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

by Curtis Bradley

[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:

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

by Ingrid Wuerth

[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 18th and 19th 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.

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

by Michael Ramsey

[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.

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Bradley Book Symposium: The Discussion of Customary International Law

by Mark Weisburd

[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.

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

by William S. Dodge

[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).

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Bradley Book Symposium: Kristina Daugirdas on Delegations to International Institutions

by Kristina Daugirdas

[Kristina Daugirdas is Assistant Professor of Law at Michigan Law]

I’m delighted to have the opportunity to comment on Professor Curt Bradley’s excellent new book. Before getting to the question of how the decisions and orders of international institutions are integrated into U.S. law—Professor Bradley’s main focus in this chapter—it’s worth pausing to consider why states bother to create international institutions at all. States could have drafted a series of treaties that simply codified substantive obligations relating to various issue areas. Instead, they created institutions and delegated authority to them to do things like monitor how diligently states are implementing their international obligations, resolve disputes about the scope of those obligations, and revise those obligations in response to new technological developments or growing scientific knowledge. These delegations can make the regimes more effective by spurring compliance and ensuring that states’ international obligations remain current.

It’s exactly the features that make international institutions so useful that raise constitutional questions for the United States. For example, the Chemical Weapons Convention (CWC) establishes a Technical Secretariat whose tasks include monitoring states’ compliance with their obligations. This inspection regime makes the CWC more effective by increasing the likelihood that noncompliance will be exposed. But some scholars have argued that these provisions are incompatible with the Appointments Clause (because the inspections are undertaken by international officials) as well as the Fourth Amendment’s protections against unreasonable searches and seizures. (more…)

Bradley Book Symposium: The Reality of International Delegations

by Julian Ku

When I was just out of law school and desperately seeking advice as to what to write about, I turned to Professor Bradley for ideas.  He recommended that I buy Louis Henkin’s treatise Foreign Affairs and the United States Constitution (a book I had somehow never heard of during my three years of law school).  Amazon.com informs me that I followed Professor Bradley’s advice and bought the book on October 8, 1999.   Thus, thanks to Professor Henkin (and Professor Bradley!), much of my early academic work was inspired by what I learned about in the Henkin treatise.

As Professor Bradley advised me, the Henkin treatise is learned, concise, clear, and comprehensive.  But as much as I respect the treatise, I must admit I have never been happy with the idea of it being the authoritative statement of U.S. foreign relations law.  I found Henkin’s sometimes dismissive treatment of questions of constitutional structure frustrating.  In other words, I always believed that a new foreign affairs law treatise reflecting contemporary debates and understandings was needed.   Well, that treatise has finally arrived in the form of Professor Bradley’s International Law in the U.S. Legal System. (more…)

Bradley Book Symposium: The Scope of the Treaty Power

by Jean Galbraith

In February of 1793, President Washington’s cabinet debated the negotiating instructions for a forthcoming treaty with Indian tribes in the Ohio region.  One issue was whether they could authorize the cessation of land back to the Indian tribes.  Thomas Jefferson took the view that this lay outside of the delegated powers of the federal government.  Alexander Hamilton responded “that the power of treaty was given to [the President and the Senate] by the constitution, without restraining it to particular objects, consequently that it was given in as plenipotentiary a form as held by any sovereign in any other society.”  After the other two cabinet members expressed views more in line with Hamilton than Jefferson, Washington urged them all to reach a consensus.  “He seemed to direct those efforts more towards me,” Jefferson recorded dryly, “but the thing could not be done.”

Fast-forward to today – and we are still far from consensus on the exact contours of the treaty power in our constitutional system.  In a chapter on treaties in his excellent new book, International Law in the U.S. Legal System, Professor Curtis Bradley provides a doctrinal map of the treaty power, complete with thoughtful assessments of the level of certainty that attaches to each feature.  In this blog post, I’ll briefly describe Professor Bradley’s overall approach, then focus more specifically on Professor Bradley’s discussion of the scope of the treaty power, and close with a few remarks on the Bond case now pending in the Supreme Court. (more…)

Bradley Book Symposium: David Moore comments on Treaties

by David Moore

[David Moore is Professor of Law at BYU Law]

Curtis Bradley’s “International Law in the U.S. Legal System” is a welcome and significant contribution to U.S. Foreign Relations Law.  Like Louis Henkin’s “Foreign Affairs and the United States Constitution,” it will be a resource that scholars will want to consult and cite as well as recommend to their students and have on reserve.

The portion of the book on treaties addresses a wide-range of topics from treaty creation to non-self-execution to termination.  In addition to providing a clear overview of these topics and the sometimes unsettled questions they present, the discussion reveals an unspoken theme only partially captured by the book’s title.  Given its focus, the book is appropriately titled “International Law in the U.S. Legal System,” but the treatment of international law in U.S. law reveals that the interaction between U.S. and international law is not unidirectional.  International law affects U.S. law, even U.S. constitutional law, but U.S. law also affects international law.

On the incoming side of the relationship, international law produces a range of effects on the domestic legal order.  Most passively, international law presents questions that domestic law must answer.  For example, Bradley notes that the international law of treaties recognizes that state parties may terminate their agreements under certain circumstances, such as material breach of a bilateral agreement.  The international law option to terminate raises the question of who within the domestic order can exercise that option.   Moreover, international law might go further and influence the answer to that question as the nature of international law may functionally favor a particular actor as the one best suited to exercise the termination power.  This sort of effect has arguably occurred in the context of determining the subject matter scope of the treaty power.  Bradley notes repeated historical suggestions that treaty-making might extend only to certain types of treaties or at least to matters of international concern.  International law, however, defines “treaty” very broadly by reference to the nature of the contracting parties and the obligations assumed, largely without reference to subject matter restraints.  Consistent with this approach, treaty-making has spanned a vast range of issues.  The breadth of international treaty-making is almost certainly a contributing factor to the current sense that the Constitution does not impose subject matter limitations on the treaty power.  With the Supreme Court positioned to address subject matter limitations on the treaty-making power next term in Bond v. United States, the link between international law and domestic definition of the treaty power may be broken.  At this point, however, the connection is apparent. (more…)

Book Symposium on “International Law in the US Legal System” by Curtis Bradley

by An Hertogen

This week, we are hosting a symposium on Curtis Bradley’s new book “International Law in the US Legal System“, published last month by Oxford University Press. OUP has kindly agreed to offer Opinio Juris readers a 20% discount, which you can access by clicking on the ad at the right.

According to the abstract, the book

explores the dynamic intersection between international law and the domestic legal system within the United States and covers both settled principles as well as unresolved issues and areas of controversy. Curtis Bradley considers all of the principal forms of international law: treaties, decisions and orders of international institutions, customary international law, and jus cogens norms. He also explores a number of specific topics that are implicated by the intersection of U.S. law and international law, such as foreign sovereign immunity, international human rights litigation, extradition, war powers, and extraterritoriality. As he explains, international law plays an important and sometimes under-appreciated role in the U.S. legal system, but its domestic application is mediated by a variety of structural considerations, including federalism and the separation of powers. This book highlights recent decisions and events relating to the topic (including decisions and events arising out of the war on terrorism), while also taking into account relevant historical materials, including materials relating to the U.S. constitutional founding. The book is designed to be accessible to a wide range of lawyers, judges, law students, and policymakers, both inside and outside the United States.

Each day, two commentators will focus on a particular topic. David Moore (BYU) and Jean Galbraith (Rutgers) will kick off later today with a discussion on Treaties, Self-Execution, and Federalism. Tomorrow, Julian Ku (Hofstra, and of course OJ) and Kristina Daugirdas (Michigan) discuss Delegating Authority to International Institutions. On Wednesday, Mark Weisburd (UNC) and William Dodge (UC Hastings) address the Domestic Status of Customary International Law. On Friday, Michael Ramsey (San Diego) and Ingrid Wuerth (Vanderbilt) wrap up the symposium with a discussion on International Law and War Powers.

We hope that these comments will only be the start of the discussion and that our readers will join in in the comments.