 175 U.S. 677 (1900), that the norm be “a settled rule of international law [by] the general assent of civilized nations.” Id. at 694.
4 See Glennon, supra note 1. See also Panel on Authority of the Executive to Interpret, Articulate, or Violate Customary International Law, Apr. 11, 1986, 80 ASIL Proc. (forthcoming).
5 175 US. 677 (1900).
6 In fact, in The Paquete Habana, id., the President ordered that international law be honored. The issue in that case was not whether the President could violate customary international law, but whether the military commander ordered to carry out the naval blockade of Cuba had acted in accordance with the President’s order, which incorporated international law by reference.
7 Henkin, L., Foreign Affairs and the Constitution 216 (1972)Google Scholar.
8 Id. at 219.
9 Id. at 218.
10 Id. at 221.
11 Restatement of Foreign Relations Law of the United States (Revised) [hereinafter cited as Restatement (Revised)] §40 (Tent. Draft No. 1, 1980).
12 Id. §131 Comment d (Tent. Draft No. 6, vol. 1, 1985).
13 See ASIL Panel, supra note 4; deposition of Louis Henkin, Fernandez-Roque v. Smith, Civ. No. C81-1084A, June 13, 1985.
14 304 U.S. 64, 79–80 (1938).
15 41 U.S. (16 Pet.) 1 (1842).
16 L. Henkin, supra note 7, at 217.
17 Erie Railroad v. Tompkins, 304 U.S. 64 (1938).
18 For examples, see Glennon, supra note 1, at 348.
19 Henkin, , International Law as Law in the United States, 82 Mich. L. Rev. 1555, 1563 (1984)Google Scholar.
20 L. Henkin, supra note 7, at 216.
21 Charney, The Power of the Executive Branch of the United States Government to Violate Customary International Law, supra p. 913, 919. Professor Charney, of course, would not give effect to a statute which otherwise violated the Constitution, as I would not. Id.
22 Restatement (Revised), supra note 11, §303(4) (Tent. Draft No. 6, vol. 2, 1985).
23 Id. §339(a).
24 See generally Glennon, , Constitutional Issues in Terminating U.S. Acceptance, in The International Court of Justice in the Fifth Decade (forthcoming, 1986)Google Scholar.
25 Certain immunity cases, however, do illustrate the point made above that court-made rules have been applied to executive branch officials. See, e.g., Barr v. Matteo, 360 U.S. 464 (1959).
26 See supra note 6.
27 For elaboration, see Glennon, supra note 1, at 338–39.
28 For a discussion of the origins of sovereign immunity, see Henderson, E., Foundations of English Administrative Law (1974)Google Scholar.
29 5 U.S. (1 Cranch) 137 (1803).
30 418 U.S. 683 (1974).
31 622 F.Supp. 887 (N.D. Ga. 1985).
32 See generally Glennon, , The Use of Custom in Resolving Separation of Powers Disputes, 64 B.U.L. Rev. 109 (1984)Google Scholar.
33 12 U.S. (8 Cranch) 110, 128 (1814).
34 Restatement (Revised), supra note 11, §905 (Tent. Draft No. 6, vol. 1, 1985).
35 Glennon, supra note 1, at 360.
36 For reasons such as these, the Executive has long followed the practice of securing Senate or congressional consent before entering into arbitral agreements that would subject the United States to real or potential monetary liability. See Glennon, , Nicaragua v. United States: Constitutionality of U.S. Modification of ICJ Jurisdiction, 79 AJIL 682, 684 (1985)Google Scholar.
37 See supra text at note 34.
38 See UN Charter art. 51.
39 See Immigration & Naturalization Serv. v. Chadha, 462 U.S. 919 (1983).
40 Charney, supra p. 919.
41 Id.
42 Id. at 917.
43 Id. at 921–22.
44 See Art. 38(1) of the Statute of the International Court of Justice, June 26, 1945, 59 Stat. 1055, TS No. 993, providing that the Court in resolving international law disputes shall apply “general principles of law recognized by civilized nations” as well as “judicial decisions . . . of the various nations.”
45 Restatement (Revised), supra note 11, §102 Comment d, at 19, 39 (Tent. Draft No. 6, vol. 1, 1985).