Day By Day

Tuesday, June 27, 2006

International Law

There is a fascinating discussion going on over at the Volokh Conspiracy on the subject of International Law; what it is and isn't, what authority it represents, when and how it applies, etc.

Some excerpts:

What started it was David Berenstein's observation:
I've noticed in a variety of contexts that there are some rather well-educated, articulate individuals out there who have what seems to me to be a fanatical, quasi-religious belief in "international law", and the idea that it should trump any other conflicting consideration. In the constitutional law field, this is reflected in the argument that the president and the courts should ignore domestic law and the Constitution if they conflict with international law--even if the United States isn't a party to any binding international agreements on the particular subject at hand.
He is particularly upset by assertions that Israel has no right to exist because it is in violation of this or that aspect of "international law". He asks:
[W[hen and how "international law" gained such cult-like status that well-educated people believe that merely invoking it (or their interpretation of it) is sufficient to settle even the most nuanced and contentious debates, that it should always trump domestic law, etc.
Some responses:

I frequently see "international law" used as a mere cover for "those are my political preferences." I think it's just a desire to add a certain aura of legitimacy to what would otherwise just be someone's opinion. Why is it more prevalent now? Probably just a function of our neverending linguistic inflation in all kinds of areas, not just this one.


For conservatives, it's "originalism."
For libertarians, it's "the market."
For some on the left, it's "international law."


I must admit, I'm one who does, in many cases argue for the adherence to international law. And, I believe international law cannot be trumped by state law--international law IS domestic law. The real question is: what is meant by international law? There is no way, for example, to argue that one ought not follow a treaty as it is not law. The value of treaties as law is expressed in the Constitution, in fact the Federalist, I believe 63(?), explains the importance and value of treaty adherence. I believe treaties to be binding law-- unless the state rescinds their ratification. When it comes to Customary International Law, there are very few crimes that which actually fall under a category that mandates adherence, and these crimes have been considered such, with slight modification since the time of Grotious. Much of the rest of "international law" is not law, but rather is forward thinking suggestions as to how states ought to co-exist. These ought to be followed as much as possible, but there is no binding nature on a state to do--nor should there be.

There are many, many, more.

Check them out here. They'll make you think, and that, as a famous criminal mastermind says, "is a good thing."

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