Summing up: International Law v. American Law

by John McGinnis

Thanks to Opinio Juris for inviting me to blog. I have learned a lot about blogging. It is fun, but the brevity of posts makes misunderstanding easy.

My main theme has been the tension between two kinds of global order on offer—one generated by international law and the other by American action, which in turn is regulated by American law. One must compare the law making processes of the two regimes to see which is more likely to generate a beneficial order if they conflict. (They often do not). Thus, I have posted both on the reasons to be skeptical of the beneficence of international law and the reasons to believe that America and its position in the world will lead it to generate good global norms. I also suggested that one way America can generate even better norms is by promoting generous asylum, expanded legal immigration, and guest worker programs that put pressure on other nations to improve or face more emigration.

I began by posting about America’s failure to follow the 1929 Geneva Convention when it captured a German submarine in World War II, because that is a concrete example of the tension between an order enforced by America and an order enforced by international law. I was very interested in the many learned comments to my post but my basic question remains unanswered: was not the United States right to violate the Convention even though it had seriously harmful consequences for certain individuals? And isn’t that at least a data point in trying to resolve the tension between American and international law? I agree this is hard case because the issue was regulated by treaty, not customary international law, and the ratification process (not only in America but in other democratic nations) does give us some reason to believe that a treaty in its general application is good. (My point about dualism, pace one commentator, was to suggest that international law only becomes binding through action of the political branches and treaty ratification is such an action.) It is for that reason that I emphasized in a later post that under our law generally the executive has the authority to depart from such treaties only in certain cases of clear emergency.

The question of the how to fit together American law and international law is one of the central jurisprudential and political issues of our time. I do not wish to be unduly provocative, but I have yet to see a demonstration that the world will be better off relying on international law than on action under the process of American law if the two conflict. Perhaps the day for preferring international law will come, but it will arrive only when the processes for creating international norms are more democratic and more disciplined than they are today.

5 Responses

  1. Thank you for this useful summing up. I think that the overview you give here clarifies one key point of disagreement between your views and those of some who have responded here.

    You consider the question whether it was “right” for a US commander to disregard certain provisions of the Geneva Conventions of 1929 “a data point in trying to resolve the tension between American and international law”. Leaving aside all argument over the answer to that question, I do not see why it serves as such a data point.

    It does not actually relate to any conflict between US and international law: There was no US statute either authorizing or requiring the commander to violate the treaty.

    Instead, the case simply provides a useful context for considering when laws – domestic or international – may rightly be broken.

    One could obviously debate this at a purely moral or ethical level without reference to any body of law. However, if one is going to debate it with reference to a legal regime, that regime should surely be that of international law. As one commenter observed, to refer to a particular state’s laws (or values) to decide the content of international law is deny that international law is actually a true normative system at all. (The irrelevance of internal law to questions of state responsibility cannot be seen as a mere technicality.)

    Instead of asking whether the US is exceptional, one should ask whether the circumstances were exceptional such that norms sounding in international law – including self-defence, necessity, or force majeur – would preclude the wrongfulness of the act. One could even ask whether some residual content of the norms of “sovereign equality” and “self-determination” provides a loophole. My sense is that the answer to these questions is “no”, but one might then attempt to construct an argument that the scope of these international norms should be expanded.

    It is worth considering that this is the basic form of argumentation that other countries generally employ to justify apparently unlawful conduct. (By far the most common justifications, of course, still being that the conduct didn’t actually happen or that it actually was consistent with the norm in question.) Other states, no matter how exceptional they may consider themselves internally – and every country is exceptional in its own way, no? – justify conduct implicating international norms with reference to other international norms. (Indeed, so does the US in international forums.)

    What good do you expect to achieve by encouraging the US to break the rules of international legal argumentation and try to persuade other countries that its – and only its – international legal obligations should be construed and limited by reference to its internal law?

  2. I doubt that even the strongest advocates of international law do not have serious complaints about some aspects of international law (e.g., the UN Charter’s Security Council’s permanent membership, comparatively weaker freedom of expression rights). However, even the strongest advocates of U.S. constitutional law have serious complaints about some aspects of constitutional law (e.g., right to abortion, allowance of the death penalty). Perhaps the question one should ask is if there had not been international law, what would the world look like now? The fact that international law predates the Constitution and continues to organize and inhibit state activities (including the U.S.’) must mean that international law does have some overriding benefits that even states recognize to such an extent that they curb their own less than altruistic behaviors. Comparing the relative merits of U.S. constitutional legal and international legal processes and their outcomes is an ambitious project, but perhaps our intellectual efforts should be focused more on addressing the SPECIFIC purported problems with the international legal system.

    More importantly, isn’t Prof. McGinnis’ project based on a false assumption. Is it really the case that it is “International Law vs. American Law”? As I have argued previously, American law is international law because the Constitution is a treaty. See Martin, The Constitution as Treaty (Cambridge Univ. Press 2007). Should not Prof. McGinnis’s heading of his posting been “The International Community vs. the Bush Administration”?

    Finally, Prof. McGinnis double-speaks by redefining “dualism” by claiming that treaty ratification is a way of implementing a treaty. If this were the case, there would be no monist states, and the word dualism would have no meaning.

    Francisco Forrest Martin

  3. John,

    I was very interested in the many learned comments to my post but my basic question remains unanswered: was not the United States right to violate the Convention even though it had seriously harmful consequences for certain individuals?

    In a classic formulation of an international law analysis, the issue would be addressed something like this:

    1) Is there an international legal obligation?

    2) Has it been breached in a manner attributable to the state?

    3) Is there an excuse for the wrongful act?

    4) What type of remedy should be provided?

    The answers would be to your hypo

    1) yes

    2) yes

    3) necessity (a defense permitted for the kind of breach in the hypothetical if I understand it as holding POW’s in isolation from other detainees but not in the kind of isolation (solitary confinement etc – see Padilla) that amounts to violations of higher norms in international humanitarian law (treaty or custom) such as secret incommunicado detention without ICRC access etc (see CIA Black Sites and what is alleged to be in the ICRC black sites report). If what the US did violated higher norms for which there was no excuse, then the answer to 3 would be no. Whether internally and externally we wish to acquiesce in that violation becomes the question of the remedy for that violation, if any.

    4) see 3



  4. Regarding Mr. Davis’ comment, what kind of remedy would one pursue against a state that committed such an offense? Perhaps a suspension in PoW communications as protest?

  5. Matthew,

    I don’t lay claim to special expertise in the interpretation of now superseded IHL treaties, but a quick consultation of its text suggests that suspending POW communications would be impermissible:

    Art. 2. Prisoners of war are in the power of the hostile Government, but not of the individuals or formation which captured them.

    They shall at all times be humanely treated and protected, particularly against acts of violence, from insults and from public curiosity.

    Measures of reprisal against them are forbidden.

    The treaty would appear to contemplate a kind of mediation by the protecting powers – today, in practice, the ICRC would play this role on behalf of all parties; perhaps someone else knows what the practice was at the time – to resolve issues that arise:

    Art. 87. In the event of dispute between the belligerents regarding the application of the provisions of the present Convention, the protecting Powers shall, as far as possible, lend their good offices with the object of settling the dispute.

    To this end, each of the protecting Powers may, for instance, propose to the belligerents concerned that a conference of representatives of the latter should be held, on suitably chosen neutral territory. The belligerents shall be required to give effect to proposals made to them with this object. The protecting Power may, if necessary, submit fur the approval of the Powers in dispute the name of a person belonging to a neutral Power or nominated by the International Red Cross Committee, who shall be invited to take part in this conference.

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