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Federal Statutes, Executive Orders and “Self-Executing Custom”

Published online by Cambridge University Press:  27 February 2017

Frederic L. Kirgis Jr.
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Extract

A hotly debated issue raised in this publication’s October 1986 Agora and, repeatedly, during the drafting of the Restatement of Foreign Relations Law of the United States (Revised) has to do with the relationship between customary international law and federal law in the United States. Most of the debate addressed whether a newly emerged custom would supersede an earlier federal statute or self-executing treaty. The reporters of the Restatement took a strong stand at first, placing custom on the same plane as federal statutes and self-executing treaties: in case of conflict, the latest in time should prevail. Criticism rolled in, and the reporters eventually retreated a bit. The final version says only that since custom and international agreements have equal authority in international law, and both are law of the United States, “arguably later customary law should be given effect as law of the United States, even in the face of an earlier law or agreement, just as a later international agreement of the United States is given effect in the face of an earlier law or agreement.”’

Type
Agora: May the President Violate Customary International Law? (Cont’d)
Information
American Journal of International Law , Volume 81 , Issue 2 , April 1987 , pp. 371 - 375
Copyright
Copyright © American Society of International Law 1987

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References

1 See Agora: May the President Violate Customary International Law?, 80 AJIL 913 (1986) (pieces by Professors Charney, , Glennon, and Henkin, )Google Scholar; see also Glennon, , Raising The Paquete Habana: Is Violation of Customary International Law by the Executive Unconstitutional? 80 Nw. U.L. Rev. 322 (1985)Google Scholar [hereinafter cited as Glennon, Raising The Paquete Habana].

2 Restatement of Foreign Relations Law of the United States (Revised) [hereinafter cited as Restatement (Revised)] § 135 comment b and Reporters’ Note 1 (Tent. Draft No. 1, 1980).

3 Id. §135 Reporters’ Note 4 (Tent. Draft No. 6, 1985).

4 788 F.2d 1446 (11th Cir.), cert denied sub nom. Ferrer-Mazorra v. Meese, 107 S.Ct. 289 (1986)

5 See, e.g., Restatement (Revised), supra note 2, §702 (Tent. Draft No. 6, vol. 1, 1985); Universal Declaration of Human Rights, Dec. 10, 1948, GA Res. 217A, UN Doc. A/810, at 71 (1948); International Covenant on Civil and Political Rights, Dec. 16, 1966, Art. 9(1), GA Res. 2200, 21 UN GAOR Supp. (No. 16) at 52, UN Doc. A/6316 (1966); Fernandez v. Wilkinson, 505 F.Supp. 787 (D. Kan. 1980), aff’d on other grounds sub nom. Rodriguez-Fernandez v. Wilkinson, 654 F.2d 1382 (10th Cir. 1981). Set also Lillich, , Invoking International Human Rights Law in Domestic Courts 54 U. Cin. L. Rev. 367, 402–04 (1985)Google Scholar.

6 175 U.S. 677, 700(1900).

7 See Garcia-Mir v. Meese, 788 F.2d at 1454 n.9.

8 Henkin, The President and International Law, in Agora, supra note 1, at 930, 935.

9 Henkin, , International Law as Law in the United States 82 Mich. L. Rev. 1555, 1561, 1566 (1984)Google Scholar.

10 See Lillich, supra note 5, at 404 n.177.

11 A possible exception would be a customary rule in whose development the President, or his high-ranking delegate, had actively participated as commander-in-chief of the armed forces or as the chief U.S. diplomat. He does seem to have domestic lawmaking power under these constitutional grants of authority, narrowly applied. See the discussion in the text at notes 14–17.

12 See Glennon, Can the President Do No Wrong?, in Agora, supra note 1, at 923; Glennon, Raising The Paquete Habana, supra note 1, at 343–47. Cf. Restatement (Revised) §131 comment d (Tent. Draft No. 6, vol. 1,1985). Professor Henkin has argued that custom is only like common law in that it is unwritten. See Henkin, supra note 8, at 933; Henkin, supra note 9, at 1561–62. But no court has ever found unwritten federal law to be anything other than federal common law.

Custom may also inform constitutional provisions, particularly in the Bill of Rights. In that context, custom is an aid to constitutional interpretation, not an independent source of law. As such, it could properly be said to be of a higher order than nonconstitutional federal law, whether statutory or common law. The court in Garcia-Mir treated the unadmitted aliens as not eligible for protection by “the core values of the Due Process Clause per se.” 788 F.2d at 1447. That may be questionable, but I do not propose here to challenge it.

13 To the contrary, see Charney, The Power of the Executive Branch of the United States Government to Violate Customary International Law, in Agora, supra note 1, at 913, 919–22.

14 But see Charney, supra note 13.

15 Cf. Henkin, L., Foreign Affairs and the Constitution 39–44 (1972)Google Scholar.

16 See United States v. Belmont, 301 U.S. 324 (1937); United States v. Pink, 315 U.S. 203 (1942).

17 Professor Henkin gives the President too much latitude when he contemplates independent presidential power stemming from a role defined as the “sole organ” in foreign affairs, as well as from the commander-in-chief role. See Henkin, supra note 8, at 934, 936. He is the “sole organ” as chief diplomat, but that is a narrower category than Professor Henkin seems to have in mind.

18 8 U.S.C. §§1101 et seq. (1982).

19 This is a narrower point than some commentators have made. In an interesting article containing much historical analysis, Professor Lobel argues that explicit congressional approval is necessary for the President to override customary international law. See Lobel, , The Limits of Constitutional Power: Conflicts between Foreign Policy and International Law 71 Va. L. Rev. 1071, 1120 (1985)Google Scholar. See also Glennon, in Agora, supra note 1, at 924, 930; Glennon, Raising The Paquete Habana, supra note 1, at 331–39, 363.