INTERNATIONAL LAW

INTERNATIONAL LAW is traditionally under-stood to be the law governing the relations among sovereign states, the primary "subjects" of international law. Strictly speaking, this definition refers to public international law, to be contrasted with private international law, which concerns non-state actors such as individuals and corporations. Public international law originates from a number of sources, which are both created by and govern the behavior of states. Treaties or international agreements are a familiar source of international law, and are the counterpart of domestic contracts, which create rules for the states that accept them. Customary international law, which has fewer analogues in domestic law but which is binding as a matter of international law, originates from a pattern of state practice motivated by a sense of legal right or obligation. Particularly since World War II, international institutions and intergovernmental organizations whose members are states, most notably the United Nations (UN), have become a principal vehicle for making, applying, implementing and enforcing public international law.

The United States is a modified "dualist" legal system, which means that international law does not necessarily operate as domestic law. In fact, both the Congress and the president may violate international law under certain circumstances. Similarly, the Constitution is held superior to international law in the event of an outright conflict, and in such cases the courts will recognize the primacy of domestic legal authorities over international law. Article I, section 8 of the Constitution apportions certain exclusive powers related to foreign relations and international law to the Congress. These include the authority to declare war, to regulate international trade, to establish and maintain an army and navy and to establish rules governing them, and to "define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations." Otherwise, the president, as commander in chief and chief executive, exercises considerable unenumerated powers in such areas as the recognition of foreign states and governments, and is "the sole organ of the nation in its external relations, and its sole representative with foreign nations" (United States v. Curtiss-Wright Export Corp., 1936).

The Constitution likewise gives the president the power to negotiate treaties, subject to Senate advice and consent by a two-thirds majority. In the early 2000s, many of the nation's international agreements were nonetheless concluded as executive agreements, without congressional participation. While treaties, according to Article VI of the Constitution, are the supreme law of the land, U.S. courts make a distinction between "self-executing" treaties that will be applied as rules of decision in domestic litigation and those that will not. Article I, section 10 of the Constitution prohibits the states of the Union from entering into treaties or alliances, or from engaging in most other functions related to the conduct of foreign affairs.

Modern international law is generally taken to originate with the Treaties of Westphalia of 1648, which ended the Thirty Years' War. The system of co-equal sovereign states that resulted, with no authority such as an international legislature or court of general jurisdiction superior to that of the state, required the application of legal approaches different from those found in most municipal legal systems. Early treatments of international law by such writers as Hugo Grotius (1583–1645) were strongly influenced by concepts of natural law and the religious tradition on which it drew. In the nineteenth through the early twenty-first centuries, positivism became the dominant perspective in international law. In contrast to abstract principles of ethics or morality, legal positivism relies on affirmative acts of states to establish the law.

As demonstrated by the references in its Constitution, the United States has both acknowledged the importance of and contributed to the development of international law from the earliest days of the Republic. American contributions have been particularly important in the development of the law of neutrality, the body of law defining the rights and obligations of a third state adopting an attitude of impartiality toward belligerents in armed conflict with each other. During the first century of its existence, the law governing neutrality was among the most important international legal concerns of the new nation, whose commerce was dependent on the freedom to trade with belligerents on both sides of the French Revolution and the Napoleonic Wars.

Washington's Neutrality Proclamation of 1793, followed by the Neutrality Act of 1794, were innovations in the law of neutrality. Before asserting expanded rights as a neutral, the U.S. implicitly acknowledged the need to clarify the obligations associated with that legal status. These authorities stressed the then-new concept of neutral states' duties to regulate certain activities of their citizens. They further contributed to a distinction between acts which neutral governments and their citizens by international law are forbidden to commit, and acts which neutral governments are obliged to suppress. The United States alleged that its rights as a neutral state had been violated in disputes with Britain over its practice of seizing cargoes of U.S. merchant vessels trading with France and impressing U.S. sailors into the British navy, both precipitating factors leading to the War of 1812.During the Civil War, the United States was similarly assertive in pressing the duties of neutral states, most famously in the Treaty of Washington (1871) and the subsequent Alabama arbitration (1872), which established the liability of Great Britain for violating its legal status as a neutral state by allowing private parties under its jurisdiction to build and outfit vessels of war for the Confederacy. Since the late eighteenth century, the U.S. Supreme Court has advanced the development of international law in such areas as the immunity of foreign governments from suit.

The United States also substantially contributed to the use of international arbitration as a mechanism for the peaceful settlement of disputes between states. The Treaty of Amity Commerce and Navigation with Britain, popularly know as Jay's Treaty (1794), designed to address certain unsettled issues remaining after the American War of Independence, contained a number of arbitration clauses that were important developments in international law and practice. In the latter part of the nineteenth century, the United States and Great Britain conducted arbitration over fur seals in the Bering Sea (1893), and the American-Mexican Mixed Claims Commission, established by international convention in 1868, adjudicated more than 200 claims between 1871 and 1876.

In the late 1800s, the United States' approach to international law was influenced by peace movements advocating international arbitration as a mechanism for settling disputes and as an alternative to armed force. These trends bore fruit in the form of the Hague Peace Conferences of 1899 and 1907, of which the former established the Permanent Court of Arbitration. The United States, however, failed to participate in the next major step in the development of international arbitration: the establishment of the Permanent Court of International Justice (PCIJ) under the auspices of the League of Nations in 1920.Although the Senate failed to approve U.S. membership in the League of Nations, the United States signed the agreement establishing the PCIJ. A protocol was adopted in 1929 amending the PCIJ's Statute, the institution's governing instrument, in a manner intended be responsive to the concerns of the U.S. Senate so as to permit U.S. accession. That agreement, however, failed to receive the necessary two-thirds majority in a Senate vote in 1935. Nonetheless, a judge of U.S. nationality served on the court throughout its existence, which terminated at the end of World War II. In the interwar period, the United States also articulated and asserted an international standard of "prompt, adequate and effective compensation" as a remedy for governmental expropriation of foreign nations' property, a matter that continues to be both highly relevant and controversial in the law of foreign investment.

In the latter part of the twentieth century, dominated by the Cold War and the emergence of the United States as a global superpower, the United States continued in its rhetorical commitment to international law as a vehicle for ensuring a stable and peaceful world order. Among other things, it consented to the compulsory jurisdiction of the International Court of Justice the successor to the PCIJ, albeit with significant reservations. However, instances in which the International Court of Justice adjudicated that the United States had violated international law, most notably in mining Nicaraguan ports and supporting the Contra militias, tended to undermine some of the United States' credibility as an adherent to the rule of law. Criticisms have also been directed at the United States' apparent hostility to some major multilateral agreements including the United Nations Convention on the Law of the Sea, the Comprehensive Nuclear Test Ban Treaty, the Convention on the Rights of the Child, the Rome Statute of the International Criminal Court, the Kyoto Protocol on global climate change, and conventions adopted by the International Labor Organization.

With the end of the Cold War in the last decade of the twentieth century, international institutions and international law have become increasingly important. The creation of new intergovernmental national organizations such as the World Trade Organization and the European Bank for Reconstruction and Development, and the reinvigoration of international institutions like the UN Security Council, are evidence of the importance of the rule of law in the new millennium. The United States' reliance on the UN Security Council's prior authorization before initiating hostilities to expel Iraq from Kuwait (1991) was interpreted by many international lawyers as an indicator of a newly enhanced stature for international law and institutions. At the same time, the United States as the sole remaining superpower seems to be searching for an appropriate role for law in its foreign policy for situations such as Kosovo, in which U.S. and NATO intervention was not authorized by the Security Council and rested on an uncertain legal foundation. Two challenges to the application of capital punishment to foreign nationals, initiated by Paraguay and Germany in the International Court of Justice, suggest as well that in the United States international law may play a small role in the face of competing domestic political considerations.

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David A. Wirth

See also International Court of Justice; United Nations.