March 2013

Bradley Book Symposium: Response to the Commentary on International Law in the U.S. Legal System

[Curtis Bradley is the William Van Alstyne Professor of Law at Duke Law School.] I want to give my sincere thanks to the eight contributors who commented on my book this week as part of the Opinio Juris online symposium:  David Moore, Jean Galbraith, Julian Ku, Kristina Daugirdas, Bill Dodge, Mark Weisburd, Mike Ramsey, and Ingrid Wuerth.  Each of these contributors offered valuable feedback on aspects of the book, and I am extremely grateful for their insightful observations. The book covers a wide range of topics concerning the role of international law in the U.S. legal system, including the domestic status of treaties and customary international law, the validity of executive agreements, delegations of authority to international institutions, Alien Tort Statute litigation, sovereign and official immunity, criminal law enforcement, and the U.S. conduct of war.  At one time or another, I have written law review articles relating to most of these topics.  As the contributors to the symposium observed, however, the book is not an effort to re-argue positions that I have advanced in scholarship over the years.  Instead, I have attempted in the book to guide readers through the competing arguments in the relevant debates, while providing a general sense of how the law has evolved and where it stands at the present time. The book emphasizes considerations of constitutional structure, something that is now fairly common in scholarship relating to international law in the U.S. legal system but was less common when I began teaching and writing in the mid-1990s.  Another theme of the book is that when international law operates in the U.S. legal system, its role is often mediated by domestic laws and institutions.  This does not mean that international law is unimportant in the U.S. legal system, and in fact the book is filled with examples of the significant roles that international law can and does play.  But it does mean that the international law that is applied in the U.S. legal system has a distinctively American gloss.  The book further highlights how the U.S. legal system not only receives international law but also frequently contributes to it, on issues such as treaty reservations and sovereign immunity. The symposium contributors have addressed a number of specific propositions in the book.  Here are some brief comments on each of their posts:

Bradley Book Symposium: Ingrid Wuerth comments on International Law and War Powers

[Ingrid Wuerth is Professor of Law at Vanderbilt Law School] War Powers and the War on Terrorism, the final chapter of Professor Bradley’s book, is excellent.  To be sure, I disagree with Professor Bradley on some points, so had I written the chapter it would have approached certain issues differently.    But rather than use this space to rehash those debates, I would like to offer a few broader thoughts about the chapter and about the issues raised by the book. Beginning with the war powers chapter itself, what I missed most in the chapter was a clearer historical narrative.  The chapter could have moved forward chronologically, for example, perhaps treating jus ad bellum and jus in bello separately, and by giving a much richer account of international law and war (or the threat thereof), especially in the 18^th and 19^th centuries.  As it is, the history in this chapter is pressed into the service of contemporary debates and the extent to which early U.S. administrations and courts were consumed by issues of war-initiation and the rules of prize is somewhat lost.  Framing the chapter this way might also have given greater place to international law itself and how it developed over the past two centuries, situating the U.S. experience within those developments, rather than situating international law within domestic separation of powers disputes. Had Professor Bradley taken such an approach, however, he might have sacrificed brevity and clarity, especially for newcomers to the field – and the book is written in part for such readers. So maybe this is less a criticism of the chapter itself, and more a statement about the limitations of the genre.

Bradley Book Symposium: War Powers and the President’s Duty to Faithfully Execute International Law

[Michael D. Ramsey is Professor of Law at the University of San Diego School of Law] I join the other symposium participants in congratulating Curtis Bradley on a thoughtful, insightful and balanced treatment of an important topic.  This post briefly addresses his discussion of international law and war powers in the U.S. legal system (principally, Chapter 10 of the book) while noting some areas of agreement and disagreement. Bradley’s central message here is that international law plays a role in shaping U.S. war powers, but “[m]uch of the interpretation and enforcement of international law in this area occurs outside the courts, especially within the executive branch.  … [C]ourts do not typically enforce the international laws of war directly against Congress or the president.”  (p. 281).  Nonetheless, “[e]ven when courts are not involved, the U.S. government gives significant attention to the international laws of war, in part because of concerns about reciprocity with respect to the treatment of U.S. military personnel.”  (Id.) As the book discusses, a principal exception is the Supreme Court’s decision in Hamdan v. Rumsfeld, which found that President’s Bush’s military commissions for terrorism suspects violated Common Article III of the Geneva Conventions.  (The Court also made some references to international law in deciding the scope of the President’s war powers in its earlier war-on-terror decision Hamdi v. Rumsfeld).  True, Hamdan did not, strictly speaking, apply international law directly, as the Court invoked a statute requiring commissions to comply with the laws of war.  But as Bradley notes (p. 320), the Court surprisingly disagreed with the executive branch’s interpretation of the Conventions, thus imposing an international-law-based judicial check on presidential warmaking.  In general, though, the book finds Hamdan an outlier, instead emphasizing the extent to which, even in the war on terror, the integration of international law into U.S. warmaking policy has been principally a project of the executive and legislative branches. I agree with much of what Bradley says, so I’ll focus on a point where I don’t agree.  In my view the book underplays the constitutional and historical case that the President is bound by customary international law within the U.S. legal system, including in the exercise of war powers.

Bradley Book Symposium: The Discussion of Customary International Law

[Mark Weisburd is the Reef C. Ivey II Distinguished Professor of Law at UNC School of Law] Professor Curtis Bradley's International Law in the U.S. Legal System is an important contribution to the discussion of a topic of considerable significance.  Thorough in its coverage but accessible to readers with little familiarity with the subject, it is at once an excellent introduction (for someone with a legal background) to the issues it addresses and a useful compilation for those with some familiarity with the field. This contribution to the symposium addresses Bradley's chapter on the place of customary international law (CIL) in the federal law of the United States.  The space available precludes my considering all of the subjects of Bradley's chapter, and I will therefore confine my comments to two of them:  first, the implications of Sosa v. Alvarez-Machain for the methods federal judges use in identifying rules of CIL; second, current controversies over the generation of rules of CIL as a matter of international (not American domestic) law.

Bradley Book Symposium: Customary International Law in the U.S. Legal System and the Perils of an All-or-Nothing Approach

[William S. Dodge is Professor of Law and Associate Dean for Research at the University of California, Hastings College of the Law. He is the co-editor (with David L. Sloss and Michael D. Ramsey) of International Law in the U.S. Supreme Court: Continuity and Change (2011).] One of the many virtues of Professor Curtis Bradley’s new book International Law in the U.S. Legal System is that it presents both sides of the arguments. That is certainly true of the chapters addressing customary international law. For example, Curt and I have differed in the past over whether customary international law is part of the “Laws of the United States” under Article III of the Constitution, so that Congress may, if it wishes, grant the federal courts subject matter jurisdiction over suits arising under customary international law. But he points readers to my argument that customary international law does fall within Article III, while of course giving his own view that it does not (pp. 141-42, 199-200). Sometimes, however, a subtle slant can sneak into the way an issue is framed. In Chapter 5, Curt tells the by now familiar story that customary international law was understood at the framing to be part of general common law (pp. 142-46), that the Supreme Court’s 1938 decision in Erie Railroad v. Tompkins destabilized the situation by ending the general common law regime (pp. 146-47), and that Sabbatino, Filartiga, and the Restatement (Third) of Foreign Relations Law supported the possibility of customary international law as federal common law (pp. 147-52), before laying out his challenges to “the federal common law claim” (p. 155). He points out that if customary international law were federal common law for Article III purposes (as Filartiga held), then it might also preempt inconsistent state law under the Supremacy Clause of Article VI and bind the President under the Take Care Clause in Article II (pp. 152-54). “It is not clear,” he writes, “what federal law source exists for the wholesale incorporation of CIL into federal common law” (p. 156).