Summing up: International Law v. American Law
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.