Hamdan and the President’s Power to Interpret International Law

by Julian Ku

For those who haven’t had enough of reading my thoughts on Hamdan, I have a short contribution to an online symposium hosted by National Review Online on the Hamdan decision. In it, I focus on the Hamdan court’s refusal to defer to the President’s interpretation of treaties and customary international law.

http://opiniojuris.org/2006/06/30/hamdan-and-the-presidents-power-to-interpret-international-law/

3 Responses

  1. What balony: there is absdolutely nothing reasonable about the Bush administrations utterly fraudulent “interpretation” or the law, and there is absolutely no reason that the Supreme Court should aid and abet their crimes.

    This is real simple Julian: the administration is wrong, and so are you and all the other apologists for this outrageous nonsense.

    Lynch mobs, kangaroo courts, and Roman dictators are simply NOT legal institutions which are consistent with the US Constitution, the Geneva Convnetions, or the Nuremberg principles.Our existing laws are perfectly capable of dealing with terroists under title 10 or title 18. The only real problem here is that you Republicans don’t actually believe in the rule of law at all, you view the law as a weapon with which to rob and abuse anyone who gets in the way of your self-serving political agendas..

    You people should be ashamed of yourselves.

  2. Julian,

    You are right to say that there cases where “international law is simply not supposed to be invoked by private individuals in civilian domestic courts.” However, you provide no cogent reason for asserting that this is not one of them. You seem to base this argument on the fact that the Geneva Conventions have diplomatic methods of enforcement. But this is not the test (either in international law or US law) of whether a treaty confers direct rights or is intended to be self-executing. I can’t think of any case that has held that the fact that a treaty can be enforced at the international level – either judicially or diplomatically – means that it cannot be enforced domestically. In fact such a view is contrary to what the ICJ said in LaGrand (and not disputed in the recent Supreme Court decisions on the Vienna Convention). LaGrand held that the Vienna Convention on Consular Relations confers direct rights but that treaty also had an inter-State mechanism of enforcement which was what was happening in LaGrand. As I understand it the majority in Sanchez Llamas did not take a view on whether the Vienna Convention creates directly enforceable rights. But if Julian is right that an inter-State mechanism means that the treaty should not be applied in domestic courts, then it ought to have been easy for the Court to decide that the VC does not creat rights domestically. Clearly, they didn’t consider that to be the easy way of disposing of this issue.

    I also fail to understand why the President should be given a preemiment role in treaty interpretation. Would that not be an abstention of the judicial function to interpret and apply the law. Treaties are part of the law. That is what the Constitution says. There might be questions as to when a treaty is directly enforceable but, as I understand the minority to have said in Sanchez Llamas, there is no presumption that a treaty is not enforceable. To create such a presumption and to defer to the President’s “reasonable interpretation” would be to rewrite the US Constitution – would it not?

  3. As Dapo Akande said: ‘I also fail to understand why the President should be given a preemiment role in treaty interpretation. Would that not be an abstention of the judicial function to interpret and apply the law. Treaties are part of the law. That is what the Constitution says.’

    I agree. I absolutely agree. In fact, that’s just what the Supreme Court said in Sanchez-Llamas, when rejecting the notion that treaty interpretation was somehow a matter for the ICJ, not for the Supreme Court. They even cited Marbury v. Madison for this. How much closer can you get to a statement of high constitutional principle???

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