The Law of Nations and the United States Constitution 019984125X, 9780199841257

Citation preview

  1

  i

The Law of Nations and the United States Constitution

ii

  iii

The Law of Nations and the United States Constitution

z ANTHONY J. BELLIA JR. BRADFORD R. CLARK

1 The Law of Nations and the United States Constitution. Anthony J. Bellia Jr. and Bradford R. Clark. © Oxford University Press 2017. Published 2017 by Oxford University Press.

iv

1 Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trademark of Oxford University Press in the UK and certain other countries. Published in the United States of America by Oxford University Press 198 Madison Avenue, New York, NY 10016, United States of America.

© Oxford University Press 2017 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by license, or under terms agreed with the appropriate reproduction rights organization. Inquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above. You must not circulate this work in any other form and you must impose this same condition on any acquirer. Library of Congress Cataloging-​in-​Publication Data Names: Bellia, Anthony J. Jr., author. | Clark, Bradford R., author. Title: The law of nations and the United States Constitution /​Anthony J. Bellia Jr.,   Bradford R. Clark. Description: New York : Oxford University Press, [2017] | Includes bibliographical   references and index. Identifiers: LCCN 2016039725 | ISBN 9780199841257 ((hardback) : alk. paper) Subjects: LCSH: Constitutional law—​United States. | Customary law,  International. Classification: LCC KF4550 .B373 2017 | DDC 342.73—​dc23 LC record available at https://​lccn.loc.gov/​2016039725 1 3 5 7 9 8 6 4 2 Printed by Edwards Brothers Malloy, United States of America Note to Readers This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is based upon sources believed to be accurate and reliable and is intended to be current as of the time it was written. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional services. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Also, to confirm that the information has not been affected or changed by recent developments, traditional legal research techniques should be used, including checking primary sources where appropriate. (Based on the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations.) You may order this or any other Oxford University Press publication by visiting the Oxford University Press website at www.oup.com.

  v

A.J. Bellia dedicates this book to his parents, Anthony and Maureen Bellia, and to Tricia, Kate, and Molly. Bradford R. Clark dedicates this book to his parents, Dr. John R. Clark and Dr. Anna Lydia Motto, exemplary scholars, teachers, and mentors.

vi

  vii

Contents

Acknowledgments 

ix

Introduction 

xi

PART ONE: The Traditional Law of Nations and the Constitution 1. The Law of Nations and the Constitution 

3

2. The Law Merchant and the Constitution 

19

3. The Law of State-​State Relations and the Constitution 

41

4. The Law of State-​State Relations in Federal Courts 

73

5. The Law Maritime and the Constitution 

113

PART TWO: Modern Customary International Law and the Constitution 6. Modern Customary International Law 

139

7. The Inadequacy of Existing Theories of Customary International Law and the Constitution 

149

viii

viii

Contents

PART THREE: Enforcement of Customary International Law in U.S. Courts 8. Judicial Enforcement of Customary International Law Against Foreign Nations 

193

9. Judicial Enforcement of Customary International Law Against the United States 

213

10. Judicial Enforcement of Customary International Law Against U.S. States 

245

Conclusion 

269

Index 

273

  ix

Acknowledgments

we owe a debt of gratitude to the many colleagues and students who generously contributed their time and resources to this project. Before writing this book, we wrote several articles that provided the foundation upon which the book is built. These projects would not have been possible without generous support from our respective institutions and the many comments, suggestions, and questions that we received from colleagues along the way. At Notre Dame, we received generous support from Deans Nell Newton and Patty O’Hara. At George Washington, we received generous support from Deans Paul Schiff Berman and Blake Morant. We thank them for the resources that made this book possible, and for their ongoing encouragement. We are also grateful to the many colleagues and friends who provided comments and suggestions on the chapters of this book and/​or related articles that preceded them, including Amy Barrett, Tricia Bellia, Paul Berman, Curt Bradley, Paolo Carozza, Doug Cassel, Anthony Colangelo, Michael Collins, Barry Cushman, Anthony D’Amato, Bill Dodge, Sam Estreicher, Jean Galbraith, Rick Garnett, Jack Goldsmith, David Golove, Philip Hamburger, John Harrison, Rick Hills, Duncan Hollis, Dan Hulsebosch, Bill Kelley, Dan Kelly, Randy Kozel, James Lee, Tom Lee, Renée Lerner, John Manning, Maeva Marcus, Mark McKenna, Jon Molot, Henry Monaghan, David Moore, Trevor Morrison, Sean Murphy, John Nagle, Jeff Pojanowski, Mike Ramsey, Jon Siegel, Linda Silberman, Ralph Steinhardt, Paul Stephan, Ed Swaine, Jay Tidmarsh, Amanda Tyler, Carlos Vázquez, Julian Velasco, Ingrid Wuerth, and Ernie Young. We are sure this list is incomplete, but our gratitude to those we have neglected to mention is no less. We are especially grateful to Tricia Bellia, Barry Cushman, Philip Hamburger, John Manning, Maeva Marcus, Mike Ramsey, and Carlos

x

x

Acknowledgments

Vázquez, who both provided comments on chapters and prior articles and gave us extensive comments on the book as a whole. In addition, Notre Dame research librarians Chris O’Byrne and Patti Ogden provided invaluable expert research assistance. We also had the good fortune to work with several student research assistants on the book and on the articles that preceded it. From George Washington, we thank Jonathan Bond, Jarret Erickson, Michael Jones, Ben Kapnik, Ali Naini, Scott Richardson, Heather Shaffer, Owen Smith, and Zach Tyree. From Notre Dame, we thank Nick Curcio, Stephen DeGenaro, Sean Dudley, Katie Hammond, John Lindermuth, Joseph Patterson, Erinn Rigney, Marissa Wahl, Carolyn Wendel, and Krista Yee. We also extend our gratitude to Val Clark and for careful editing and proofreading.

  xi

Introduction

In recent decades, judges, lawyers, and scholars have debated what role customary international law should play in the domestic courts of the United States. This question is of great importance to the United States, as it is to all other nations. Every domestic legal system must choose whether and how it will comply with its obligations under international law. Which institutions have authority to decide these questions under the U.S. Constitution remains contested. It is perhaps surprising that this question is still open to debate—​well over two centuries after adoption of the Constitution. One reason for the ongoing debate is that new rules of customary international law emerged in the twentieth century that the founders of the Constitution did not envision, and that they thus did not design the Constitution to accommodate. As these rules emerged, the political branches of the U.S. government—​namely, Congress and the President—​ took only limited steps to incorporate them into U.S.  law. Eventually, litigants began asking courts to incorporate such rules into U.S.  law. U.S.  courts, however, have only limited jurisdiction and powers under the Constitution relative to the political branches. Whether U.S.  courts have authority to incorporate customary international law into U.S.  law without adoption or authorization by the political branches turns on the Constitution’s precise allocation of powers among courts, Congress, and the President. Much is at stake in these debates. Whether and how a domestic legal system enforces customary international law has important implications for foreign relations and human rights. Modern customary international law seeks to protect fundamental human rights from governmental violations—​a matter of almost universal concern among nations. At the same time, how nations choose to enforce international obligations also has significant consequences for human rights. Enforcement of customary international law against a foreign nation can generate conflict, with

xii

xii

Introduction

potentially serious—​or even catastrophic—​human rights consequences. The extent to which a nation attempts to enforce human rights against other nations thus can involve a delicate balancing of competing human rights considerations. The domestic enforcement of customary international law also has deeper, systemic human rights implications. Stable and democratic systems of government advance human self-​determination (considered by many to be an important human right) and further the long-​ term protection of human rights generally. If one branch of government oversteps its assigned role and performs a function assigned to another branch—​including determining how to enforce international law—​it may unsettle domestic checks and balances and ultimately undermine human rights. It is no surprise, then, that questions regarding who decides how the United States will comply with its obligations under international law, and who decides how the United States will enforce international law against other nations, continue to receive widespread attention. Although academics have extensively considered the role of customary international law in U.S. courts, U.S. courts themselves have avoided making sweeping pronouncements about this role—​at least in recent decades. This disconnect between theory and practice stems in part from the high level of generality at which academics have framed the debate, and their assumption that a unitary theory can account for all forms of customary international law. The question of what role customary international law plays in U.S.  courts raises concrete issues regarding the proper allocation of powers in a constitutional structure that incorporates both separation of powers and federalism. Indeed, judges and scholars have generally understood questions regarding the domestic enforcement of customary international law to be constitutional questions—​informed by conventional sources of constitutional meaning, including the constitutional text, historical understandings, and judicial precedent. In determining the extent of their own power relative to the political branches or the states, federal judges typically treat these sources as relevant, if not determinative, considerations in a range of contexts. Existing academic accounts of the role of customary international law in U.S.  courts rely heavily on historical understandings and judicial precedent, but they characterize them at too high a level of abstraction to provide a sufficiently nuanced analysis of the constitutional questions presented. This book offers a new lens through which academics, judges, political actors, and anyone interested in constitutional governance in the United States may examine the role and status of customary international law in

  xiii

Introduction

xiii

U.S. courts. This new lens, however, is also an old one (even if forgotten for a time) insofar as it seeks to make better sense of the understandings, practices, and precedents of the past. In particular, the book explains that the law of nations has not interacted with the Constitution in any single overarching way. Rather, the Constitution was designed to interact in distinct ways with each of the three traditional branches of the law of nations that existed when it was adopted—​namely, the law merchant, the law of state-​state relations, and the law maritime. By disaggregating how different parts of the Constitution interacted with different kinds of international law, the book provides an account of historical understandings and judicial precedent that will help judges and scholars more readily identify and resolve the constitutional questions presented by judicial use of customary international law today. The question of how customary international law relates to the U.S. federal system continues to grow in importance. Over time, the political branches have codified many norms of customary international law as U.S. law. But certain traditional norms of customary international law regarding the sovereignty of foreign nations remain uncodified in federal law, even to this day. Whether and how courts enforce such norms absent direction from Congress and the President are questions with serious implications for both the foreign relations of the United States and the proper role of the judiciary in the constitutional design. At the same time, modern customary international law continues to evolve—​sometimes in controversial ways—​to limit the authority of nations to govern their own citizens in their own territory. Congress and the President have taken only limited steps to incorporate or reject such rules in U.S. law, leaving the status of many unclear in domestic law. This book, we hope, will help judges, lawyers, political officials, scholars, and indeed anyone interested in constitutional and international law, better understand the role and status of customary international law in U.S. courts under the federal structure established by the Constitution of the United States.

I The question of what role customary international law should play in U.S. courts predates the Constitution and, indeed, shaped its drafting in important respects. At present, there are three main theories regarding the role of customary international law in U.S. courts. All three of these theories take a one-​size-​fits-​all approach to the issue. In other words, all

xiv

xiv

Introduction

start from the premise that every kind of customary international law has the same status in U.S. courts—​no matter the nature of the rule in question or the use to which a litigant seeks to put it. Some scholars maintain that U.S. courts automatically may enforce all customary international law as a form of federal law.1 This view is known as the modern position. Others argue that U.S. courts may enforce no rule of customary international law until the federal political branches adopt it in a federal statute or treaty, or state officials adopt it as state law.2 This view is known as the revisionist position. A third group recommends treating all forms of customary international law as non-​preemptive general law.3 This view is known as the intermediate position. None of these approaches fully or accurately captures the more nuanced relationships that different branches of the law of nations have had with distinct provisions of the Constitution. In recent decades, the debate has intensified and remains far from settled. This book offers an alternative approach grounded in the Constitution’s design and structure. Although the Supreme Court of the United States has largely avoided taking sides in the current debate, it has decided numerous cases since the founding that bear on these issues. These decisions are not only consistent with, but also implement, this structural approach. The participants in the current debate rely primarily upon historical understandings and judicial precedent to support their respective positions. All agree that history and precedent are relevant to resolving this debate, if not determinative of it. Thus far, however, the debate has failed to consider the full historical and constitutional background relevant to

1. See, e.g., Lea Brilmayer, Federalism, State Authority, and the Preemptive Power of International Law, 1994 Sup. Ct. Rev. 295, 295; Louis Henkin, International Law as Law in the United States, 82 Mich. L.  Rev. 1555, 1555 (1984); Harold Hongju Koh, Is International Law Really State Law?, 111 Harv. L. Rev. 1824, 1826–​27 (1998); Beth Stephens, The Law of Our Land: Customary International Law as Federal Law After Erie, 66 Fordham L. Rev. 393, 397 (1997). This view is known as the modern position, and it is discussed in detail in Chapter 7. 2. See, e.g., Curtis A. Bradley & Jack L. Goldsmith, Customary International Law as Federal Common Law:  A  Critique of the Modern Position, 110 Harv. L.  Rev. 815, 870 (1997); A.M. Weisburd, State Courts, Federal Courts, and International Cases, 20 Yale J. Int’l L. 1, 2 (1995); Phillip R. Trimble, A Revisionist View of Customary International Law, 33 UCLA L. Rev. 665, 716 (1986). This view is known as the revisionist position, and it is also discussed in detail in Chapter 7. 3.  See, e.g., Michael D. Ramsey, The Constitution’s Text in Foreign Affairs 342–​61 (2007); Ernest A. Young, Sorting Out the Debate Over Customary International Law, 42 Va. J. Int’l L. 365, 369–​70 (2002). This view is known as the intermediate position, and it is discussed in Chapter 7.

  xv

Introduction

xv

the question. In keeping with the terms of the current debate, this book examines the text and structure of the Constitution, historical understandings of them, and judicial precedent on the status of customary international law in U.S courts under the Constitution. This examination reveals that the Constitution does not provide a unitary approach to the status of customary international law in U.S. courts. Rather, the status of such law under the Constitution depends upon the kind of international obligation at issue and how a litigant is asking a court to use it. The key to understanding the status of customary international law in U.S.  courts is to identify how distinct types of international obligations interact with specific provisions of the Constitution and the structure of government they create. Accordingly, this book offers an alternative to current approaches to customary international law in U.S.  courts—​an approach that determines the status of each kind of customary international law in U.S. courts on the basis of its distinct interactions with the Constitution’s design and structure. At the founding, the law of nations—​the predecessor to customary international law—​consisted of three major branches: the law merchant, the law of state-​state relations, and the law maritime.4 The founders were familiar with these different branches and consciously designed the Constitution to interact with each branch in distinct ways. Thus, the question of how customary international law originally fit into the U.S. legal system presents not one question, but at least three. To answer these questions, it is necessary to disaggregate the different historical categories of international law and then determine how each has interacted with the U.S. constitutional scheme.

4.  See 4 William Blackstone, Commentaries *66–​67; Edwin D. Dickinson, The Law of Nations as Part of the National Law of the United States, 101 U. Pa. L. Rev. 26, 26–​29 (1952); see also Anthony J. Bellia Jr. & Bradford R. Clark, General Law in Federal Court, 54 Wm. & Mary L. Rev. 655, 660 (2013) [hereinafter Bellia & Clark, General Law in Federal Court]. In addition, the law of nations was sometimes thought to include other related doctrines such as conflict of laws and enforcement of judgments. See Randall Bridwell & Ralph U. Whitten, The Constitution and the Common Law: The Decline of the Doctrines of Separation of Powers and Federalism 51 (1977) (describing admiralty, commercial law, and conflict of laws as comprising the law of nations); David L. Sloss, Michael D. Ramsey & William S. Dodge, International Law in the Supreme Court to 1860, in International Law in the U.S. Supreme Court: Continuity and Change 7, 8, 29 (David L. Sloss, Michael D. Ramsey & William S. Dodge eds., 2011) (describing different topics covered by law of nations); Stewart Jay, The Status of the Law of Nations in Early American Law, 42 Vand. L.  Rev. 819, 821–​22 (1989) (describing law merchant, law maritime, conflict of laws principles, and “law governing the relations between states” as comprising the law of nations).

xvi

xvi

Introduction

Once one understands the precise—​ and distinct—​ ways in which the Constitution was designed to take account of the three traditional branches of the law of nations, one is in a better position to evaluate the status of modern customary international law under the Constitution today. Modern customary international law did not exist at the founding, and it differs in fundamental respects from each traditional branch of the law of nations. Thus, it is not possible to determine the status of modern customary international law simply by analogy to how the Constitution has interacted with any or all of the three traditional branches of the law of nations. Rather, any attempt to determine the status of modern customary international law under the Constitution requires a careful evaluation of how such law itself interacts with the precise provisions of the Constitution and the structure of government it created.

II The law of nations played a crucial role in shaping the United States from its inception. In the Declaration of Independence, the British colonies in North America invoked the law of nations when they declared themselves to be “Free and Independent States,” entitled to the rights of sovereigns under such law, including “full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do.”5 Following the War of Independence, Great Britain “acknowledge[d]‌the said United States … to be free sovereign and independent states” in the Treaty of Paris that ended the war.6 “Free and independent states” was not a novel phrase unknown to the drafters of the Declaration of Independence and the Treaty of Paris. Rather, the concept of a “free and independent” state came from the law of nations. The founders’ use of this phrase indicated that they sought for the fledgling United States all of the sovereign rights and obligations that accompanied that status under the law of nations. The founders’ experience under the Articles of Confederation brought home to them the importance of the law of nations to the survival of the United States. During this period, U.S. states notoriously violated the law of nations, and Congress was all but powerless to prevent or redress such 5. The Declaration of Independence para. 32 (U.S. 1776). 6. Definitive Treaty of Peace Between the United States of America and his Britannic Majesty, Eng.-​U.S., Sept. 3, 1783, 8 Stat. 80.

  xvii

Introduction

xvii

violations. State violations of the law of nations posed serious threats to the peace and prosperity of the United States as a whole. When a state violated the law of nations—​by, for example, violating the Treaty of Peace with Great Britain—​the violation was attributable to the entire nation. Thus, state violations of the law of nations gave offended nations just cause to retaliate against the United States as a whole. States also threatened to deter international trade and commerce by discriminating against foreigners in state court proceedings. Many leading members of the founding generation became convinced that the United States needed a new Constitution in order both to prevent war and to foster economic prosperity.7 Accordingly, in adopting the Constitution, the founders gave the legislative, executive, and judicial branches of the federal government distinct responsibilities in relation to each branch of the law of nations. In this way, the founders designed the Constitution to ensure that the United States could both comply with its obligations under the law of nations and reap the benefits of such law in its interactions with foreign nations and their subjects or citizens. To understand the precise ways in which they designed the Constitution to achieve these objectives, it is necessary to understand the nature of each branch of the law of nations known to the founders. The law merchant, sometimes known as general commercial law, was a shared body of law—​variously described as based on custom and reason—​ that the courts of different nations (and U.S. states) jointly administered in order to facilitate international (and interstate) transactions among merchants.8 Nations (and U.S. states) incorporated the law merchant into their municipal law for their mutual benefit, and applied it widely to commercial transactions in order to encourage trade across borders. The law of state-​state relations referred to a set of rights and obligations that governed interactions between sovereign states.9 This branch of the law of nations was of central importance to the founders because it determined matters of war and peace. Respect for the rights and obligations of sovereign states was essential to maintaining peace and facilitating

7. James Madison, Vices of the Political System of the United States (Apr. 1787), reprinted in 9 The Papers of James Madison 345, 349 (Robert A. Rutland & William M.E. Rachal eds., 1975); 1 The Records of the Federal Convention of 1787, at 24–​25 (Max Farrand ed., 1911) (statement of Edmund Randolph). 8. See 1 Blackstone supra note 4, at *75, *273. 9. See Dickinson, supra note 4, at 26–​29.

xviii

xviii

Introduction

friendly relations between nations (and their citizens). A  nation’s most important rights at the time of the founding were known as “perfect rights.”10 These included the rights to enjoy liberty peaceably, to neutral use of the high seas, to conduct diplomatic relations, and to govern its own citizens in its own territory.11 Nations generally followed the law of state-​ state relations because it was in their mutual interest to do so. Violation of one nation’s perfect rights by another nation gave the offended nation just cause to retaliate, including by waging war. Accordingly, in the late eighteenth century, English courts generally followed the law of state-​state relations (incorporated as part of the common law) and left any decision to depart from such law to political officials authorized to exercise the political authority of the nation. The law maritime shared certain features with both the law merchant and the law of state-​state relations. The law maritime was sometimes used to describe certain aspects of the law of state-​state relations, such as the law of prize and other rules that admiralty courts applied to determine the respective rights of nations in their use of the high seas. In other respects, the law maritime—​like the law merchant—​governed certain private commercial transactions. Whereas the law merchant governed transactions on land, the law maritime governed transactions on the high seas and within the ebb and flow of the tide.12 For all such commercial transactions, application of a uniform body of general law encouraged people from different nations (and U.S.  states) to engage in commerce across borders. Given the importance of all three branches of the law of nations to the peace and prosperity of the United States, it is not surprising that numerous provisions of the Constitution were designed to interact with the background legal frameworks provided by the law merchant, the law of state-​state relations, and the law maritime. For this reason, it is not possible to understand the original meaning and function of these constitutional provisions without reference to the law of nations as it existed at the time they were adopted.

10. See Anthony J. Bellia Jr. & Bradford R. Clark, The Federal Common Law of Nations, 109 Colum. L. Rev. 1, 11 (2009) [hereinafter Bellia & Clark, Federal Common Law of Nations]. 11. Id. 12. See William A. Fletcher, The General Common Law and Section 34 of the Judiciary Act of 1789: The Example of Marine Insurance, 97 Harv. L. Rev. 1513, 1517 (1984) (describing the law merchant and the law maritime).

  xix

Introduction

xix

The founders used a variety of distinct means to enable the United States both to comply with the law of nations and to enforce it against other nations. Not all of these means are obvious to modern readers. The founders wrote the Constitution in language familiar to informed readers of their time, and some of this language has fallen into disuse. In context, however, the language they employed clearly conveyed important associations between the Constitution’s provisions and the law of nations. Indeed, these associations were too plain to require additional explanation at the time. The Constitution mentions the phrase “Law of Nations” only once (in the Offences Clause),13 but modern readers should not be misled to think that the Constitution was otherwise silent on the role of the law of nations in the federal system. Read against the relevant background context, numerous provisions of the Constitution have more to say about the role of the law of nations in U.S. courts than the modern reader initially may perceive. This frame of reference was so well established that it did not warrant explicit mention; its situational relevance would have been readily apparent to educated lawyers of the era. Taken together, the provisions implicating the law of nations carefully allocated responsibility among the federal branches of government both to ensure compliance with the three traditional branches of such law and, when necessary, to demand compliance from other nations. The most important of these constitutional provisions concerned the law of state-​state relations. How the United States handled this law directly affected matters of war and peace. Accordingly, the Constitution consolidated power in the federal political branches to deal with such matters. The Constitution authorized Congress and the President to undertake numerous actions—​most exclusive of state interference—​that were necessary to conduct foreign relations in accordance with the law of state-​state relations and to prevent or initiate war. Many of the constitutional provisions allocating these powers used terms and concepts drawn directly from the law of nations. Among other things, Article I empowered Congress to regulate commerce with foreign nations; to establish a uniform rule of naturalization; to regulate the value of foreign coin; to define and punish piracies and felonies committed on the high seas, and offenses against the law of nations; to declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water; to raise and support armies; 13. U.S. Const. art. I, § 8, cl. 10 (granting Congress power to define and punish “Offences against the Law of Nations”).

xx

xx

Introduction

to provide and maintain a navy; to make rules for the government and regulation of the land and naval forces; to provide for calling forth the militia to repel invasions; and to provide for organizing, arming, and disciplining the militia.14 Likewise, the Constitution empowered the President to take various actions relating to the law of state-​state relations. For example, Article II provided that the President shall be commander in chief of the army and navy of the United States, and of the militia of the several states, when called into the actual service of the United States; shall have power, by and with the advice and consent of the Senate, to make treaties, provided two-​ thirds of the senators present concur; shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls; and shall receive ambassadors and other public ministers.15 In addition to enabling Congress and the President to conduct foreign relations and decide matters of war and peace, the Constitution enlisted the federal judiciary to apply the law of nations as a set of default rules in certain types of cases. Although the founders did not grant federal courts unlimited jurisdiction to hear cases arising under the law of nations, Article III gave federal courts subject matter jurisdiction over several specific categories of cases and controversies likely to implicate the law of nations as then understood. This jurisdiction extended to cases arising under treaties (the law of state-​state relations); cases affecting ambassadors, other public ministers and consuls (the law of state-​state relations); cases of admiralty and maritime jurisdiction (the law of state-​state relations and the law maritime); controversies between citizens of different states (the law merchant); and controversies between a state, or the citizens thereof, and foreign states, citizens or subjects (the law merchant and the law of state-​state relations).16 The Constitution’s allocation of powers to the political branches of the federal government—​as designed at the founding and as understood by the Supreme Court in practice—​has generally determined how U.S. courts have treated the law of state-​state relations in cases falling within their jurisdiction. This allocation of powers has produced two overarching

14. Id. art. I, § 8. 15. Id. art. II. 16. Id. art. III, § 2.

  xxi

Introduction

xxi

default rules that have guided judicial decision-​ making throughout U.S. history. First, the Constitution’s exclusive allocation of powers to the political branches to recognize foreign nations has been understood to require courts and U.S. states to uphold the rights of recognized foreign nations under the law of state-​state relations. If a court failed to uphold the rights of a recognized foreign sovereign under such law, it would have negated the domestic effect of the political branches’ decision to recognize that nation as a sovereign with all the rights that accompanied that status under the law of state-​state relations. Under this constitutional allocation of powers, a court or state could no more deny a recognized nation the benefits and incidents of recognition than it could rescind recognition itself on behalf of the United States. Moreover, a court or a state that violated the rights of a recognized foreign nation under the law of state-​state relations historically would have given the offended nation just cause to wage war against the United States. Such action would have run counter to the Constitution’s decision to give the political branches, rather than courts or states, the power to determine if, when, and how the United States would go to war. Second, by assigning the reprisal, capture, and war powers exclusively to the political branches, the Constitution required courts and U.S. states to refrain from attempting to hold foreign nations accountable for their violations of the law of nations. In the eighteenth century, a nation could use a variety of accepted means to pursue redress against another for violating the law of nations, including diplomacy, espousal, retorsion, reprisals, captures, and war. The Constitution’s allocation of authority to perform these functions exclusively to the political branches gave them the sole power to decide whether, when, and how the United States would hold another nation accountable for violating the law of nations. Given this constitutional allocation of powers, courts and states could no more use judicial decrees to attempt to coerce foreign actors to make reparations for violating the law of nations than they could issue formal letters of marque and reprisal or authorize captures in response to such actions. To the contrary, the Constitution authorized the political branches—​and the political branches alone—​to deploy the standard means by which nations sought redress from one another for violating the law of state-​state relations. Taken together, these two judicial default rules reflected the Constitution’s exclusive allocation of authority to the political branches to decide whether the United States would confer, withdraw, or limit the incidents of recognition, and whether the United States would pursue

xxii

xxii

Introduction

redress against a recognized foreign nation for violating the United States’ or another nation’s rights under the law of nations. The Constitution, by design, interacted quite differently with the law merchant. Federal courts applied the law merchant not because the Constitution’s allocation of powers to the political branches in Articles I and II required them to do so, but rather because the Judiciary Act and the Process Acts authorized them to do so in the exercise of their Article III judicial power to hear controversies between citizens of different U.S. states or between citizens or subjects of a foreign nation and citizens of a U.S. state. In exercising such diversity jurisdiction, federal courts had power to apply the law merchant so long as state courts would apply it in deciding analogous cases under state law. In Erie Railroad Co. v. Tompkins,17 the Supreme Court held, in accord with early practice, that federal courts had no power to apply the law merchant if state courts would not apply it under state law. Thus, state law ultimately determined whether federal courts would apply the law merchant as a substantive rule of decision to cases within their jurisdiction. In contrast, the Constitution determined whether and how federal courts (and state courts) would apply the law of state-​state relations. Federal courts originally applied the law maritime for a hybrid set of reasons. The Constitution’s allocation of powers determined whether and how federal courts would decide an important category of maritime disputes governed by the law of state-​state relations—​most notably, prize cases. In contrast, Article III’s grant of admiralty and maritime jurisdiction permitted federal courts to apply the private law maritime to more routine maritime disputes. In the twentieth century, the Supreme Court held that this particular grant of Article III jurisdiction incorporated the private law maritime as federal law. This holding gave uncodified maritime law a unique status in U.S. courts as compared to the law of state-​ state relations and the law merchant. The distinct rules of modern customary international law that emerged in the twentieth century are not analogous to any of the three traditional branches of the law of nations, and thus cannot be assumed to interact with the Constitution in any of the distinct ways in which the traditional branches do. The feature of modern customary international law that distinguishes it from the traditional branches of the law of nations is that it provides rules governing how nations must treat their own citizens in

17. 304 U.S. 64 (1938).

  xxiii

Introduction

xxiii

their own territory. This kind of obligation is far removed from the kind of commercial transactions that the law merchant governed. It also (typically) has little relevance to matters arising on or relating to the high seas, subject to the law maritime. Moreover, the obligations imposed by modern customary international law on the internal governance of nations depart from a basic premise of the law of state-​state relations—​namely, that each nation enjoyed the right to govern its own citizens within its own territory. Because of these differences between modern customary international law and the traditional branches of the law of nations, it is not possible to ascertain the role or status of customary international law in U.S. courts simply by analogizing it to one of those traditional branches. That modern customary international law creates international obligations does not in itself determine its domestic effect in U.S. courts. The law merchant, the law of state-​state relations, and the law maritime were all based in large measure on international custom and practice at the founding. But each of these branches of the law of nations had its own distinct role and status in U.S. courts, depending in part on the context in which a litigant sought to enforce it. The existence of an international obligation has never been enough to establish an enforceable legal obligation in a U.S. court. Instead, the Supreme Court has determined the role of the law of nations—​or customary international law—​in U.S. courts on the basis of the specific kind of rule involved, the relationship between the rule and various constitutional provisions, and the context in which the litigant sought to enforce it. Even if modern customary international law were truly analogous to the traditional law of state-​state relations—​as proponents of the modern position claim—​an independent constitutional evaluation would still be necessary to determine whether and how it applies in U.S. courts. U.S. courts have never applied the law of state-​state relations reflexively regardless of the rule asserted or the context involved. In particular, while U.S. courts traditionally have upheld the rights of recognized foreign sovereigns under the law of state-​state relations, they have never taken the lead in enforcing obligations of such sovereigns under the law of state-​state relations against other nations or their officials. Ultimately, the status of any particular rule of customary international law in U.S. courts depends on how the application of that rule interacts, in context, with the Constitution and the structure of government it created. In examining the relationship between customary international law and the Constitution, it is useful to make two key distinctions.

xxiv

xxiv

Introduction

Initially, it is useful to distinguish judicial application of customary international law to enforce the rights of recognized foreign nations from judicial application of such law to constrain the conduct of foreign nations. Courts traditionally applied customary international law to enforce the rights of recognized foreign nations in order to uphold the Constitution’s allocation of the recognition power to the federal political branches. On the other hand, courts have declined to apply customary international law against recognized foreign nations in order to preserve the exclusive constitutional authority of the political branches to decide whether, when, and how to hold foreign nations accountable for their violations of such law. Moreover, it is useful to distinguish judicial enforcement of customary international law against foreign nations from judicial enforcement against the United States and its constitutent states. Today, litigants sometimes seek judicial enforcement of customary international law not only against foreign nations, but also against domestic actors. Thus, judicial application of customary international law in U.S. courts may take three different forms. First, litigants may ask courts to apply customary international law against foreign nations, governments, or officials to hold them accountable for their actions. Second, litigants may ask courts to apply such law to constrain or redress the conduct of the United States or its officials. Third, litigants may ask courts to apply customary international law to constrain or redress the conduct of U.S.  states, governments, or officials. Each application involves somewhat different constitutional considerations, and this book will examine all three from the founding to the present.18

III Part I of this book describes the three traditional branches of the law of nations and examines their relationship with the Constitution. Part II describes the emergence of modern customary international law in the

18. Parts of this book draw and build on some of our prior work, including Anthony J. Bellia Jr. & Bradford R. Clark, The Original Source of the Cause of Action in Federal Courts:  The Example of the Alien Tort Statute, 101 Va. L. Rev. 609, 631–​37 (2015); Bellia & Clark, General Law in Federal Court, supra note 4; Anthony J. Bellia Jr. & Bradford R. Clark, The Law of Nations as Constitutional Law, 98 Va. L. Rev. 729 (2012); Anthony J. Bellia Jr. & Bradford R. Clark, The Alien Tort Statute and the Law of Nations, 78 U. Chi. L. Rev. 445 (2011); Anthony J. Bellia Jr. & Bradford R. Clark, The Political Branches and the Law of Nations, 85 Notre Dame L. Rev. 1795 (2010); Bellia & Clark, Federal Common Law of Nations, supra note 10.

  xxv

Introduction

xxv

twentieth century, considers how it differs from the traditional branches of the law of nations, and explains why determining its status in U.S. courts requires an independent, context-​specific analysis of its interaction with the Constitution. Part III assesses how both modern and traditional customary international law interact with the Constitution in three distinct contexts. Part I of the book consists of Chapters 1 through 5, and examines how the traditional branches of the law of nations have interacted with the Constitution throughout U.S. history. Chapter 1 provides essential background by briefly describing the law of nations as it existed in the late eighteenth century, and outlining the ways in which the founders designed the Constitution to interact with each of its three main branches. The next four chapters discuss in detail how courts have understood the Constitution to interact with each branch of the law of nations from the founding to the present. Chapter 2 considers the Constitution’s treatment of the law merchant. Article III of the Constitution extended federal judicial power to controversies between citizens of different states, and controversies between citizens of U.S. states and foreign citizens or subjects—​collectively known as “diversity of citizenship” cases. At the time, the most important category of diversity cases involved disputes between merchants. Accordingly, in the decades following ratification, federal courts (like their state counterparts) applied the law merchant as general law in cases within their jurisdiction, and never more famously than in Swift v. Tyson.19 In such cases, however, early federal courts did not apply the law merchant as a form of federal law, or even use it to disregard local state law. To the contrary, the Swift Court explained that federal courts applied the law merchant when state courts would do the same, and acknowledged that federal courts should forgo application of the law merchant when state statutes or fixed local customs established a different rule. In the late eighteenth and early nineteenth centuries, however, the Supreme Court transformed Swift into the “the Swift doctrine” by expanding the traditional realm of general law and disregarding contrary local state common law. During the same period, states increasingly localized the law merchant. In light of these developments, the law applied by federal courts in diversity cases at the end of the nineteenth century often differed from

19. 41 U.S. (16 Pet.) 1 (1842).

xxvi

xxvi

Introduction

the law applied by state courts in similar non-​diverse cases. The Supreme Court eliminated this disparity in Erie Railroad Co. v. Tompkins20 by interpreting the Constitution to require federal courts to follow all forms of state law rather than their own conceptions of general law (in the absence of a controlling provision of supreme federal law). Thus, the Court held that, absent an applicable provision of the Constitution or an act of Congress, the Constitution recognized residual state authority to determine whether general law or state law would provide the applicable rule of decision in cases that fell within the concurrent or exclusive authority of the states. Importantly, however, Erie did not foreclose federal courts from applying other kinds of general law—​such as the law of state-​state relations—​to matters within the exclusive regulatory authority of the federal government, particularly matters within the foreign relations authority of the political branches. Indeed, the Supreme Court has found that the Constitution’s exclusive allocation of foreign relations powers to the federal political branches sometimes requires federal courts to apply rules derived from the law of state-​state relations. When the Constitution itself requires the application of such law, Erie poses no barrier. To the contrary, Erie expressly acknowledged that federal courts may disregard state law in matters governed by the Constitution. Accordingly, federal courts have applied the law of state-​state relations since the founding when necessary to uphold the Constitution’s exclusive allocation of recognition and other foreign relations powers to the political branches in Articles I and II. Chapter  3 considers the relationship between the Constitution and the law of state-​state relations. The Constitution empowered the political branches of the federal government to recognize foreign nations, and thereby commit the United States as a whole to respect their rights under the law of state-​state relations. The Constitution’s allocation of the recognition power to the political branches requires courts and states to uphold the rights of recognized foreign nations because failure to do so would contradict the decision to recognize those nations. Additionally, the Constitution gave the political branches exclusive authority to decide whether, when, and how to hold foreign nations accountable for their violations of the law of nations. Specifically, Articles I and II of the Constitution gave the political branches exclusive authority to pursue satisfaction from other nations through diplomacy or, failing that, to issue reprisals, authorize captures,

20. 304 U.S. 64 (1938).

  xxvii

Introduction

xxvii

or declare and make war. Because the Constitution vested these powers exclusively in the political branches, neither courts nor states can seek redress against foreign nations on their own without usurping the political branches’ constitutional authority. Chapter  4 considers in detail the Supreme Court’s treatment of the law of state-​state relations—​both before and after Erie. Since the founding, courts have applied traditional rules governing the rights and obligations of sovereign states not as a consequence of any specific jurisdictional grant, but when necessary to uphold both the Constitution’s allocation of powers to the political branches and the political branches’ exercise of those powers. Because the Constitution gave the political branches exclusive authority to recognize foreign nations, courts have upheld the rights of foreign sovereigns under the law of state-​state relations as an incident of recognition. Had courts disregarded the rights of foreign nations under such law, they would have contradicted the political branches’ decision to recognize those nations as equal and independent sovereigns, and also—​ for much of U.S.  history—​risked war against the United States. At the same time, courts have refrained from attempting to hold foreign nations accountable for violations of international law out of respect for the political branches’ exclusive authority to decide whether, when, and how to pursue redress against other nations. Chapter  5 considers the Supreme Court’s treatment of the law maritime. For more than a century, federal courts exercising admiralty and maritime jurisdiction applied the private law maritime as non-​binding general law, much as they applied general commercial law under the Swift doctrine. Two decades before Erie repudiated general law in diversity cases, however, the Court interpreted Article III’s grant of admiralty and maritime jurisdiction to incorporate the general law maritime as federal law. This decision served to carve out admiralty and maritime law as a unique enclave of federal common law authorized by Article III. Part II of the book—​consisting of Chapters  6 and 7—​describes the emergence of modern customary international law in the twentieth century and explains how such law differs from the traditional branches of the law of nations. It then proceeds to explain why the relationship between modern customary international law and the Constitution is not analogous to the distinct relationships that each of the traditional branches of the law of nations have with the Constitution. Chapter  6 describes how a new kind of customary international obligation—​modern customary international law—​emerged during the

xxviii

xxviii

Introduction

twentieth century, and how this kind of obligation differs from the three traditional branches of the law of nations known to the founders. The three main branches of the law of nations governed how nations or their citizens interacted with other nations or their citizens. A distinctive feature of modern customary international law is that it seeks to regulate how nations treat their own citizens within their own territory. Such law is different in kind from the traditional branches of the law of nations known to the founders—​and indeed contradicts certain basic principles of the law of nations as they existed in 1789. Because this kind of international obligation did not exist when the Constitution was adopted, the Constitution contains no provisions specifically designed or readily available to facilitate its application in U.S. courts. In light of this background, Chapter 7 discusses three current theories regarding the status of customary international law in U.S.  courts, and explains why none provides a complete or accurate account of how such law interacts with the Constitution. Proponents of what is known as the “modern position” advocate that U.S. courts should incorporate all rules of customary international law—​including modern rules—​as federal law. In other words, they argue that all forms of customary international law automatically qualify as federal common law capable of preempting state law. Proponents of what is known as the “revisionist position” advocate that U.S. courts should never incorporate any form of customary international law as federal law unless the political branches affirmatively adopt it in the exercise of their constitutional powers. In other words, they argue that customary international law can never preempt state law unless the federal political branches adopt it in a statute or a treaty. Proponents of the “intermediate position” advocate judicial application of customary international law as non-​binding general law, not federal law. Specifically, they argue that courts should apply customary international law as a kind of pre-​Erie general law incapable of preempting state law. All of these positions seek to apply a one-​size-​fits-​all approach to the status of customary international law in U.S.  courts. All three positions make a simple category mistake, however, in attempting to ground the role of modern customary international law in U.S. courts on precedent dealing with very different forms of international law. For example, proponents of the modern position have mistakenly equated modern customary international law with the law of state-​state relations—​an important subset of the law of nations—​that the Constitution’s specific allocation of powers required courts and states to uphold. Similarly, proponents

  xxix

Introduction

xxix

of the revisionist position have failed to recognize that the Constitution itself requires courts and states to follow the law of state-​state relations in certain circumstances. Accordingly, these theories do not provide a complete account of how federal courts should treat rules of customary international law today. It is not possible to determine how courts should treat modern rules of customary international law without evaluating how those rules interact on their own terms with the Constitution’s precise allocation of powers in practice. Moreover, modern customary international law may interact differently with the Constitution depending on the context—​specifically, whether it is being used to uphold the rights of recognized foreign nations or to hold such nations accountable for violations of such law. Distinct constitutional considerations also arise depending on whether a litigant seeks to enforce modern customary international law against foreign actors, federal actors, or domestic state actors. By taking account of these considerations, the structural approach that we describe conforms more closely to the Constitution’s precise allocation of powers and more accurately reflects the Supreme Court’s use of the law of nations from the founding to the present. Part III of the book—​consisting of Chapters 8 through 10—​considers how modern customary international law interacts with the Constitution in these different contexts. Chapter 8 begins by examining when U.S. courts may enforce customary international law against foreign nations. When the political branches of the United States recognize a foreign nation, recognition signifies that the United States (including its courts) will respect the rights of the nation in question under the law of nations. Of course, recognized nations not only have rights under the law of nations, but also have obligations toward other nations, including the United States. When a foreign nation fails to fulfill these obligations, litigants sometimes ask courts to adjudicate the violation and hold the nation accountable in some way. From the founding to the present, however, the Supreme Court has declined to permit U.S.  courts to undertake this role without clear authorization from the political branches to do so. The Court has disallowed such action because the Constitution allocates to the political branches exclusive authority to hold foreign nations accountable for their violations of international law. This constitutional allocation of powers applies whether a foreign nation violates traditional rights under the law of state-​state relations or rules of modern customary international law. In either case, the Constitution’s allocation of powers requires courts to wait for political branch authorization

xxx

xxx

Introduction

before attempting to redress or even adjudicate a foreign nation’s alleged violation. Chapter 9 considers when U.S. courts may apply customary international law to constrain or redress actions by the United States. This question is essentially the mirror image of the question of when U.S. courts must respect rights of foreign nations under the law of state-​state relations. As Chapter  8 explains, U.S.  courts have historically enforced the traditional sovereign rights of recognized foreign states against competing U.S. interests. Enforcement of traditional sovereign rights upholds recognition and leaves it to the political branches—​rather than the courts—​to decide whether, when, and how the United States should abrogate such rights. U.S.  courts, however, have not extended this practice to enforcement of modern customary international law against the United States. Such law seeks to constrain how a nation treats its own citizens within its own territory. Recognition of a foreign nation cannot fairly be taken to signify that the United States has committed to having its own courts enforce norms of this kind against the United States. Such enforcement would run afoul of basic features of the constitutional structure designed to check and balance federal power—​most important, the specific lawmaking procedures that the Constitution establishes for the adoption of supreme federal law. Thus, the rationale for applying traditional rules of the law of state-​state relations to constrain actions by the United States vis-​à-​vis foreign nations does not, in the absence of authorization by the political branches, extend to judicial enforcement of modern customary international law against the United States. Chapter  10 examines the related question of when U.S.  courts may enforce customary international law against U.S.  states. To answer this question, it is necessary, again, to distinguish the traditional sovereign rights of recognized foreign states from modern customary international law. U.S. states must uphold the traditional rights of recognized foreign states—​as must U.S.  courts—​as an incident of recognition under the Constitution. The same rationale does not extend to modern customary international law. Treating such law as an enforceable incident of recognition would contradict the well-​accepted and long-​standing meaning of recognition, as well as important features of the federal constitutional structure, including the political and procedural safeguards of federalism. The Conclusion briefly summarizes our structural account of the status and role of customary international law in U.S courts from the founding to the present.

  xxxi

Introduction

xxxi

Our review of the law of nations, the original constitutional design, and judicial application of customary international law over time reveals that modern customary international law differs in crucial respects from the three traditional branches of the law of nations. Thus, the fact that U.S. courts historically have applied these traditional branches of the law of nations in certain contexts cannot—​in and of itself—​establish the propriety of applying modern customary international law to restrict the actions of foreign nations, the United States, or U.S. states. Rather, how federal courts treat customary international law today depends, as it always has, on the kind of international obligation in question, how a litigant seeks to enforce it, and how enforcement of that obligation interacts with the U.S. Constitution. In the pages that follow, we hope to advance understanding of how different rules of customary international law have interacted—​and continue to interact—​with the Constitution, and to provide a clearer and more nuanced framework for evaluating when the Constitution requires or permits enforcement of different kinds of international obligations in U.S. courts.

xxxii

  1

PART ONE

Chapters 1–​5

The Traditional Law of Nations and the Constitution This Part describes the three traditional branches of the law of nations, explains how the founders designed the Constitution in precise ways to interact with each distinct branch, and recounts how U.S.  courts have applied each branch of the law of nations throughout U.S. history. At the founding, the law of nations was a body of law that was understood to arise variously from custom and practice, natural law, and mutual compacts and conventions. The law of nations had three distinct branches—​the law merchant, the law of state-​state relations, and the law maritime. Each branch addressed a different problem that arose between one nation (or its citizens) and another nation (or its citizens), and thus each posed different challenges and opportunities for the United States at its founding. The law merchant—​or general commercial law—​was a body of law that applied to disputes between merchants from different countries. The law merchant served to facilitate commerce between such merchants by providing a shared set of rules to govern their transactions. The law of state-​state relations provided a set of reciprocal rights and obligations that governed interactions among recognized sovereign nations. This law served to maintain peace and facilitate friendly relations between nations and their respective citizens. Finally, the law maritime governed both private transactions arising on or relating to the high seas, and the public rights and obligations of nations in the free and neutral use of the seas. The law maritime thus included some matters governed by the law of state-​state relations.

2

2 The Tr aditional L aw of Nations & the Constitution

In England, the common law incorporated all three branches of the law of nations, making them applicable in English courts. Following the Declaration of Independence, the American states individually adopted the common law of England, and by extension the three traditional branches of the law of nations. During the Articles of Confederation period, however, the states notoriously violated the law of state-​state relations and failed to apply the law merchant in a neutral and unbiased manner against foreign merchants. State violations and misapplication of the law of nations threatened the peace and prosperity—​and indeed the very survival—​of the United States. Accordingly, one of the main goals of the Federal Convention was to draft a Constitution that enabled the United States to comply with the law of nations and reap its benefits. Because the founders consciously departed from the kind of unitary national government found in England, there was no one-​size-​fits-​all solution to these problems. Instead, the founders designed the Constitution to interact with each branch of the law of nations in distinct ways. This Part identifies the various ways in which the Constitution was designed to interact with the law of nations, and explains how the Supreme Court has applied each branch of the law of nations in practice. This discussion lays essential groundwork for evaluating how modern customary international law—​unknown to the founders—​interacts with the Constitution today. Chapter 1 describes how the founders understood the three traditional branches of the law of nations, and how they designed the Constitution to interact differently with each branch. Chapter  2 examines how the Constitution was designed to interact with the law merchant in particular, and how the Supreme Court has treated such law in light of the constitutional structure. Chapter  3 describes how the Constitution was originally designed not only to enable the U.S.  government to comply with the law of state-​state relations and reap its benefits, but also to exercise the sovereign prerogative to hold other nations accountable for violating U.S. rights. Chapter 4 describes how the Supreme Court has treated the law of state-​state relations in practice, and how this treatment has both confirmed and implemented the original constitutional design. Finally, Chapter 5 addresses the law maritime. It describes how the Constitution was designed to interact with this branch of the law of nations, and how the Supreme Court came to distinguish the law maritime from the other branches.

  3

1

The Law of Nations and the Constitution

Before examining in detail how the three main branches of the law of nations have interacted with the Constitution since the founding, it is worth briefly reviewing the legal and historical context in which the Constitution was adopted. Many political leaders of the founding generation considered the law of nations to be crucial to the peace and prosperity of the United States. These founders were familiar with at least two prominent authorities on the law of nations: Emmerich de Vattel’s The Law of Nations and William Blackstone’s Commentaries on the Laws of England. When conflict arose between the American Colonies and the Crown in Parliament, the founders invoked the law of nations in the Declaration of Independence. Later, they struggled during the Articles of Confederation era to prevent state violations of such law. These experiences shaped the founders’ thinking about the law of nations and influenced how they would design a constitution to replace the Articles. According to Blackstone, the law of nations encompassed three distinct branches—​the law merchant, the law of state-​state relations, and the law maritime.1 The law merchant was a body of customary rules that governed commercial disputes among merchants, such as disputes over bills of exchange. The law of state-​state relations consisted of the rights and obligations of sovereign states vis-​à-​vis one another. The law maritime, which overlapped in some ways with both the law merchant and the law 1. 1 William Blackstone, Commentaries *66–​67. For a discussion of Blackstone’s treatment of the law of nations, see Mark Weston Janis, The American Tradition of International Law: Great Expectations 1789–​1914, at 2–​11 (2004). The Law of Nations and the United States Constitution. Anthony J. Bellia Jr. and Bradford R. Clark. © Oxford University Press 2017. Published 2017 by Oxford University Press.

4

4 The Tr aditional L aw of Nations & the Constitution

of state-​state relations, was a body of rules that governed certain disputes between private parties involving commerce and navigation on the high seas and adjacent waters. Vattel’s treatise focused on the law of state-​state relations—​arguably the most important branch of the law of nations. A “sovereign state,” Vattel explained, is any “nation that governs itself … without any dependence on a foreign power.”2 Such sovereign nations “are naturally equal, and receive from nature the same obligations and rights [as those of any other sovereign].”3 Nations were expected to respect each other’s sovereign rights or they would suffer negative consequences in their relations with other nations, including war. The English and early American experience with the law of nations provides crucial background context for understanding how the Constitution was designed to interact with each branch of the law of nations. The founders adopted a Constitution containing provisions specifically designed to enable the United States to comply with its obligations under the law of state-​state relations, hold other nations accountable for their violations of U.S. rights, and enjoy the increased interstate and international trade likely to result from neutral application of the law merchant and the law maritime. The Constitution created a federal system with various checks and balances, including separation of powers and federalism. In establishing this system, the Constitution did not include any provision expressly adopting the law of nations either as the supreme law of the land or as a basis for Article III jurisdiction. Instead, the Constitution employed particular terms and phrases drawn from the law of nations to grant specific powers to designated branches of the federal government, and to deny certain powers to the states. At the founding, one could not understand the constitutional provisions allocating these powers without reference to the law of nations. The founders considered these particular provisions sufficient to enable the United States both to comply with its obligations under the law of nations and to hold other nations accountable for their violations of such law.

I The law of nations—​sometimes known as general law—​was a body of law that writers on the law of nations described as arising variously from 2.  1 Emmerich de Vattel, The Law of Nations bk. I, § 4, at 10 (London, J.  Newberry et al. 1759). 3. Id. intro., § 18, at 6.

  5



The Law of Nations and the Constitution

5

custom and practice, natural law, and mutual compacts and conventions.4 Blackstone, whose Commentaries were well known to political leaders in America, described the law of nations as fulfilling the need for independent sovereign states to regulate mutual intercourse and maintain peace. Because “none of these states will acknowledge a superiority in the other, [the law of nations] cannot be dictated by any.”5 Rather, such law “depends entirely upon the rules of natural law, or upon mutual compacts, treaties, leagues, and agreements between these several communities.”6 Similarly, Vattel described the law of nations as consisting of “precepts prescribed by the law of nature to states,” as well as “[c]‌ertain maxims, and customs consecrated by long use, and observed by nations between each other as a kind of law.”7 As a whole, the law of nations—​whether derived from custom, reason, or compact—​took as its starting point the equality and independence of all nations. For this reason, the law of nations was not the command of some superior sovereign over other nations. Rather, the law of nations consisted of rules and practices that nations generally followed for their mutual benefit and security. In England, the common law incorporated much of the law of nations and thus made it part of the law of the land, or the “municipal” law. According to Blackstone, “municipal” law was “the rule by which particular districts, communities, or nations are governed.”8 In “common speech,” the expression “municipal law … applied to any one state or nation, which is governed by the same laws and customs.”9 Municipal law consisted of both local law and general law, and courts applied each kind of law in appropriate circumstances. Matters subject to local law were typically those that occurred within the territorial jurisdiction of a specific

4.  See David L. Sloss, Michael D. Ramsey & William S. Dodge, International Law in the Supreme Court to 1860, in International Law in the U.S. Supreme Court:  Continuity and Change 7 (David L. Sloss, Michael D. Ramsey & William S. Dodge eds., 2011), at 8–​9. For discussion of the natural and positive features of the law of nations, and their development over time, see David J. Bederman, The Spirit of International Law (2002); David J. Bederman, Customary International Law in the Supreme Court, 1861-​1900, in International Law in the U.S. Supreme Court, supra, at 91–​100. 5. Blackstone, supra note 1, at *43. 6. Id. 7. Vattel, supra note 2, at intro., §§ 7, 25, at 2, 7. 8. Blackstone, supra note 1, at *44. 9. Id.

6

6 The Tr aditional L aw of Nations & the Constitution

state and affected only that state, such as trusts and estates, property, local contracts, civil injuries, and crime.10 In contrast to local law, “general” law was understood to be a transnational body of rules, customs, and practices governing the relations between nations and between their citizens. Nations had an incentive to apply such law because it fostered peaceful relations and international commerce. Blackstone equated the phrases “general law” and “law of nations,” describing this law as a system of rules, deducible by natural reason, and established by universal consent among the civilized inhabitants of the world; in order to decide all disputes, to regulate all ceremonies and civilities, and to insure the observance of justice and good faith, in that intercourse which must frequently occur between two or more independent states, and the individuals belonging to each. This general law is founded upon this principle, that different nations ought in time of peace to do one another all the good they can; and in time of war as little harm as possible, without prejudice to their own real interests.11 In England, the general law of nations provided rules of decision for courts to the extent that the municipal law of England adopted them.12 By the eighteenth century, certain English judges and treatise writers endorsed the idea that the common law of England generally incorporated the law of nations. In 1764, Lord Mansfield observed “[t]‌hat the law of nations, in its full extent, was part of the law of England.”13 Blackstone also described the law of nations as part of the law of the land. He made clear, however, that adoption of the law of nations by the common law was necessary to render its judicial application legitimate: [S]‌ince in England no royal power can introduce a new law, or suspend the execution of the old, therefore the law of nations (wherever

10. Id. at *67–​68. 11. 4 id. at *66. 12. Philip Hamburger, Law and Judicial Duty 62, 249–​50 & n.43 (2008). 13. Triquet v. Bath, (1764) 97 Eng. Rep. 936, 938; 3 Burr 1478, 1482 (quoting Buvot v. Barbut, (1736) 25 Eng. Rep. 777, 778; 4 Burr 2016).

  7



The Law of Nations and the Constitution

7

any question arises which is properly the object of it’s jurisdiction) is here adopted in it’s full extent by the common law, and is held to be a part of the law of the land.14 According to Blackstone, the common law’s adoption of the law of nations enabled England to “be a part of the civilized world.”15 Although these writers described the law of nations as part of the law of England, each branch of the law of nations interacted in distinct ways with other parts of English law. English courts and writers commonly described the law merchant as “part of the law of England, which decides the causes of merchants by the general rules which obtain in commercial countries.”16 That the law merchant was “part of the law of England” did not mean, however, that the law merchant was superior to or preemptive of other laws of the land. If the law merchant (or any other part of the common law) contradicted an act of Parliament, then the act of Parliament prevailed. Moreover, the law merchant was subject to local deviations. English courts often enforced reasonable local customs that derogated from the common law of England. This included well-​established local usages that supplanted or supplemented the general customs of the law merchant.17 In adopting the customary law of merchants, the common law incorporated a body of law that inherently was adaptable to local circumstances, whether national or regional. In addition to the law merchant, the law of nations encompassed a set of reciprocal rights and obligations that governed interactions among recognized sovereign states. This law of state-​state relations served to maintain peace and facilitate friendly relations between nations and their respective citizens or subjects.18 The most important rights under the law of nations at the time of the founding were known as “perfect rights.” These included the rights to enjoy liberty peaceably, to exercise neutral rights on the high seas, to conduct diplomatic relations, and to govern within its

14. 4 Blackstone, supra note 1, at *67. 15. Id. 16. 1 id. at *273. 17. Anthony J. Bellia Jr. & Bradford R. Clark, The Federal Common Law of Nations, 109 Colum. L. Rev. 1, 14, 20–​22 (2009) [hereinafter Bellia & Clark, Federal Common Law of Nations]. 18. For shorthand, we often use the word “citizens” in this book to describe both “citizens” and “subjects.”

8

8 The Tr aditional L aw of Nations & the Constitution

own territory. Violation of a nation’s perfect rights by another nation gave the offended nation just cause to retaliate, including by waging war. In England, both the common law courts and the admiralty courts applied the law of state-​state relations in their respective jurisdictions. One of the most important categories of the law of state-​state relations—​the law of prize—​was administered exclusively by courts of admiralty. The law of prize determined the legitimacy of captures of enemy ships and cargo in times of conflict between nations. Admiralty courts took care in adjudicating questions of prize because mistakes could trigger or escalate a war. Common law courts likewise sought to uphold the rights of foreign states under the law of state-​state relations, such as the rights and immunities of foreign ambassadors. They often strained to find constructions of municipal law that would avoid conflicts with this branch of the law of nations. They also applied rules derived from such law as part of the common law. Judicial application of the law of nations in England had significant implications for the powers of the government as a whole over foreign relations. The immunity of foreign ambassadors that common law courts recognized in civil proceedings is illustrative. The application of such rules was not merely a matter of applying the common law; it also served to uphold the foreign relations authority of officials entrusted with the sovereign power of the nation. In England, the Crown had the power over the usual means of recognizing foreign nations—​by sending and receiving ambassadors,19 or by making treaties.20 By respecting other nations’ perfect rights under the law of nations, English courts upheld the Crown’s decision to recognize a foreign nation as an independent sovereign entitled to the benefit of certain well-​known rights under the law of state-​state relations. Moreover, in England, the Crown had power to determine whether, when, and how England would retaliate against other nations,21 including by going to war.22 In the absence of authorization from the Crown to retaliate in some way, English courts avoided departing from those nations’ rights under the law of state-​state relations and thereby giving other nations just cause for war against England.

19. 1 Blackstone, supra note 1, at *254. 20. Id. at *257. 21. Id. at *257–​59. 22. Id. at *257.

  9



The Law of Nations and the Constitution

9

In the late eighteenth century, the common law recognized the limited jurisdiction of admiralty courts in England and allowed them to apply the law maritime to disputes within their jurisdiction. Such disputes involved matters arising on or relating to the high seas or waters within the ebb and flow of the tide. As a result of a long-​standing rivalry between common law and admiralty courts in England, English courts understood the “law of the sea” (the law maritime) to govern a sphere distinct from that governed by the “law of the land” (municipal law).23 If a court of admiralty attempted to exercise jurisdiction over a case governed by municipal law, the common law courts of Westminster (courts that administered the municipal law of the land) would issue a writ of prohibition to the admiralty court, effectively sending the case to a common law court. Although admiralty and common law courts often disputed the precise line between their respective jurisdictions, they acknowledged that admiralty courts generally lacked jurisdiction over cases governed by municipal law and that common law courts generally lacked jurisdiction over cases governed by maritime law.

II During the critical period following the American Revolution and before the Constitution’s adoption in 1789, incorporation of—​and compliance with—​the law of nations fell to the thirteen newly-​independent states. On July 4, 1776, the Continental Congress of the thirteen colonies in North America declared that the colonies were no longer part of the British Empire, but instead were free and independent states. The colonies asserted their independence from Great Britain in the Declaration, and claimed for themselves the rights of sovereign states under the law of nations.24 After reciting “a History of repeated Injuries and Usurpations” by King George III against the colonies, the Declaration proclaimed: That these United Colonies are, and of Right ought to be Free and Independent States; that they are absolved from all Allegiance to

23. Bellia & Clark, Federal Common Law of Nations, supra note 17, at 22–​24 [hereinafter Bellia & Clark, Federal Common Law of Nations]. 24.  See David M. Golove & Daniel J. Hulsebosch, A Civilized Nation:  The Early American Constitution, the Law of Nations, and the Pursuit of International Recognition, 85 N.Y.U. L.  Rev. 932, 942 (2010). See generally David Armitage, The Declaration of Independence: A Global History (2007).

10

10 T he Tr aditional L aw of Nations & the Constitution

the British Crown, and that all political Connection between them and the State of Great-​Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do.25 The phrase “Free and Independent States” referred to the status of sovereign states under the law of nations. If these “United States” achieved this status, then other nations would have to respect their rights under the law of nations to prevent and vindicate injuries by other nations (“Power to levy War” and “conclude Peace”), make treaties (“contract Alliances” and “establish Commerce”), enjoy neutral use of the high seas (“establish Commerce”), and exercise territorial sovereignty and diplomatic rights (“all other Acts and Things which Independent States may of right do”). As the Declaration of Independence demonstrates, political leaders of the Revolutionary generation were familiar with not only the rights of free and independent states under the law of nations, but also the corresponding obligations of such states to respect the rights of other states under such law. England, as mentioned, had incorporated principles of the law of nations through the common law in order to meet its obligations to other countries and facilitate commerce. After declaring their independence from Great Britain, the American states followed the English model by applying the law of nations—​including the law of state-​state relations and the law merchant—​ as part of their municipal law. Each state adopted the common law of England and, by extension, key parts of the law of nations. “[E]‌leven of the original thirteen colonies immediately adopted ‘receiving statutes’ expressly incorporating the common law as state law.”26 The twelfth state, New Jersey, received the common law by including a similar provision in its Constitution of 1776.27 Connecticut did not adopt a written constitution until 1818, but its judiciary quickly incorporated the common law into its unwritten constitution “so far as it

25. The Declaration of Independence paras. 2, 32 (U.S. 1776). 26.  John A. Ferejohn & Larry D. Kramer, Independent Judges, Dependent Judiciary: Institutionalizing Judicial Restraint, 77 N.Y.U. L. Rev. 962, 1027 n.307 (2002). 27. Ford W. Hall, The Common Law: An Account of Its Reception in the United States, 4 Vand. L. Rev. 791, 799 (1951).

  11



The Law of Nations and the Constitution

11

corresponds with our circumstances and situation.”28 Accordingly, prior to ratification of the Constitution, state courts applied the law of nations as part of their respective states’ municipal law. A famous Pennsylvania case predating the Constitution illustrates the states’ incorporation of the law of nations as part of the common law. The defendant (Longchamps) was indicted at common law for assaulting and threatening the Consul General of France (Marbois) “in violation of the law of nations, against the peace and dignity of the United States and the Commonwealth of Pennsylvania.”29 Chief Justice M’Kean described the case as one “of first impression in the United States” that “must be determined on the principles of the law of nations, which form a part of the municipal law of Pennsylvania.”30 The jury convicted the defendant, and the Chief Justice reiterated that the law of nations, “in its full extent, is part of the law of this State.”31 Although the states understood the law of nations to be part of their common law, they also had a notorious tendency to violate it in the years leading up to the Constitution’s adoption. The law of nations required compliance with treaties, and some American states failed to comply with the 1783 Treaty of Paris ending the War of Independence with Great Britain. In particular, some states impeded British creditors from recovering debts—​in violation of the treaty—​by imposing statutory impediments and by misapplying the law merchant.32 Under the law of nations, treaty violations gave the offended nation just cause to retaliate, including by war. States also violated the law of nations by failing to punish or otherwise redress acts of violence committed by their citizens against British subjects.33 States committed even more serious violations by failing to respect the rights of foreign ambassadors and by mishandling cases involving them.34 The Continental Congress tried but was unable

28. 1 Zephaniah Swift, A System of the Laws of the State of Connecticut 1 (1795). 29. Respublica v. De Longchamps, 1 U.S. (1 Dall.) 111, 111 (Pa. Oyer & Terminer 1784) (emphases omitted). 30. Id. at 114 (emphases omitted). 31. Id. at 116. 32. See Anthony J. Bellia Jr. & Bradford R. Clark, The Alien Tort Statute and the Law of Nations, 78 U. Chi. L. Rev. 445, 498–​501 (2011). 33. See id. at 501–​03. 34. Id. at 466–​68.

12

12 T he Tr aditional L aw of Nations & the Constitution

to persuade the states to adhere strictly to the law of nations during this period.35 Prominent members of the founding generation were well aware that the states’ repeated violations of other nations’ rights under the law of state-​state relations threatened the United States’ ability to achieve greater recognition of their own rights under such law and risked triggering war. In April 1787, James Madison wrote that state violations of the law of nations posed grave dangers to the peace and security of the United States: From the number of Legislatures, the sphere of life from which most of their members are taken, and the circumstances under which their legislative business is carried on, irregularities of this kind must frequently happen. Accordingly not a year has passed without instances of them in some one or other of the States. The Treaty of peace—​the treaty with France—​the treaty with Holland have each been violated. The causes of these irregularities must necessarily produce frequent violations of the law of nations in other respects. As yet foreign powers have not been rigorous in animadverting on us. This moderation however cannot be mistaken for a permanent partiality to our faults, or a permanent security agst. those disputes with other nations, which being among the greatest of public calamities, it ought to be least in the power of any part of the Community to bring on the whole.36 When Edmund Randolph opened the Federal Convention of 1787, one of the primary defects he identified with the Confederation was its inability to prevent or redress “acts against a foreign power contrary to the laws of nations.” He concluded that the Confederation “therefore [could not] prevent a war.”37 A  top priority of the Convention was to devise a new constitution that would transfer to a new federal government the nation’s responsibility for upholding the rights of foreign sovereigns under the law 35. Id. at 494–​98. 36.  James Madison, Vices of the Political System of the United States (Apr. 1787), reprinted in 9 The Papers of James Madison 345, 349 (Robert A. Rutland et al. eds., 1975). 37. 1 The Records of the Federal Convention of 1787, at 24–​25 (Max Farrand ed., 1966). See Janis, supra note 1, at 56 (“[I]‌t was the inability of the United States under the Articles of Confederation to live up to its obligations as a sovereign state under international law which proved to be one of the principal causes of the downfall of that early form of US government.”).

  13



The Law of Nations and the Constitution

13

of nations, which in turn would minimize the risk of unintended wars and encourage international trade.

III The Constitution was designed to enable the United States to meet its obligations under the law of nations and to reap the benefits and protections that the law of nations afforded sovereign nations. It is important to observe at the outset, however, that the Constitution did not include any general provisions adopting the law of nations as law of the United States or giving federal courts jurisdiction to hear cases arising under the law of nations per se. Nor did the Constitution confer upon the federal government a general police power that unitary sovereign nations such as England possessed. Rather, the Constitution created a federal system that divided sovereignty both by retaining the individual states to govern local matters and by creating a tripartite federal government vested with limited and enumerated powers to govern external matters of concern to all the states—​particularly matters relating to war, peace, and foreign relations. The Constitution enabled the United States both to meet its obligations under the law of nations and to enjoy its benefits by empowering federal legislative, executive, and judicial officials to uphold and apply all three branches of the law of nations in distinct and specific ways. At the same time, the Constitution disabled states from taking actions that could interfere with the United States’ ability to comply with the law of nations or to conduct foreign relations. Each traditional branch of the law of nations in its own way implicated the safety, security, or economic well-​being of the nation. Leading founders were aware of these implications from their experience under the Articles of Confederation. Accordingly, they designed specific provisions in the Constitution—​involving various branches of the government—​to handle the unique challenges and opportunities that each branch of the law of nations presented for the United States. As previously mentioned, the law merchant was a general body of law that provided a uniform set of rules to govern and facilitate commercial transactions between merchants from different states or nations. The primary problem for the United States with respect to the law merchant was that individual states had not applied it fairly to foreigners, thus harming the economic interests of the United States as a whole. The Constitution gave Congress the power to create lower federal courts and vest them with

14

14 T he Tr aditional L aw of Nations & the Constitution

“diversity of citizenship” jurisdiction over cases likely to be governed by the law merchant, thereby providing a potential alternative to adjudication in state court. This jurisdiction extended to controversies “between Citizens of different States” and “between … the Citizens [of a State], and foreign … Citizens or Subjects.”38 Such jurisdiction did not empower federal courts to dictate or alter the content of the law merchant; rather, it merely authorized a neutral federal forum to apply such law in order to prevent the possible discriminatory application of such law in state court. Although Article III did not give federal courts power to alter or reject the law merchant, Article I did grant Congress at least some power to do so. In Article I, the Constitution gave Congress power to regulate interstate and international commerce—​and thus to make laws that could alter how the law merchant operated in certain respects. In this way, the Constitution enabled Congress—​like the English Parliament—​to depart from the law merchant or preclude local deviations from it if necessary to regulate foreign commerce. Had Congress passed a statute regulating interstate or foreign commerce that altered or adopted the law merchant in some part, that statute—​as “the supreme Law of the Land”—​would have preempted contrary state law. Congress, however, had good reason not to depart from the law merchant in the early years of the republic. The law merchant facilitated commerce precisely because it was not the fixed law of a particular sovereign, but a general body of customary law common to many states and nations. It was also adaptable to accommodate established local usages. These qualities encouraged merchants to engage in commercial transactions with their foreign counterparts. The primary challenge the United States had faced with respect to the law merchant under the Articles of Confederation was not its content, but its fair application by state courts. Accordingly, the First Congress took steps not to alter the content of the law merchant, but merely to enable federal courts to hear cases brought by merchants, free from state court bias or procedural obstacles. The law of state-​state relations was the most important branch of the law of nations to the peace and security of the United States because it governed the rights and obligations of sovereign states vis-​ à-​vis each other, and a violation of such law could lead to war. Under the Articles of Confederation, states violated the rights of foreign nations under the law

38. U.S. Const. art. III, § 2, cl. 1.

  15



The Law of Nations and the Constitution

15

of state-​state relations in various ways, leaving the United States open to justified retaliation by offended nations. The Constitution addressed this problem through several specific provisions designed to enable the United States to uphold the rights of foreign nations under the law of state-​state relations, and to decide whether, when, and how to hold other nations accountable for any violations of U.S. rights. As Chapter 3 will discuss in detail, the Constitution empowered federal courts to hear certain categories of cases likely to implicate the law of nations and thus U.S. foreign relations. The Constitution’s assignment of foreign relations powers to the political branches—​and the exercise of such powers by those branches—​ often required courts (and states) to uphold the rights of foreign nations under the law of state-​state relations in the absence of contrary instructions from the political branches. The Constitution vested the political branches with several substantive powers derived from—​and necessary to comply with and enforce—​the law of state-​state relations. For example, Article II gave the President the power to “receive Ambassadors,”39 and the powers by and with the advice and consent of the Senate to “make Treaties” and “appoint Ambassadors.”40 These powers constituted the primary means by which one nation recognized another, and thereby signified respect for that nation’s rights as a free and equal sovereign under the law of nations. In addition, Article I gave Congress the powers “[t]‌o declare War, grant Letters of Marque and Reprisal, and make Rules governing Captures on Land and Water.”41 These powers contain terms of art drawn directly from the law of state-​state relations. It thus was not possible to understand, uphold, or implement these powers without regard for how the law of nations operated. By allocating these powers solely to Congress, the President, or the President acting with the Senate, the Constitution entrusted the federal political branches with the crucial responsibilities of deciding whether, when, and how the United States would both comply with its obligations to other nations under the law of state-​state relations and enforce its rights against other nations under the same law. Because respect for the rights of foreign sovereigns as defined by the law of state-​state relations was necessary to maintain friendly relations and avoid the risk of war, the Constitution gave

39. Id. art. II, § 3. 40. Id. art. II, § 2, cl. 2. 41. Id. art. I, § 8, cl. 11.

16

16 T he Tr aditional L aw of Nations & the Constitution

the political branches—​rather than courts or states—​the exclusive power to decide whether, when, and how the United States would depart from such law. This conclusion does not rest on the general observation that the Constitution assigns various foreign relations powers to the federal government. Rather, this conclusion derives from the precise language employed by Articles I  and II to grant specific powers to the political branches—​language drawn from, and whose meaning can only be understood in light of, background principles of the law of nations. The specific language of the Constitution also enlisted courts to ensure U.S. compliance with the law of nations. To advance their goal of avoiding violations of the rights of foreign sovereigns under the law of nations, the founders gave the federal courts jurisdiction over several categories of cases and controversies likely to involve the rights of foreign nations under the law of state-​state relations. Article III, as explained, gave federal courts power to hear “Cases affecting Ambassadors,” “Cases of admiralty and maritime jurisdiction,” and controversies “between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.”42 Each of these categories involved controversies governed by the law of state-​state relations. By empowering Congress to assign these cases to federal courts, the founders hoped to avoid the violation of sovereign rights that foreign nations suffered in state courts during the Confederation period. The law maritime was the third branch of the law of nations. Like the law merchant, the law maritime facilitated commerce among nations. The law maritime was a general body of law designed to provide a uniform set of rules governing private transactions on the high seas and within the ebb and flow of the tide. Again, the Constitution extended federal judicial power to cases governed by the law maritime to ensure its fair and impartial application. Congress could have adopted the law maritime or altered its content pursuant to its power to regulate commerce with foreign nations. As in the case of the law merchant, however, the founders were concerned not with the content of the law maritime, but with its unfair application by state courts. During the Confederation period, some states were notorious for their questionable applications of the law maritime. The Constitution addressed this concern by extending the federal judicial power “to all Cases of admiralty and maritime Jurisdiction.”43

42. Id. art. III, § 2. 43. Id.

  17



The Law of Nations and the Constitution

17

This jurisdiction would enable federal courts to apply the law maritime more uniformly and neutrally than state courts had applied it during the Confederation era. Admiralty and maritime jurisdiction encompassed not only cases involving private maritime commerce, but also cases implicating public sovereign rights, and therefore war and peace. In England and America, admiralty courts sat as both “instance courts”—​to hear private maritime disputes—​and “prize courts”—​to adjudicate the legality of captures on the high seas. Prize cases involved the capture of ships and goods of another country, and were governed by the law of state-​state relations. Under that law, a nation’s failure to redress erroneous or unauthorized captures by its citizens could lead to war. Accordingly, the Constitution enabled federal courts to hear prize cases, and the First Congress acted quickly to grant federal courts exclusive jurisdiction over prize cases in the Judiciary Act of 1789. In some cases, the Constitution expressly prohibited states from taking certain actions that could violate the law of nations or lead the United States into conflict with other nations. These prohibitions fell into two categories: absolute and conditional. The Constitution absolutely prohibited states from entering into any treaty, alliance, or confederation; or granting letters of marque and reprisal.44 The Constitution also conditionally prohibited states from taking certain actions without the consent of Congress. The states could not keep troops, or ships of war, in time of peace; enter into any agreement or compact with another state, or with a foreign power; or engage in war, unless actually invaded, or in such imminent danger as would not admit of delay.45 In other cases, the Constitution’s grant of specific powers to the federal legislative, executive, and judicial branches ousted state authority by necessary implication. All of these constitutional restrictions on the states were designed to ensure that the Constitution’s allocation of specific war and foreign relations powers to the political branches of the federal government would be effective. In specifying various powers and limitations in the Constitution, the founders did not treat the law of nations as a monolithic body of law. Instead, they designed the Constitution to interact with each traditional

44. See id. art. I, § 10. 45. Id.

18

18 T he Tr aditional L aw of Nations & the Constitution

branch of the law of nations in distinct and specific ways. Recognizing these interactions is crucial to understanding the different roles that the distinct branches of the law of nations have played in U.S. courts since the founding. It is also crucial to evaluating when U.S.  courts should apply modern rules of customary international law unknown to the founders—​a topic that Chapters 8, 9, and 10 consider at length.

  19

2

The Law Merchant and the Constitution

The founders drafted the Constitution to interact in distinct ways with each of the three main branches of the law of nations—​the law merchant, the law of state-​state relations, and the law maritime. This chapter describes how the founders designed the Constitution to interact with the law merchant, and the role that the law merchant played in federal courts for much of U.S. history. The law merchant interacted differently with the Constitution than did other branches of the law of nations. Unlike the law of state-​state relations and the traditional law maritime, the law merchant applied to matters within the regulatory authority of the states. Article III of the Constitution extended federal judicial power to certain cases likely to be governed by the law merchant—​most notably diversity of citizenship cases—​so that litigants could seek the fair and unbiased application of such law in federal court. Eventually, states exercised their regulatory authority to abandon the general law merchant in favor of local state law. Once it became clear that states no longer applied the general law merchant, the Supreme Court held in Erie that the Constitution required federal courts to apply local state law in lieu of general law. The states’ power to displace the law merchant differed sharply from their power to depart from other aspects of the law of nations. Most importantly, as explained in Chapters 3 and 4, the Constitution has been understood to prohibit states from disregarding the rights of foreign sovereigns under the law of state-​ state relations. By assigning certain foreign relations powers to Congress and the President, Articles I and II of the Constitution generally required federal and state courts alike to uphold the rights of recognized foreign The Law of Nations and the United States Constitution. Anthony J. Bellia Jr. and Bradford R. Clark. © Oxford University Press 2017. Published 2017 by Oxford University Press.

20

20 T he Tr aditional L aw of Nations & the Constitution

sovereigns under the law of state-​state relations. Federal courts have long followed this practice, both before and after Erie. The law merchant was a customary body of law adopted by nations to govern commercial transactions among merchants. By providing a uniform set of rules across borders, the law merchant fostered international commerce among merchants. In England, the common law adopted this branch of the law of nations, making it part of English municipal law. Following the Declaration of Independence, all of the American states adopted the common law of England as their own, and by extension incorporated the law merchant as part of their municipal law. Although state courts and juries thus applied the law merchant, they were notoriously biased against foreign (especially British) creditors during the Confederation era. In drafting the Constitution, the founders responded to state court bias by empowering Congress to create lower federal courts with jurisdiction over controversies between citizens of different states or between citizens of a state and citizens or subjects of a foreign state. Such diversity of citizenship jurisdiction, as it became known, would enable out-​of-​state merchants to obtain more neutral adjudication of their claims in a federal forum. In extending the federal judicial power to diversity cases, the Constitution did not attempt to “federalize” or “constitutionalize” the applicable law. Rather, diversity jurisdiction was designed merely to advance the even-​handed application of the law merchant, which state courts applied as part of the common law. Although the Commerce Clause gave Congress some power to alter or displace the law merchant, early Congresses did not attempt to exercise any such power because doing so would have denied the United States the economic benefits associated with fair and uniform application of the law merchant—​namely, increased interstate and international trade. Instead, the First Congress simply gave federal courts jurisdiction to hear diversity cases in which a substantial amount of money (more than $500) was at stake. Diversity jurisdiction appeared to work well in the early decades of the republic. In commercial cases involving more than $500, federal courts—​like their state counterparts—​exercised independent judgment to ascertain the content of the law merchant and apply it to the case at hand. Although Swift v. Tyson1 is the best-​known example, federal courts decided

1. 41 U.S. (16 Pet.) 1 (1842).

  21



The Law Merchant and the Constitution

21

innumerable cases of this kind. Such decisions raised no serious constitutional concerns in the early decades because federal courts applied the law merchant in the same way that a state court would—​by examining sources from multiple jurisdictions to ascertain the applicable rule. Eventually, however, this practice morphed into something different—​namely, the “Swift doctrine”—​under which federal courts applied so-​called general law to an expanding range of matters historically governed by local state law. In Erie Railroad Co. v. Tompkins,2 the Supreme Court held that the federal courts’ failure to apply state law in such cases amounted to an unconstitutional usurpation of state authority. Although Erie forbade federal courts from applying general law to disputes subject to local state law, Erie did not prohibit them from applying general law in all cases. Erie’s constitutional rationale applied only to matters that the Constitution left to the exclusive or concurrent authority of the states. Its rationale did not apply to matters that the Constitution placed within the exclusive authority of the federal government—​such as recognition of foreign nations, the conduct of diplomatic relations with them, and the resolution of important questions of war and peace. In cases involving such matters, Erie left federal courts free to apply general law as needed to uphold the Constitution’s allocation of powers. Indeed, as the next two chapters explain, certain constitutional provisions sometimes require federal and state courts to apply rules derived from general law—​in particular, to uphold the rights of foreign sovereigns under the law of state-​state relations. The important point is that the Constitution was designed to interact with each branch of the law of nations in distinct ways. In the case of the law merchant, as this chapter explains, the Constitution merely empowered federal courts to serve as an alternative forum for its neutral application in cases in which state courts would apply the same body of law.

I The law merchant was a time-​honored body of law jointly administered by many nations to govern commercial transactions, including transactions among merchants from different nations. Scholars still debate the precise origins of the medieval law merchant, and its subsequent emergence as a

2. 304 U.S. 64 (1938).

22

22 T he Tr aditional L aw of Nations & the Constitution

shared body of general law.3 By the time of the founding, however, judges and public officials in England and the United States described the law merchant as a body of rules that the common law incorporated to govern commercial transactions between merchants from different states or nations. For the law merchant to perform its intended functions—​namely, providing uniform rules for merchants and promoting commerce—​nations had to adhere to a common body of rules and customs. Accordingly, judges and public officials understood the law merchant to be a shared body of rules that nations adopted and administered to govern certain commercial transactions and thereby foster interstate and international commerce. Each nation, however, ascertained the content of the law merchant for itself, and allowed any local customs or usages that local circumstances required. In the eighteenth century, Blackstone described the law merchant as “a particular system of customs” that was “ingrafted into” the common law “for the benefit of trade”4 and “which all nations agree in and take notice of.”5 Such law derived from the commercial customs and practices of merchants, and all “civilized” nations applied it to resolve disputes between merchants from different nations.6 The law merchant facilitated trade and commerce among nations by providing common rules to govern transactions among their merchants. English judges applied the law merchant in commercial disputes to the extent that the common law and acts of Parliament adopted it as part of the municipal law of England.7 In the late seventeenth century, English judges began describing the law merchant as part of the common law,8 and Blackstone wrote in the late eighteenth century that the law merchant “is held to be part of the law of England, which decides the causes of merchants by the general rules which obtain in all commercial countries.”9 3. See, e.g., J.H. Baker, The Law Merchant and the Common Law before 1700, 38 Cambridge L.J. 295 (1979); Emily Kadens, The Myth of the Customary Law Merchant, 90 Tex. L. Rev. 1153 (2012). 4. 1 William Blackstone, Commentaries *75. 5. Id. at *273. 6. Id. at *75. 7. See Philip Hamburger, Law and Judicial Duty 62, 349–​50 & n.43 (2008). 8. See Anthony J. Bellia Jr. & Bradford R. Clark, The Federal Common Law of Nations, 109 Colum. L. Rev. 1, 21 (2009) [hereinafter Bellia & Clark, Federal Common Law of Nations]. 9. Blackstone, supra note 4, at *273.

  23



The Law Merchant and the Constitution

23

The law merchant governed such matters as bills of exchange, endorsed notes, and other forms of commercial paper. For example, the law merchant addressed the notice due to an endorser of commercial paper when the maker failed to pay, as well as the rights of bona fide holders of commercial instruments. The perceived benefit of the law merchant was that it enabled merchants from different nations to engage in trade with each other, secure in the knowledge that a familiar set of uniform rules would govern their transactions. Because the law merchant was inherently transnational in scope, English courts ascertained it by reference to the shared commercial practices among nations.10 As part of the law of England, the law merchant interacted with other parts of English law, including acts of Parliament and local commercial usages. In accordance with prevailing notions of parliamentary sovereignty, an act of Parliament could override the general law merchant, just as it could override other parts of the common law. English courts also applied unwritten local usages that deviated from the general rules of the law merchant to account for local needs and circumstances.11 Nations understood the rules of the law merchant to be subject to such local deviations. Mercantile practices varied to some extent among nations and also within different parts of a nation. Nonetheless, the broad outlines of the general law merchant remained fairly constant within England and across nations, and thus served to encourage international commerce overall. Courts applied the law merchant through local forms of proceeding. When a commercial dispute subject to the law merchant arose, the law merchant did not provide a party to the dispute with a cause of action. The availability of a cause of action was strictly a matter of local law. Each sovereign determined for itself—​as a matter of local law—​the kind of injuries for which its courts would provide remedies. Blackstone began his chapter on “the Cognizance of Private Wrongs” in English courts by explaining that local English law defined the causes of action that any court of England could hear. “Every nation must and will abide by its own municipal laws” regarding the jurisdiction of its courts and what causes of action will be permitted, “which various accidents conspire to render different in almost every country in Europe.”12 When local law provided a cause of

10. Id. 11. Bellia & Clark, Federal Common Law of Nations, supra note 8, at 14, 20–​22. 12. 3 Blackstone, supra note 4, at *86–​87.

24

24 T he Tr aditional L aw of Nations & the Constitution

action,13 general commercial law could supply a rule of decision for resolving the case. After the American states achieved their independence from Great Britain, they each adopted or “received” the common law of England—​and by extension the law merchant as part of such law.14 Because states adopted the common law as state law, state courts applied the law merchant much as English courts applied it. That is, they used their own local causes of action to apply the general law merchant in appropriate cases. For decades after ratification, state courts continued to understand the law merchant as a transnational or general, rather than local, body of customary law applied by municipal courts employing local forms of action. As a New York decision explained in 1821,15 “[t]‌he Law Merchant relative to bills of exchange and endorsed notes, and commercial paper generally, is not the law of this state only, but of all the states of the Union, and of all the commercial nations of Europe.”16 On this understanding, state courts adjudicating debt or assumpsit actions—​like their English counterparts—​considered precedents from multiple jurisdictions, but ultimately exercised independent judgment to determine the content of general commercial law. In most cases, state courts applied general commercial law rules that were recognized across jurisdictions. It was inevitable, however, that courts exercising independent judgment on questions of general law would reach differing conclusions in some instances. State courts consulted treatises, English cases, other state court cases, and even federal court cases in ascertaining the rules of general commercial law. Like all courts applying the law merchant, state courts did not consider any of these sources to be conclusive or authoritative. Rather, they considered these sources to be evidence of the content

13. In the late eighteenth century, lawyers and judges trained in the English common law tradition understood the availability of a cause of action to be determined by whether local law provided a form of proceeding capable of redressing the harm in question. See Anthony J. Bellia Jr. & Bradford R. Clark, The Original Source of the Cause of Action in Federal Courts: The Example of the Alien Tort Statute, 101 Va. L. Rev. 609, 631–​37 (2015) [hereinafter Bellia & Clark, Original Source of the Cause of Action]; Anthony J. Bellia Jr., Article III and the Cause of Action, 89 Iowa L. Rev. 777, 784–​89 (2004). A cause of action existed at law, then, when a form of action provided a remedy for the kind of injury that the plaintiff had suffered. 14. See Ford W. Hall, The Common Law: An Account of Its Reception in the United States, 4 Vand. L. Rev. 791 (1951). 15. Woodworth v. Bank of Am., 19 Johns. 391 (N.Y. Sup. Ct. 1821). 16. Id. at 416 (emphasis omitted).

  25



The Law Merchant and the Constitution

25

of a multi-​jurisdictional, customary body of commercial law. State courts also understood that local usages and positive enactments could alter the law merchant as applied in a particular location. Like English courts, state courts applied local usages and positive enactments that deviated from transnational mercantile practices.17 Generally, however, states adhered in principle to the shared transnational rules of the law merchant in commercial disputes between merchants because it was in their shared interest to do so.

II Although states adopted the law merchant as part of the common law, state courts demonstrated notorious bias in applying such law against out-​of-​ state and foreign merchants during the years between the Declaration of Independence in 1776 and the Federal Convention in 1787.18 Members of the founding generation saw such bias as a threat to both interstate and international commerce (as well as friendly relations with other nations). Accordingly, they regarded fair judicial application of the law merchant as essential to promoting commerce among the states and with other nations. The framers of the Constitution “anticipated manufacture and trade within the United States on an unknown but vast scale. One of the principal objects of the Convention was to open a path for that expansion.”19 In Article III, the Constitution authorized federal court jurisdiction over “Controversies … between Citizens of different States” and between state citizens and foreign citizens or subjects.20 In the 1780s, controversies with these party alignments were most likely to involve commercial transactions between merchants who travelled and traded across borders. Diversity jurisdiction provided a federal forum for the impartial adjudication of such controversies and the unbiased administration of the law merchant. James Madison argued strongly in favor of diversity jurisdiction

17. Bellia & Clark, Federal Common Law of Nations, supra note 8, at 21–​22; Anthony J. Bellia Jr. & Bradford R. Clark, General Law in Federal Court, 54 Wm. & Mary L. Rev. 655, 683–​85 (2013) [hereinafter Bellia & Clark, General law in Federal Court]. 18.  See Bradford R. Clark, Federal Common Law:  A  Structural Reinterpretation, 144 U. Pa. L. Rev. 1245, 1348–​49 (1996). 19. John P. Frank, Historical Bases of the Federal Judicial System, 13 L. & Contemp. Probs. 3, 27 (1948). 20. U.S. Const. art. III, § 2 cl. 1.

26

26 T he Tr aditional L aw of Nations & the Constitution

at the Virginia ratifying convention on the ground that “foreigners cannot get justice done them in [state] courts, and this has prevented many wealthy gentlemen from trading or residing among us.”21 On this view, diversity jurisdiction would enable foreign merchants to avoid state court bias and proceed directly to more neutral federal courts in cases governed by the law merchant. Following the ratification of the Constitution in 1789, the First Congress implemented diversity jurisdiction by creating a federal court system for the United States and vesting federal courts with diversity jurisdiction. The First Congress enacted both choice of forum and choice of law provisions to advance neutral and uniform application of the law merchant in the United States. Regarding forum, Congress gave merchants a choice to pursue significant claims against diverse merchants in federal rather than state court. Specifically, Congress gave the newly created federal circuit courts original jurisdiction, concurrent with state courts, to hear actions between citizens of different states or between a state citizen and an alien where the matter in controversy exceeded $500.22 The amount-​in-​controversy requirement reflected a compromise to keep out-​of-​state and foreign litigants with smaller claims in state court. As a result, in the early years of the republic, “the principal economic groups involved in [ federal court] litigation, quantitatively at least, were the shipping industry, the holders of bills and notes, and those who dealt in land.”23 Moreover, regarding choice of law, Congress enacted provisions instructing federal courts to apply the law merchant in cases in which state courts would apply it. First, in the Process Acts of 1789 and 1792, Congress adopted state causes of action as the applicable causes of action in federal court. Cases involving the law merchant were generally actions at law. Plaintiffs commenced such actions in federal court by seeking an available state law writ associated with a particular form of proceeding. Plaintiffs typically brought actions governed by the law merchant as common law actions of assumpsit or debt. The Process Acts directed federal courts to use the same forms of proceeding as the courts of the state in

21. 3 The Debates in the Several State Conventions on the Adoption of the Federal Constitution 583 (Jonathan Elliot ed., 2d ed. 1901). 22. Judiciary Act of 1789, § 11, 1 Stat. 73, 78. 23. Frank, supra note 19, at 17.

  27



The Law Merchant and the Constitution

27

which they sat, thereby adopting state forms of action as the actions available in federal court.24 In addition to adopting state causes of action, the First Congress specified in Section 34 of the Judiciary Act of 1789 that federal courts should apply the laws of the several states as rules of decision. Section 34 provided that “the laws of the several states except where the constitution, treaties or statutes of the United States shall otherwise require or provide, shall be regarded as rules of decision in trials at common law in the courts of the United States in cases where they apply.”25 Although the meaning of this provision has been subject to dispute, Swift itself recognized that “laws of the several States” was meant to include both written (statutory) and unwritten (customary) local state laws.26 In accord with this provision, federal courts adjudicating diversity cases using state forms of proceeding applied not only general commercial law (just as state courts applied it under state law), but also state statutes and local state customs when they departed from general law. 27 The key distinction under Section 34 was not between written and unwritten law, but between general and local law. When early federal courts applied general commercial law, they had no real need to address explicitly whether they were applying such law as state law (incorporated as part of state common law) or as some other form of law. Because state common law—​like English common law—​incorporated general commercial law, federal courts appropriately could apply such law as a rule of decision in mercantile disputes.28 But if a state chose to displace the general 24. Act of Sept. 28, 1789, ch. 21, § 2, 1 Stat. 93, 93 (repealed 1792); Act of May 8, 1792, ch. 36, § 2, 1 Stat. 275, 276 (repealed 1872). The Process Act of 1792 also gave federal courts residual authority to make such alterations and additions to forms of proceeding as they deemed expedient. 25. Judiciary Act of 1789 § 34. 26.  See Caleb Nelson, A Critical Guide to Erie Railroad Co. v.  Tompkins, 54 Wm. & Mary L. Rev. 921, 950–​59 (2013). 27.  It was not always easy to distinguish “rules of decision” from “forms of proceeding.” In concept, the forms of proceeding provided the means for a plaintiff to pursue a remedy for a particular kind of rights violation, whereas rules of decision defined the scope of the underlying right asserted—​a line not always easy to draw. In practice, federal courts did not have to deal with this distinction in most cases because they looked to state law definitions of both rights and remedies under the Process Acts and the Rule of Decision Act, absent a contrary act of Congress. See Bellia & Clark, Original Source of the Cause of Action, supra note 13, at 674 n.282. 28.  The First Congress also authorized federal courts to apply the law merchant as rules of decision in cases in equity. The Process Act of 1789 initially provided that federal courts

28

28 T he Tr aditional L aw of Nations & the Constitution

commercial law with a local statutory or customary rule of its own, then Section 34 required federal courts to apply local state law. Over time, however, the Supreme Court moved away from these traditional principles as it developed and expanded what became known as the “Swift doctrine.”

III In the decades following ratification, the Constitution’s grant of diversity jurisdiction appears to have performed its intended function. Out-​of-​state and foreign merchants invoked diversity jurisdiction in many cases, and early federal courts routinely applied the law merchant in such cases in the absence of local state law to the contrary.29 Federal judges understood their role in applying the law merchant in the same way that English and state judges understood their own role. They were to use their independent judgment to ascertain and apply a body of law that many sovereigns had developed and applied over time. They were not to treat the law merchant as the command of any particular sovereign. Accordingly, both federal and state courts deciding commercial cases “considered themselves to be deciding questions under a general law merchant that was neither distinctively state nor federal.”30 Over time, federal and state courts developed their own bodies of reported case law on various aspects of the law merchant. Such case law merely reported the decisions of particular jurisdictions; it did not purport to settle the meaning of the law merchant for other states or nations, and thus was not binding on the courts of other jurisdictions. Decisions of this kind simply provided evidence for courts of different jurisdictions to consider in seeking to ascertain the content of the law merchant. For example, federal courts applying the law merchant canvassed not only English precedents, but a growing body of state and federal decisions as well. Because

should apply civil law in cases of equity. The Process Act of 1792 subsequently provided that “the forms and modes of proceeding” in cases “of equity” were to be “according to the principles, rules and usages which belong to courts of equity … as contradistinguished from courts of common law,” subject to residual authority to make expedient additions and alternations to such practices. Act of May 8, 1792 § 2. As in actions at law, in cases in equity the law merchant could provide a rule of decision governing the case. 29. Bellia & Clark, General Law in Federal Court, supra note 17, at 679–​87. 30.  William A. Fletcher, The General Common Law and Section 34 of the Judiciary Act of 1789: The Example of Marine Insurance, 97 Harv. L. Rev. 1513, 1554 (1984); see, e.g., French’s Executrix v. Bank of Columbia, 8 U.S. (4 Cranch) 141 (1807).

  29



The Law Merchant and the Constitution

29

no one state, federal, or foreign court system could prescribe the content of general commercial law for the whole world, judges used their own independent judgment to ascertain the content of such law by examining judicial decisions across jurisdictions, and the reasons underlying them.31 By contrast, federal courts deferred to state courts on questions of local (as opposed to general) law. For example, in the 1826 case of Halsey v. Fairbanks,32 Justice Joseph Story—​sitting on the federal circuit court in Massachusetts—​affirmed that federal courts must apply local state law and defer to state court understandings of such law. Halsey implicated a local doctrine derived from the 1809 Massachusetts case Widgery v.  Haskell.33 According to Justice Story, Widgery established, as “a rule of local law,” “that in Massachusetts an assignment to a trustee, executed by a debtor bonâ fide for the benefit of creditors, is not valid, unless the creditors are parties to, or assent to the deed.”34 Although Story stated that he was “unconvinced” of the soundness of the rule, he made clear that, insofar as the case stood “upon local law, my duty is to follow it, and it will be performed without hesitation.”35 This background provides crucial context for understanding the Supreme Court’s approach to general law in Swift v. Tyson. Today, scholars and judges associate Swift with the infamous doctrine that bears its name. Under the “Swift doctrine,” federal courts exercised independent judgment regarding the content of a wide range of unwritten law going well beyond the law merchant. At the zenith of the Swift doctrine, federal courts invoked it to appeal to “transcendental” or “ambient” legal principles—​a kind of “brooding omnipresence in the sky”36—​and to ignore local state law in a broad range of cases. It is important, however, to distinguish the original Swift decision from the subsequent Swift doctrine. At the time 31. Bellia & Clark, General Law in Federal Court, supra note 17, at 677–​87. 32. 11 F. Cas. 295 (C.C.D. Mass. 1826) (No. 5,964). 33. 5 Mass. (1 Tyng) 144 (1809). 34. Halsey, 11 F. Cas. at 299-​300. 35. Id. at 300. 36. See, e.g., Sosa v. Alvarez-​Machain, 542 U.S. 692, 714 (2004) (describing “ambient law of the era” at the founding); Erie R.R. Co. v. Tompkins, 304 U.S. 64, 79 (1938) (quoting Black & White Taxicab & Transfer Co. v. Brown & Yellow Taxicab & Transfer Co., 276 U.S. 518, 533 (1928) (Holmes, J. dissenting) (rejecting the “assumption that there is ‘a transcendental body of law outside of any particular State but obligatory within it unless and until changed by statute’ ”); S. Pac. Co. v. Jensen, 244 U.S. 205, 222 (1917) (Holmes, J., dissenting) (“The common law is not a brooding omnipresence in the sky … .”).

30

30 T he Tr aditional L aw of Nations & the Constitution

it was decided, Swift was an unremarkable federal judicial application of general commercial law in accord with the practice of both state and federal courts. The Swift Court applied general commercial law because New York state courts would have done the same thing at the time. The Swift Court acknowledged that it would have been bound to apply a local state statute or local state usage had New York established one on the question. Because the state had not done so, the Swift Court was free to apply general law and use independent judgment to determine its content. Swift involved a dispute over a bill of exchange governed by the law merchant. Tyson bought land from two speculators, Norton and Keith. As payment, Tyson gave them a bill of exchange promising to pay the agreed amount. Norton and Keith in turn gave Tyson’s bill to Swift to satisfy a pre-​existing debt they owed to Swift. When Swift sought payment on the instrument, Tyson refused to pay, contending that Norton and Keith had fraudulently induced him to give them the bill of exchange for land that Norton and Keith did not own.37 Swift then brought an action of assumpsit against Tyson in federal court seeking payment on the note. The case turned on whether Swift qualified as a “bona fide holder” of the instrument. Swift qualified as a bona fide holder only if he gave a valuable “consideration” for the instrument. If Swift gave valuable consideration and was a bona fide holder, then Tyson had no defense against him and was bound to honor the note. The case came down to whether the release of pre-​existing debt, such as the one that Norton and Keith owed to Swift, qualified as valid consideration for the note. As Justice Story framed the issue for the Court, “the only real question in the cause is, whether, under the circumstances of the present case, such a pre-​existing debt constitutes a valuable consideration, in the sense of the general rule applicable to negotiable instruments.”38 Before resolving this question, the Court had to ascertain the applicable source of law. Tyson argued that, under Section 34 of the Judiciary Act, the Court should treat the transaction “as a New York contract, and therefore to be governed by the laws of New York, as expounded by its Courts, as well upon general principles.”39 Tyson “further contended, that by the law of New  York, as thus expounded by its Courts, a pre-​existing debt does

37. Swift v. Tyson, 41 U.S. (16 Pet.) 1, 15 (1842). 38. Id. at 16. 39. Id.

  31



The Law Merchant and the Constitution

31

not constitute, in the sense of the general rule, a valuable consideration applicable to negotiable instruments.”40 Justice Story assumed (without deciding) that New York courts would find the consideration inadequate under the law merchant, but he concluded that the Supreme Court was not bound to follow the New York courts’ understanding “if it differs from the principles established in the general commercial law.”41 The Swift Court emphasized that the question to be decided was one of general law rather than local law, and that the New York courts themselves understood the question to be one of general rather than local law. As the Court put it, “[i]‌t is observable that the Courts of New York do not found their decisions upon this point, upon any local statute, or positive, fixed, or ancient local usage: but they deduce the doctrine from the general principles of commercial law.”42 Because New York courts considered the question to be one of general law, federal courts (like New  York courts) were free to use independent judgment to determine the content of such law for themselves. For much the same reason, the Court rejected the contention that Section 34 of the Judiciary Act required federal courts to follow state court decisions on questions of general commercial law. Section 34, as explained, provided “that the laws of the several states, except where the constitution, treaties or statutes of the United States shall otherwise require or provide, shall be regarded as rules of decision in trials at common law in the courts of the United States in cases where they apply.” The Court did not—​as is sometimes said—​interpret Section 34’s reference to “the laws of the several states” to include only state statutes. Rather, the Court read the phrase to include both state statutes and established local customs and usages of a fixed and permanent nature. At the same time, the Court denied that Section 34 encompassed the decisions of state courts on questions of general law. Such decisions, the Court remarked, “are, at most, only evidence of what the laws are; and are not of themselves laws.”43 According to the Court, “[t]‌he laws of a state are more usually understood to mean the rules and enactments promulgated by the legislative authority thereof, or long

40. Id. 41. Id. at 18. 42. Id. 43. Id. at 18.

32

32 T he Tr aditional L aw of Nations & the Constitution

established local customs having the force of laws.”44 Because New York had no such local enactment or custom on the question before the Court—​ but rather considered the question to be one of general law—​the Swift Court proceeded to ascertain and apply general commercial law. Accordingly, in interpreting Section 34, the Court did not draw a distinction between written and unwritten state law (as modern commentators often assert). Rather, the Court drew a distinction between general and local law. “[T]‌he true interpretation of the thirty-​fourth section,” the Court explained, “limited its application to state laws strictly local, that is to say, to the positive statutes of the state, and the construction thereof adopted by the local tribunals, and to rights and titles to things having a permanent locality, such as the rights and titles to real estate, and other matters immovable and intra-​territorial in their nature and character.”45 In other words, the Court read Section 34 to require the application of local statutes as well as unwritten “local customs having the force of laws” and “local usages of a fixed and permanent operation.” Because New York had no local statute, custom, or usage on point, the Court concluded that Section 34 posed no barrier to the application of general law. In resolving the question of general law before it, the Swift Court concluded that federal courts—​like state courts—​were free to use their independent judgment to ascertain the content of the applicable law. With respect to “questions of general commercial law,” Justice Story explained, “the state tribunals are called upon to perform the like functions as ourselves, that is, to ascertain upon general reasoning and legal analogies, what is the true exposition of the contract or instrument, or what is the just rule furnished by the principles of commercial law to govern the case.”46 In performing this function, the Court looked to both reason and authority.47 As a matter of reason, “[i]‌t is for the benefit and convenience of the commercial world to give as wide an extent as practicable to the credit and circulation of negotiable paper, that it may pass not only as security for new purchases and advances, made upon the transfer thereof, but also in payment of and as security for pre-​existing debts.”48 In the Court’s view, the more restrictive understanding of general commercial law allegedly embraced by New York 44. Id. 45. Id. (emphasis added). 46. Id. at 19. 47. Id. at 20. 48. Id.

  33



The Law Merchant and the Constitution

33

courts “would strike a fatal blow at all discounts of negotiable securities for pre-​existing debts.”49 As a matter of judicial authority, the Court found that the clear weight of decisions favored treating a pre-​existing debt as a valuable consideration. The Court canvassed a wide range of sources, including its own precedents, English decisions, treatises, and the decisions of American state courts to determine the content of general law.50 On the basis of this review, the Court had “no hesitation” in concluding “that a pre-​existing debt does constitute a valuable consideration in the sense of the general rule already stated, as applicable to negotiable instruments.”51 Taken in its original context, Swift v. Tyson should not be regarded as a path-​breaking or controversial decision. Rather, it followed a long line of cases applying general commercial law in federal court absent local state law to the contrary, a practice consistent with state courts’ application of the general law merchant at the time. Only later—​with the emergence of the more expansive Swift doctrine—​would courts (mis)cite Swift for the broader proposition that federal courts could exercise independent judgment over other kinds of unwritten law, regardless of whether states considered them to be general law or local law. Read in context, the Supreme Court’s approach to the law merchant in Swift was consistent with the Constitution and the founders’ expectations regarding application of the law merchant in federal court. One of the primary reasons that the Constitution included diversity jurisdiction was to enable federal courts (as an alternative to state courts) to ascertain and apply the law merchant in controversies involving out-​of-​state or foreign litigants. Adjudication in federal court ensured that such litigants could avoid real or perceived bias in state court. The Constitution did not incorporate or alter the law merchant, but merely provided an alternative forum for its neutral application. Litigants used federal court jurisdiction to perform this function for many decades, and the Swift decision was merely one example of this practice.

IV In the decades following Swift, federal courts significantly (and controversially) expanded the so-​called Swift doctrine to embrace matters 49. Id. 50. Id. at 20–​22. 51. Id. at 19.

34

34 T he Tr aditional L aw of Nations & the Constitution

traditionally governed by local law. A  significant step in this expansion was the Supreme Court’s 1862 decision in Chicago v. Robbins52 disregarding state tort law in favor of so-​called “general law” ascertained by federal courts.53 The case involved tort liability for negligence—​a matter traditionally governed by local rather than general law. The Robbins Court declared that “where private rights are to be determined by the application of common law rules alone, this Court, although entertaining for State tribunals the highest respect, does not feel bound by their decisions.”54 Three decades later, in Baltimore & Ohio Railroad Co. v. Baugh,55 the Court determined that the question whether a railroad was responsible for the negligence of one employee against another was “not a question of local law, to be settled by an examination merely of the decisions of the Supreme Court of Ohio, … but rather one of general law, to be determined by” federal courts in the exercise of their independent judgment.56 Whereas Swift had applied general law to a matter that state courts understood to be governed by general law, Robbins and Baugh stretched—​indeed, refashioned—​the doctrine to apply “general law” to matters that states always understood to be governed by local law. By the time the Supreme Court decided Erie in 1938, “the so-​called ‘general law’ as to which federal courts exercised an independent judgment” had been given “broad province” over numerous matters traditionally governed by local law.57 The Erie Court noted that federal courts had come to apply general law to purely intrastate contracts, questions of tort liability (even concerning real property rights), and rights to recover certain kinds of damages.58 Federal courts went so far as to disregard “state decisions construing local deeds, mineral conveyances, and even devises of real estate.”59 States always considered these matters to be local and thus subject to local state law.

52. 67 U.S. (2 Black) 418 (1862) 53. Id. at 428–​29. 54. Id. 55. Balt. & Ohio R.R. Co. v. Baugh, 149 U.S. 368 (1893). 56. Id. at 370. 57. 304 U.S. 64, 75 (1938). 58. Id. at 75–​76. 59. Id. at 76.

  35



The Law Merchant and the Constitution

35

At the same time that federal courts were expanding the range of matters to which they applied general law, states were contracting the scope of matters to which they applied general law. By 1938, most states no longer considered many aspects of the law merchant to be general law. Over time, state courts and legislatures had increasingly localized general commercial law. By the late eighteenth century, distinctive state commercial statutes had grown “and increased like weeds” in all the states, and “every state … had one or more statutes attempting to regulate in whole, or in part, the law of commercial paper.”60 State commercial statutes generated many judicial disputes and widespread lack of uniformity in commercial law.61 Such non-​uniformity among the states prompted the development of uniform commercial statutes, including the Uniform Negotiable Instruments Act (which codified many rules derived from the law merchant).62 These statutes were designed to perform the function historically performed by the law merchant—​to encourage trade by providing uniform rules to govern commercial transactions. By adopting the Negotiable Instruments Act as state law, the states transformed many rules traditionally associated with general commercial law into local (albeit uniform) statutory law.63 During this period, states increasingly came to regard residual rules of the law merchant as state-​specific local law, not general law. They began to describe the law merchant as the local law of particular sovereigns, not as transnational law over which they exercised independent judgment. In practice, state courts no longer exercised independent judgment to ascertain the content of multi-​jurisdictional customary law in commercial cases, but rather followed the judicial decisions of the state whose substantive law governed the dispute. State courts eventually characterized even the question involved in Swift v. Tyson—​whether a negotiable instrument 60.  Frederick K. Beutel, The Development of State Statutes on Negotiable Paper Prior to the Negotiable Instruments Law, 40 Colum. L. Rev. 836, 849 (1940). 61. Lawrence M. Friedman, A History of American Law 355, 471 (1973); Charles A. Bane, From Holt and Mansfield to Story to Llewellyn and Mentschikoff: The Progressive Development of Commercial Law, 37 U. Miami L. Rev. 351, 367 (1983). 62.  1892–​1901 National Conference of Commissioners on Uniform State Laws, Sixth Annual Conference of Commissioners for the Promotion of Uniformity of Legislation in the United States, 8 (1896). In addition to this act, states widely adopted uniform acts on Sales (1906), Warehouse Receipts (1906), Bills of Lading (1909), and Stock Transfers (1909). Bane, supra note 61, at 369. See also Friedman, supra note 61, at 471. 63.  State legislation did not entirely displace general commercial law, however. The Negotiable Instruments Act, for instance, stated that “[i]‌n any case not provided for in this act the rules of the law merchant shall govern.” Uniform Negotiable Instruments Act § 196.

36

36 T he Tr aditional L aw of Nations & the Constitution

invalid in the hands of the original holder was enforceable by a bona fide holder in due course—​as a question of local rather than general law.64 In short, by the early twentieth century, states no longer considered the law merchant to be general law, but rather regarded commercial law as local state law. These two developments—​the federal courts’ expansion of the Swift doctrine to historically local matters and the states’ localization of the general law merchant—​left federal courts in a precarious constitutional position by the early twentieth century. As originally envisioned, diversity jurisdiction merely established federal courts as an alternative forum to state courts for the resolution of disputes traditionally governed by the law merchant. The underlying assumption was that both sets of courts would apply the same body of general law in commercial cases, but that the availability of a federal forum would alleviate state court bias against out-​of-​state merchants in the application of such law. This worked well so long as the states continued to regard commercial law as general law. By 1938, however, states no longer recognized the law merchant as general law, and federal courts nonetheless disregarded local state law on both commercial matters and even non-​commercial matters traditionally governed by local law. These developments eroded the legitimacy of the Swift doctrine and led the Supreme Court to abandon the doctrine as unconstitutional in Erie Railroad Co. v. Tompkins. The underlying issue in Erie was one of local tort liability within the traditional police powers of the states. As Tompkins, a citizen of Pennsylvania, walked along railroad tracks, an object protruding from a passing train struck and injured him. Tompkins sued the railroad, a New York corporation, in federal court on the basis of diversity of citizenship.65 Whether Tompkins could recover turned on what duty of care the railroad owed to pedestrians walking along the right of way. The railroad argued that Tompkins was a trespasser under Pennsylvania law and “that the railroad is not liable for injuries to undiscovered trespassers resulting from its negligence, unless it be wanton or willful.”66 Tompkins countered that “the railroad’s duty and liability is to be determined in federal courts as a matter

64. Comment, What Law Governs the Question of Purchase for Value of Negotiable Instruments, 27 Yale L.J. 246, 246 (1917). 65. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 69 (1938). 66. Id. at 70.

  37



The Law Merchant and the Constitution

37

of general law.”67 The court of appeals agreed with Tompkins,68 but the Supreme Court reversed and required federal courts to apply local state tort law. Erie is a landmark constitutional decision by the Supreme Court. It disavowed a doctrine that federal courts had long applied, and it rested its ruling on the Constitution. The Court, however, did not spell out the grounds for its decision in great detail.69 Commentators have long debated the constitutional basis for the Court’s holding, and there remains no clear consensus.70 But what little the Court did say about its constitutional rationale is crucial to assessing what role, if any, other forms of general law may continue to play in federal court adjudication. The Court began its constitutional analysis with the following sentence: “Except in matters governed by the Federal Constitution or by Acts of Congress, the law to be applied in any case is the law of the State.”71 This sentence refers to two sources of federal law that the Supremacy Clause designates as the supreme law of the land—​the Constitution and federal statutes.72 Because the Clause recognizes only the Constitution, laws, and treaties of the United States as the supreme law of the land, the negative implication of the Clause is that state law will govern unless it contradicts such law.73 The Court also underscored another important implication of the Supremacy Clause—​namely, that federal courts lack constitutional authority to displace applicable state law on their own initiative. According to the Court, “no clause in the Constitution purports to confer … power 67. Id. 68. See Tompkins v. Erie R.R. Co., 90 F.2d 603, 604 (2d Cir. 1937). 69. See John Hart Ely, The Irrepressible Myth of Erie, 87 Harv. L. Rev. 693, 702 (1974) (stating that the Erie opinion “has been faulted for failing to indicate precisely what constitutional provision Swift v.  Tyson’s interpretation of the Rules of Decision Act violated”) (footnote omitted). 70. See Erwin Chemerinsky, Federal Jurisdiction § 5.3 (2d ed. 1994) (stating that “[t]‌he constitutional basis for the Erie decision has confounded scholars”); Jack Goldsmith & Steven Walt, Erie and the Irrelevance of Legal Positivism, 84 Va. L. Rev. 673, 676 (1998) (noting that Erie’s “holding has been subject to disagreement and controversy over the years”); see also Michael Steven Green, Erie’s Suppressed Premise, 95 Minn. L. Rev. 1111 (2011); Craig Green, Repressing Erie’s Myth, 96 Cal. L. Rev. 595 (2008). 71. Erie, 304 U.S. at 78. 72. Although the Court left out any reference to treaties, there is no reason to think that the Court would not recognize them as supreme under the Supremacy Clause. The omission simply may reflect the domestic nature of the underlying tort question before the Court. 73. See Bradford R. Clark, Erie’s Constitutional Source, 95 Cal. L. Rev. 1289 (2007).

38

38 T he Tr aditional L aw of Nations & the Constitution

upon the federal courts” “to declare substantive rules of common law applicable in a State whether they be local in their nature or ‘general,’ be they commercial law or a part of the law of torts.”74 Applying these constitutional principles, the Erie Court disavowed the Swift doctrine, which allowed federal courts to disregard local state law in favor of so-​called general law. The Court recognized that the “general law” applied by federal courts under the Swift doctrine had become “little less than what the judge advancing the doctrine [thought] at the time should be the general law on a particular subject.”75 Under these circumstances, the Supreme Court felt “compel[led]” by the Constitution to abandon the Swift doctrine and hold that—​absent a contrary provision of the “Federal Constitution” or an “Act of Congress”—​federal courts must apply state law “in any case.”76 In Erie itself, the Constitution required federal courts to apply local state tort law—​rather than general law—​to resolve Tompkins’s claim.77 Some commentators read Erie as prohibiting federal courts from ever applying unwritten general law in preference to state law.78 The problem with this reading, however, is that it assumes that the Constitution treats all forms of general law the same. As the next two chapters explain, this reading conflates the law merchant with other branches of the law of nations that—​unlike the law merchant—​implicate matters that fall within the exclusive authority of the federal government. To uphold certain exclusive federal powers under Articles I and II, federal courts have treated other aspects of the law of nations differently than they have treated the general law merchant. The Constitution did not treat government regulatory power as a monolithic whole, and different branches of the law of nations addressed matters within different realms of governmental authority.

74. Erie, 304 U.S. at 78. 75. Id. (quoting Balt. & Ohio R.R. Co. v. Baugh, 149 U.S. 368, 401 (1893) (Field, J., dissenting)). 76. See Erie, 304 U.S. at 77–​78. 77. Two decades earlier, the Supreme Court made a different choice when it held that general maritime law ordinarily preempts contrary state law. See S. Pac. Co. v. Jensen, 244 U.S. 205 (1917). As discussed in Chapter 5, the Court decided Jensen during the height of the Lochner era, and the Court’s rationale was limited to admiralty and maritime cases, many of which involve matters within the exclusive regulatory power of Congress. Although Erie did not address Jensen, the Court’s opinion made clear that “[t]‌here is no federal general common law.” 304 U.S. at 78. Accordingly, the Court’s subsequent decisions have expressly limited federal common law to “narrow areas” or enclaves, such as “admiralty cases.” Tex. Indus. v. Radcliff Materials, 451 U.S. 630, 641 (1981). 78. See Chapter 7, infra.

  39



The Law Merchant and the Constitution

39

The Constitution divides power between the federal government and the states. Some matters fall within the exclusive authority of the states; some fall within the concurrent authority of the states and the federal government; and some fall within the exclusive authority of the federal government. Swift and Erie dealt with matters subject to concurrent or exclusive state regulatory authority under the Constitution—​commercial law and tort law. Because neither the Constitution nor a federal statute addressed the duty of care owed by a railroad to a pedestrian in its right of way (and thus neither preempted state authority), Erie held that the Constitution required federal courts to apply state law to resolve the matter in dispute. As important as Erie is to the kind of “general law” it addressed (general tort law and general commercial law),79 the Court’s constitutional rationale does not apply to other forms of general law that interact with the Constitution in different ways. Under the Constitution, states have no authority over some matters traditionally governed by the general law of nations because such matters fall within the exclusive constitutional authority of the federal government. Specifically, states have no authority over the rights and obligations of the United States vis-​à-​vis foreign nations under the law of state-​state relations. These matters were central to the peace and security of the United States, and the founders purposefully designed the Constitution to interact differently with the law of state-​state relations than with the law merchant. As the next two chapters explain, the Supreme Court has held that the Constitution not only permits but sometimes requires federal courts to apply the law of state-​state relations in order to uphold the Constitution’s specific allocation of war and foreign relations powers to Congress and the President.

79. Soon after Erie, the Court held in Klaxon Co. v. Stentor Electric Manufacturing Co., 313 U.S. 487, 496–​97 (1941), that federal courts sitting in diversity had to apply state conflict of law rules. To the extent that the pre-​Erie Court treated conflict of laws as part of private international law, Klaxon treated conflict of laws the same way that Erie treated general commercial law. See Michael D. Ramsey, Customary International Law in the Supreme Court, 1901–​1945, in International Law in the U.S. Supreme Court: Continuity and Change 245–​46 (David L. Sloss, Michael D. Ramsey & William S. Dodge eds., 2011).

40

  41

3

The Law of State-​State Relations and the Constitution

The second main branch of the law of nations at the time of the founding was the law of state-​state relations. This law was arguably the most important branch of the law of nations at the time because it governed relations between sovereigns and determined questions of war and peace.1 Not surprisingly, the founders designed the Constitution to interact differently with the law of state-​state relations than with the law merchant. Whereas the Constitution simply gave federal courts jurisdiction to hear certain cases likely to be governed by the law merchant under state law, the Constitution contained several provisions that required U.S.  courts to apply the law of state-​ state relations in important ways. First, the Constitution’s exclusive allocation of the recognition power to the political branches required courts and states to uphold the traditional rights of recognized foreign nations under the law of state-​state relations. Second, the Constitution’s exclusive allocation of powers to the political branches to conduct diplomacy, issue reprisals, authorize captures, and declare and make war required courts and states to refrain from attempting to hold foreign nations accountable for their violations of the law of nations. To be sure, the political branches could exercise their constitutional powers to override the rights of foreign sovereigns under the law of nations, or to

1. This chapter includes arguments presented at greater length in prior work. See Anthony J. Bellia Jr. & Bradford R. Clark, The Law of Nations as Constitutional Law, 98 Va. L. Rev. 729 (2012) [hereinafter Bellia & Clark, Law of Nations as Constitutional Law], and The Federal Common Law of Nations, 109 Colum. L.  Rev. 1 (2009) [hereinafter Bellia & Clark, Federal Common Law of Nations]. The Law of Nations and the United States Constitution. Anthony J. Bellia Jr. and Bradford R. Clark. © Oxford University Press 2017. Published 2017 by Oxford University Press.

42

42 T he Tr aditional L aw of Nations & the Constitution

authorize U.S. courts to hold foreign nations accountable for violating the law of nations in proceedings within their jurisdiction. Absent such action by the political branches, however, courts had to follow these default rules in order to avoid usurping or contradicting the exercise of powers that the Constitution allocated exclusively to the political branches. Judicial practice under the Constitution throughout U.S. history has been consistent with these two default rules. The law of state-​state relations refers to a system of rules that nations traditionally followed in order to maintain peaceful relations with each other and to promote commerce and intercourse among their citizens or subjects. As explained in Chapter 1, the common law of England generally incorporated the law of state-​state relations, just as it generally incorporated the law merchant. The original thirteen states thus received the law of state-​state relations when they adopted the common law after declaring their independence from Great Britain. During the Confederation era, however, the states were notorious for violating the law of state-​state relations—​particularly by failing to comply with the Treaty of Peace with Great Britain and by failing to redress acts of violence against British subjects by Americans. Such violations left the United States vulnerable to retaliation and even war. Accordingly, one of the primary goals of the Federal Convention was to draft a constitution that would enable the United States to comply with its obligations under the law of state-​state relations and to enjoy its rights as an independent sovereign. The Constitution used two means to ensure that the United States could achieve these objectives. First, Articles I and II of the Constitution assigned powers closely related to the law of state-​state relations (as then understood) to the political branches of the federal government. These powers included the powers to send and receive ambassadors, make treaties, declare and wage war, issue reprisals, authorize captures, and define and punish offenses against the law of nations. The Constitution described all of these powers in terms that had meaning only in light of background understandings of the law of state-​state relations. For example, sending and receiving ambassadors and making treaties were the traditional means by which nations recognized each other as independent sovereigns entitled to exercise sovereign rights under the law of state-​state relations. Thus, the power to send and receive ambassadors and to make treaties necessarily encompassed the power to establish that the United States—​ including its courts and constituent states—​would recognize and respect other nations’ rights under the law of state-​state relations.

  43



The Law of State-State Relations and the Constitution

43

Importantly, as this chapter explains, the Constitution assigned several of these powers exclusively to the political branches of the federal government, including powers to recognize foreign nations, to make treaties, to initiate and conduct war, to issue reprisals, and to make rules governing captures. The Constitution’s allocation of these powers to the political branches required courts (and states) to uphold the traditional rights of recognized foreign nations. Because recognition signified that the United States would respect such rights, a court’s refusal to uphold them would contradict the meaning of recognition and violate the Constitution’s allocation of this power to the political branches. Similarly, the Constitution’s exclusive allocation to the political branches of the powers to seek satisfaction through diplomacy, issue reprisals, authorize captures, and declare and make war required courts (and states) to refrain from attempting to hold foreign nations accountable for their misconduct without political branch authorization to do so. In addition to vesting specific foreign relations powers in the political branches, the Constitution also ensured that the United States could comply with the law of state-​state relations and reap its benefits by giving federal courts jurisdiction to hear several categories of cases likely to involve the law of state-​state relations. Article III extended the judicial power of the United States to cases arising under treaties, cases affecting ambassadors, cases of admiralty and maritime jurisdiction, and controversies involving foreign states. Such jurisdiction gave Congress power to authorize Supreme Court review of state court decisions or to authorize lower federal courts (as opposed to state courts) to hear cases implicating the law of state-​state relations in the first instance. From their experience under the Articles of Confederation, the founders had reason to believe that federal courts would be more likely than state courts to uphold the rights of recognized foreign nations under the law of state-​state relations and to refrain from granting redress against them without clear authorization from the political branches. Judicial practice has confirmed the importance of these grants of Article III jurisdiction in maintaining the Constitution’s allocation of powers. From the founding to the present, the Supreme Court has upheld the traditional rights of foreign sovereigns derived from the law of state-​state relations without regard to state law. This practice has served to uphold the Constitution’s exclusive allocation of powers to the political branches to make war and foreign policy decisions on behalf of the United States. Moreover, the Supreme Court has refrained from unilaterally attempting

44

44 T he Tr aditional L aw of Nations & the Constitution

to redress the misconduct of other nations, including their violations of the law of nations. This practice has served to uphold the Constitution’s exclusive allocation of power to the political branches to decide whether, when, and how to pursue redress against foreign nations for their misdeeds. In the most famous decisions involving these practices, the Supreme Court respected traditional sovereign rights of foreign nations in ways that preserved the exclusive powers of the federal political branches to conduct foreign relations with another country. The Court, in several of these cases, also declined to attempt to redress other nations’ misconduct without proper authorization from the political branches to do so. This chapter explains how the Constitution’s allocation of powers to the political branches over recognition, diplomacy, reprisals, captures, and war required courts and states to uphold the rights of foreign nations under the law of state-​state relations and to refrain from attempting to hold them accountable for their violations of the law of nations (unless the political branches authorized them to do otherwise). The following chapter describes how the Supreme Court and other federal courts have, in practice, resolved disputes in accordance with this allocation of powers. From the time of the founding to the present, the Supreme Court has both upheld the traditional rights of recognized foreign sovereigns under the law of state-​state relations, and avoided pursuing redress against foreign nations for their own violations of the law of nations—​all in ways that have served to uphold the Constitution’s allocation of specific foreign relations powers to the federal political branches.

I To understand the relationship between the law of state-​state relations and the Constitution, one must appreciate the nature and significance of the law of state-​state relations as it existed in the late eighteenth century. At the time the Constitution was adopted, Emmerich de Vattel’s treatise, The Law of Nations, was the most well-​known work in England and America on the law of state-​state relations.2 In this work, Vattel described a set of 2. See Edwin D. Dickinson, The Law of Nations as Part of the National Law of the United States, 101 U. Pa. L. Rev. 26, 35 (1952) (explaining that this treatise and writings of Grotius, Pufendorf, and Burlamaqui “were an essential and significant part of the minimal equipment of any lawyer of erudition in the eighteenth century”); see also Mark Weston Janis, The American Tradition of International Law:  Great Expectations:  1789–​1914, at 57 (2004) (“Those meeting in Philadelphia to draft the document were not deficient in formal training in the

  45



The Law of State-State Relations and the Constitution

45

reciprocal rights and obligations that governed interactions among recognized sovereign states. Nations respected these rights in order to maintain peace and facilitate friendly relations with each other. The most important rights of nations under the law of state-​state relations included the rights to govern within their own territory, conduct diplomatic relations, enjoy neutral commerce and use of the seas, exercise treaty rights, and enjoy liberty peaceably. These rights were known as “perfect rights” because their violation immediately gave an offended nation just cause to vindicate them by resort to force (including war). One such right was “the right of embassy.”3 “Every sovereign state … has,” Vattel explained, “a right to send and receive publick ministers.”4 Vattel considered the rights to establish embassies and to send and receive public ministers necessary to effectuate all other rights. “[N]‌ations,” he explained, “should treat with each for the good of their affairs, for avoiding reciprocal damages, and for adjusting and terminating their differences.”5 Public ministers were “necessary instruments in affairs which sovereigns have among themselves, and to that correspondence which they have a right of carrying on.”6 Vattel described the right to send public ministers—​and the corresponding rights, privileges, and immunities of public ministers—​as inviolable because the “respect due to sovereigns

law of nations.”); Peter Onuf & Nicholas Onuf, Federal Union, Modern World: The Law of Nations in an Age of Revolutions 1776–​1814, at 11 (1993) (“Translated immediately into English, [Vattel] was unrivaled among such treatises in its influence on the American founders.”); David Gray Adler, The President’s Recognition Power, in The Constitution and the Conduct of American Foreign Policy 133, 137 (David Gray Adler & Larry N. George eds., 1996) (“During the Founding period and well beyond, Vattel was, in the United States, the unsurpassed publicist on international law.”); Douglas J. Sylvester, International Law as Sword or Shield? Early American Foreign Policy and the Law of Nations, 32 N.Y.U. J. Int’l L. & Pol. 1, 67 (1999) (explaining that in American judicial decisions, “in all, in the 1780s and 1790s, there were nine citations to Pufendorf, sixteen to Grotius, twenty-​five to Bynkershoek, and a staggering ninety-​two to Vattel”). 3. 2 Emmerich de Vattel, The Law of Nations bk. IV, § 57, at 133 (London, J. Newberry et al. 1759); see also 2 Cornelius van Bynkershoek, Quaestionum Juris Publici Libri Duo 156 (Tenney Frank trans., Clarendon Press 1930) (1737) (“Among writers on public law it is usually agreed that only a sovereign power has a right to send ambassadors.”); Hugo Grotius, The Rights of War and Peace 376–​78 (London, W. Innys, et al. 1738) (describing the right of embassy); 2 Christian Wolff, Jus Gentium Methodo Scientifica Pertractatum § 1044, at 526 (Joseph H. Drake trans., Clarendon Press 1934) (1764) (“Nations have a perfect right to send ambassadors to other nations.”). 4. Vattel, supra note 3, bk. IV, § 57, at 133. 5. Id. § 55, at 132. 6. Id. § 57, at 133.

46

46 T he Tr aditional L aw of Nations & the Constitution

should reflect on their representatives, and chiefly on their ambassadors, as representing his master’s person in the first degree.”7 In addition to the right of embassy, each nation had the right to preserve itself and to govern within its own territory, free from interference by other nations. As Vattel explained, every nation had “a right to preserve” itself—​“a right not to suffer any other to obstruct its preservation, its perfection, and happiness, that is, to preserve itself from all injuries” that other nations might attempt to inflict.8 Relatedly, nations had the exclusive right to govern within their territorial domains, for no nation “[has] the least authority to interfere in the government of another state.”9 “Of all the rights that can belong to a nation, sovereignty is, doubtless, the most precious, and that which others ought the most scrupulously to respect, if they would not do it an injury.”10 Accordingly, no “foreign power [may] take cognizance of the administration of this sovereign, to set himself up for a judge of his conduct, and to oblige him to alter it.”11 Vattel emphasized the connection between sovereignty and territory: “The empire united to the domain, establishes the jurisdiction of the nation in its territories, or the country that belongs to it.”12 Not only should nations not usurp “the territory of another,” Vattel wrote, but “they should also respect it, and abstain from every act contrary to the rights of the sovereign: for a foreign nation can claim no right to it.”13 The only limitations that the law of nations imposed upon a nation’s right to govern within its own territory related to treatment of foreign representatives or citizens. For example, the law of state-​state relations required nations to respect the right of embassy, described above, and the rights of foreign citizens to personal safety and security.14 Nations otherwise had the right to govern their own citizens in their own territory as they saw fit. The only exception to this rule—​that one nation could not

7. Id. § 80, at 142. 8. 1 Id. bk. II, § 49, at 137. 9. Id. § 54, at 138. See Onuf & Onuf, supra note 2, 15 (explaining how Vattel “asserted the right of nations to be free from interference in their affairs”). 10. 1 Vattel, supra note 3, bk. II, § 54, at 138. 11. Id. § 55, at 138. 12. Id. § 84, at 147. 13. Id. § 93, at 151. 14. See id. §§ 71–​78, at 144–​46.

  47



The Law of State-State Relations and the Constitution

47

interfere in an internal dispute in another nation—​was when a nation was involved in a civil war. When “a civil war is kindled in a state, foreign powers may assist that party which appears to them to have justice on their side.”15 Absent civil war, however, “foreign nations are not to interfere in the constitutional government of an independent state. It is not for them to judge between contending citizens, nor between the prince and his subjects.”16 Finally, each nation had an equal and perfect right to neutral use of the high seas. This right reflected the importance of maritime commerce and access to the resources of the seas. Nations, Vattel explained, enjoyed freedom of commerce—​the “right to trade with those which shall be willing to correspond.”17 Thus, “[t]‌he right of navigating and fishing in the open sea, being then a right common to all men,”18 a nation had no “right to lay claim to the open sea, or to attribute the use of it to itself to the exclusion of others.”19 “[T]he nation who attempts to exclude another from that advantage,” Vattel concluded, “does it an injury, and gives a sufficient cause for war.”20 Vattel recognized that violation of any of these perfect rights—​to send and receive ambassadors, exercise territorial sovereignty, exercise treaty rights, and enjoy neutral use of the high seas—​gave the aggrieved nation just cause for war. These rights were “perfect” because the holder could carry them into execution without legal restraint, including by force. A “perfect right” under the law of nations, Vattel explained, “is that to which is joined the right of constraining those who refuse to fulfil the obligation

15. Id. § 56, at 139. As Vattel explained: When the bands of the political society are broken, or at least suspended between the sovereign and his people, they may then be considered as two distinct powers; and since each is independent of all foreign authority, nobody has a right to judge them. Either may be in the right, and each of those who grant their assistance may believe that he supports a good cause. It follows then, in virtue of the voluntary law of nations, that the two parties may act as having an equal right, and behave accordingly, till the decision of the affair. Id. 16. 2 Id. bk. III, § 296, at 111. 17. 1 Id. bk. II, § 24, at 128. 18. Id. bk. I, § 282, at 114. 19. Id. § 281, at 113. 20. Id. § 282, at 114.

48

48 T he Tr aditional L aw of Nations & the Constitution

resulting from it; and the imperfect right is that unaccompanied by this right of constraint.”21 Therefore, when one sovereign failed to obtain satisfaction for the violation of its perfect rights from another, the nation had just cause for waging war to compel compliance with the corresponding duty.22 The concept of perfect rights, although largely overlooked by modern scholars, was recognized in both England and America at the time of the founding.23

II In the 1780s, following the War of Independence, actions by American states in violation of other nations’ perfect rights were notorious. They increasingly undermined the United States’ relations with other nations and risked embroiling the fledgling nation in new wars. The Continental Congress had no effective means of preventing or redressing such state actions. Accordingly, state violations of the law of state-​state relations led to increased calls to amend or replace the Articles of Confederation. Upon declaring independence, the United States sought recognition from other nations to secure all of their sovereign rights under the law of nations.24 The Declaration of Independence asserted that the United States were “Free and Independent States” with rights to make treaties, enjoy neutral use of the high seas, exercise territorial sovereignty and diplomatic rights, and prevent and vindicate injuries by other nations.25 Once the United States declared independence, U.S.  representatives quickly sought formal recognition from other nations. France and the Dutch Republic were the only two nations to recognize the United States before Britain acknowledged U.S. independence in 1782. Other nations followed suit throughout the 1780s. Absent recognition, “the United States could 21. Id. intro., § 17, at 5. 22. Id. § 22, at 6–​7. 23. See Bellia & Clark, Federal Common Law of Nations, supra note 1, at 17–​18. 24. See Bellia & Clark, Law of Nations as Constitutional Law, supra note 1, at 753–​58; see also David M. Golove & Daniel J. Hulsebosch, A Civilized Nation: The Early American Constitution, the Law of Nations, and the Pursuit of International Recognition, 85 N.Y.U. L. Rev. 932, 942 (2010) (“[T]‌he primary audience for the Declaration was in Europe; what the drafters sought was precisely international recognition.”). See generally David Armitage, The Declaration of Independence:  A  Global History (2007) (describing the Declaration’s international dimensions). 25. The Declaration of Independence para. 32 (U.S. 1776).

  49



The Law of State-State Relations and the Constitution

49

not sign international treaties, have diplomatic relations, make formal military alliances, raise foreign loans, join international organizations, or benefit from regularized trade and commerce.”26 Moreover, until other nations granted them recognition, the United States “could not successfully claim protection of state rights as they were interpreted at the time.”27 While the United States collectively sought recognition in the 1780s from other nations to secure their rights under the law of state-​state relations, individual American states were notoriously violating other nations’ rights under the same law.28 States violated the 1783 Treaty of Paris with Great Britain by impeding the claims of British creditors. They violated the law of nations by failing to redress their citizens’ violence against British subjects. They violated the rights of ambassadors. They mishandled cases involving other nations’ rights to neutral use of the high seas. During the Confederation era, the Continental Congress was powerless to stop or remedy these violations, which threatened to provoke retaliation and even war against the United States. The Continental Congress’s inability to prevent state violations of the law of nations was a precipitating cause of the Federal Convention. Even as the Convention began, state violations of the law of nations continued. In a famous 1787 incident, a New York City constable entered the house of Pieter Johan van Berckel, Dutch minister plenipotentiary to the United States, with a warrant to arrest a member of the minister’s household. These actions violated the Dutch Republic’s rights under the law of state-​ state relations to send ambassadors and maintain embassies. Van Berckel protested to John Jay, the American foreign affairs secretary. Jay conveyed the complaint to Congress, but Congress was powerless to redress the violation. Jay reported that he could only refer the matter to “the Governor of the State of New York, to the End that such judicial Proceedings may be had on the Complaint … as Justice and the Laws of Nations may require.”29 This state of affairs was intolerable to Jay and others because it meant that the misconduct of a single American state could undermine friendly relations between a foreign nation and the United States as a whole.

26. Mikulas Fabry, Recognizing States: International Society and the Establishment of New States Since 1776, at 35 (2010). 27. Id. 28. See Bellia & Clark, Law of Nations as Constitutional Law, supra note 1, at 758–​60. 29. 34 Journals of the Continental Congress, 1774–​1789, at 111 (Roscoe R. Hill ed., 1937).

50

50 T he Tr aditional L aw of Nations & the Constitution

III A primary goal of the Federal Convention was to draft a constitution that would both prevent individual states from violating the rights of foreign nations in the future and enable the federal government to redress them should they occur. The founders also sought to centralize authority to hold foreign nations accountable for their own violations of U.S. rights under the law of nations. Accordingly, delegates to the Federal Convention sought to establish a new federal government capable of conducting foreign relations with other nations, maintaining peace by respecting the rights of foreign nations, and deciding when to take actions that—​under the law of nations—​could trigger or escalate hostilities with other nations. As recounted below, specific constitutional provisions served these ends. First, Articles I and II granted the federal political branches exclusive authority to exchange ambassadors with other nations, make treaties, declare and make war, issue reprisals, and authorize captures. Article I also gave Congress power to punish offenses against the law of nations. Second, Article III authorized federal courts to adjudicate several categories of cases likely to involve rights of foreign sovereigns under the law of state-​state relations—​rights that the Constitution’s exclusive allocation of foreign relations powers to the political branches required courts to uphold in the absence of contrary instructions from those branches. Together, these constitutional provisions ensured that the federal political branches—​rather than courts or states—​would control the relations of the United States with other nations and determine the momentous questions of war and peace that the law of state-​state relations implicated.

A Articles I and II of the Constitution include several specific provisions that grant the political branches of the federal government exclusive authority over war and the means of conducting foreign relations. These provisions employ terms of art drawn directly from the law of state-​state relations. It is not possible to understand these powers—​let alone determine their effect—​without consulting background principles of the law of nations against which they were drafted and ratified.30 30. See Sarah H. Cleveland, Our International Constitution, 31 Yale J. Int’l L. 1, 12–​33 (2006) (identifying constitutional provisions that expressly or implicitly refer to international law).

  51



The Law of State-State Relations and the Constitution

51

First, Articles I and II gave the political branches exclusive power over the traditional means of recognizing foreign nations. Such means included sending and receiving ambassadors, and making treaties. Recognition by the political branches signified that the United States as a whole respected the recognized nation’s rights as an independent sovereign under the law of nations. Second, Articles I and II gave the political branches exclusive authority over the traditional means by which nations resolved disputes with other nations. In The Law of Nations, Vattel listed the accepted means for the resolution of such disputes. If one nation violated another nation’s rights under the law of nations, the offended nation, if feasible, should use diplomacy to pursue an amicable adjustment, compromise, mediation, or arbitration.31 The offended nation’s “own advantage, and that of human society, oblige him to attempt, before he takes up arms, all the pacific methods of obtaining, either the reparation of the injury, or a just satisfaction; at least, if he has not good reason to dispense with it.”32 Such attempts included espousal, whereby the nation of an individual injured by another nation or its citizens would pursue the claim through diplomatic channels on the individual’s behalf.33 Sending and receiving ambassadors facilitated these attempts to resolve disputes peacefully. When these efforts failed to resolve a dispute, nations could seek satisfaction by other means. As Vattel put it, “[w]‌hen a Nation cannot obtain justice, either for a loss or an injury, it has a right to do itself justice.”34 In accordance with what Vattel called the “law of retaliation,”35 a nation could, where appropriate, seek justice by other means. One of these means was

31. 1 Vattel, supra note 3, bk. II, §§ 326–​30, at 243–​45. 32. Id. § 338, at 248. 33. Espousal was based on the fiction that “an injury to an alien was also an injury to the alien’s country of origin.” Andrea K. Bjorklund, Reconciling State Sovereignty and Investor Protection in Denial of Justice Claims, 45 Va. J. Int’l L. 809, 822 (2005). This understanding “facilitated the elevation of a dispute to the state-​to-​state level recognized under international law.” Id.; see also Thomas H. Lee, The Supreme Court of the United States as Quasi-​International Tribunal: Reclaiming the Court’s Original and Exclusive Jurisdiction over Treaty-​Based Suits by Foreign States Against States, 104 Colum. L. Rev. 1765, 1855–​56 (2004) (explaining espousal); Henry Paul Monaghan, Article III and Supranational Judicial Review, 107 Colum. L. Rev. 833, 851 (2007) (discussing the historical importance of espousal). 34. 1 Vattel, supra note 3, bk. II, § 339, at 248–​49. 35. Id.

52

52 T he Tr aditional L aw of Nations & the Constitution

to declare a policy of “retortion.”36 “When a sovereign is not satisfied with the manner in which his subjects are treated by the law and customs of another nation, he is at liberty to declare, that he will treat the subjects of that nation in the same manner as his are treated. This is what is called the law of retortion.”37 As discussed in the next chapter, the Marshall Court famously declined a litigant’s invitation to adopt a policy of retorsion against Spain on its own initiative, insisting “that reciprocating to the subjects of a nation, or retaliating on them, its unjust proceedings towards our citizens, is a political not a legal measure.”38 The Court refused to adopt a policy of retorsion in the absence of “an act for the purpose” passed by Congress because such a policy would override the ordinary rights that Spain enjoyed under the law of nations, and could thus trigger or escalate hostilities between the two nations.39 Under the Constitution’s allocation of powers, the decision to pursue retorsion was for “the government” rather than its courts.40 In addition, when other methods of obtaining justice were unavailing, a nation could resort to reprisals and captures—​authorized seizures of property belonging to another nation or its citizens in satisfaction of an injury, debt, or refusal to make satisfaction.41 Reprisals offered nations a means short of war to seek redress for injuries caused by other nations. Finally, where reprisals failed or were otherwise ineffective—​as when a dispute “relates to differences not on an act of violence, or of an injury received, but of a contested right”—​and “attempted ways of reconciliation, or pacific measures of obtaining justice” have failed or are futile, a nation could resort to a declaration of war.42 All of these traditional means of resolving disputes were well known to the founders. Not surprisingly, they designed the Constitution to give the political branches exclusive power over all such means—​namely, diplomacy (including espousal), retorsion, reprisals, captures, and war.

36. Id. § 341, at 249. 37. Id. 38. The Nereide, 13 U.S. (9 Cranch) 388, 422 (1815). 39. Id. at 423. 40. Id. 41. 1 Vattel, supra note 3, bk. II, § 342, at 249. 42. Id. § 354, at 254.

  53



The Law of State-State Relations and the Constitution

53

These powers gave the political branches exclusive authority to decide whether, when, and how the United States would hold another nation accountable for a violation of its rights under the law of state-​state relations. The Constitution’s allocation of powers necessarily implied that courts and states lacked authority to decide such questions on their own. Once the political branches exercised their authority to recognize a foreign nation, the nation in question enjoyed all of the rights of a sovereign state in U.S.  courts. To be sure, the political branches could limit or rescind those rights in response to misconduct by the nation in question. Courts and individual U.S. states, however, could not decide on their own to suspend or override the rights of a recognized foreign nation without usurping or contradicting the Constitution’s assignment of powers to the political branches in Articles I and II. The Constitution assigned the political branches exclusive power to recognize foreign nations, and a court’s failure to uphold the rights of recognized nations would contradict this assignment. Likewise, the Constitution assigned the political branches exclusive authority to pursue redress against nations that violated U.S. rights. A unilateral decision by courts or states to pursue such redress without political branch authorization would contradict this allocation of powers.

1 The Constitution vested the federal political branches with exclusive power over the traditional means of recognizing foreign sovereigns. Article II gave the President the powers to receive ambassadors and, by and with the advice and consent of the Senate, to appoint ambassadors and to make treaties. Collectively, these powers enabled the political branches of the federal government to recognize foreign nations and governments on behalf of the United States. Recognition was not merely ceremonial. Rather, it signified that one nation would respect the rights of another as a free and independent state under the law of nations. Both the nation conferring recognition and the nation receiving it understood recognition to be an acknowledgment that the recognized state was entitled to enjoy a set of important rights under the law of state-​state relations. Once the political branches recognized a foreign state, U.S. courts and states were bound by that decision to respect the rights that accompanied that status. Denial of these rights would have contradicted the political branches’ exercise of the recognition power and usurped their exclusive power to determine on behalf of the United States whether, when, and how to abrogate the rights incident to recognition.

54

54 T he Tr aditional L aw of Nations & the Constitution

At the time of the founding, the principal means by which nations signified recognition of each other consisted of sending and receiving ambassadors and making treaties. In England, the Crown had “the sole power of sending ambassadors to foreign states, and receiving them at home.”43 Moreover, the Crown also had the exclusive “prerogative to make treaties, leagues, and alliances with foreign states and princes.”44 The Constitution assigned both of these powers exclusively to the political branches of the federal government. Article II provides that the President “shall have Power, by and with the Advice and Consent of the Senate, to make Treaties.”45 At the same time, Article I, Section 10 expressly prohibited states from making treaties, providing in absolute terms that “[n]‌o state shall enter into any Treaty, Alliance, or Confederation,” or “enter into any Agreement or Compact … with a foreign Power.”46 Having assigned to the political branches the exclusive power to make treaties, the Constitution provided in Article VI that “all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land.”47 In addition, Article III extended the federal judicial power to “all Cases, in Law and Equity, arising under … Treaties made, or which shall be made,” under the authority of the United States.48 These provisions ensured that U.S. courts would treat both existing and future treaties—​including treaties recognizing other nations—​as the supreme law of the land. On the other hand, as this book endeavors to explain, how U.S. courts would treat the unwritten law of nations depended upon which branch of the law of nations was at issue, how that branch interacted with the Constitution, and the context in which a court was asked to apply it. Moreover, Article II provides that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls”49 and that “he shall

43. 1 William Blackstone, Commentaries *254. 44. Id. at *257. 45. U.S. Const. art. II, § 2, cl. 2. 46. Id. art. I, § 10, cl. 1, 3. 47. Id. art. VI. 48. Id. art. III, § 2. 49. Id. art. I, § 10, cl. 1, 3.

  55



The Law of State-State Relations and the Constitution

55

receive Ambassadors and other public Ministers.”50 Although the Constitution does not expressly prohibit states from sending or receiving ambassadors, a necessary implication from the document is that they may not do so. Article I, Section 10 provides express limits on state power, but the Constitution also implies limits on state power when its exercise would be “absolutely and totally contradictory and repugnant” to a power that the Constitution vests in the federal political branches.51 For example, few would contend that states have power to remove the President from office or appoint officers of the United States—​even though Article I, Section 10 does not expressly prohibit states from taking these actions. Likewise, no one has ever seriously contended that states have power to exchange ambassadors with foreign nations. Given the significance and effect of such an exchange under the law of state-​state relations, permitting states to undertake these actions would be incompatible with the express powers conferred by the Constitution on the political branches. Recognition is inherently exclusive by its very nature. A state’s recognition of a foreign nation or government in the face of the political branches’ refusal to do so would directly contradict a decision of the political branches. Similarly, a state’s recognition of a government other than the one recognized by the political branches would contradict the political branches’ legitimate exercise of their constitutional powers. As a functional matter, permitting states to send and receive ambassadors would have served no real purpose because states are expressly prohibited from making treaties or agreements with foreign nations. One of the basic functions of ambassadors was to negotiate potential agreements with the nations to which they were assigned. Although litigants and scholars have long debated the Constitution’s precise allocation of power between Congress and the President to recognize other nations, few have seriously maintained that states may recognize foreign nations on their own by sending or receiving ambassadors.

50. Id. art. I, § 3. 51. The Federalist No. 32, at 200 (Alexander Hamilton) (Jacob E. Cooke ed., 1961) (explaining that the Constitution conferred exclusive federal power and alienated state sovereignty “where it granted an authority to the Union, to which a similar authority in the States would be absolutely and totally contradictory and repugnant”); see also The Federalist No. 82, at 553–​54 (Alexander Hamilton) (Jacob E. Cooke ed., 1961) (stating that “where an authority is granted to the union with which a similar authority in the states would be utterly incompatible,” such authority is “exclusively delegated to the federal head”).

56

56 T he Tr aditional L aw of Nations & the Constitution

In this connection, a divided Supreme Court went so far as to hold in 2015 that the President’s power to receive ambassadors includes the exclusive power—​independent of Congress or the Senate—​to recognize foreign nations on behalf of the United States.52 Whether the Court accurately described the President’s power is not of central importance here.53 The key point for present purposes is one on which all members of the Court agreed: the Constitution gave the recognition power exclusively to the federal government (in the person of the President). This allocation of powers precludes both courts and states from taking it upon themselves to exercise or countermand the recognition power of the federal government.54 When the political branches exercised their power to make treaties, send and receive ambassadors, or undertake other formal acts of recognition, they signified on behalf of the United States that the nation as a whole would respect the other nation’s sovereign rights under the law of state-​state relations. Respect for such rights was the essential meaning of recognition under well-​known principles of the law of nations. Thus, when the political branches recognized a foreign nation or government on behalf of the United States, that determination necessarily bound both the courts and the states to respect that nation’s sovereign rights.55 To the 52. Zivotofsky v. Kerry, 135 S. Ct. 2076 (2015). Of course, even if the President’s power to receive ambassadors includes exclusive power to recognize foreign nations and governments, the Senate’s express powers permit it to disagree with the President—​and perhaps force compromise—​by refusing to confirm ambassadors to, or ratify treaties with, nations or governments recognized by the President. 53. Scholars have debated the respective powers of Congress and the President to recognize foreign sovereigns. See, e.g., David Gray Adler, The President’s Recognition Power: Ministerial or Discretionary?, 25 Presidential Stud. Q. 267, 279–​80 (1995) (arguing that the Constitution committed the recognition power to the President by virtue of the Reception Clause but that this function is ministerial); H. Jefferson Powell, The President’s Authority over Foreign Affairs: An Executive Branch Perspective, 67 Geo. Wash. L. Rev. 527, 556–​57 (1999) (arguing that the Constitution gives the President alone the recognition power and that this encompasses the authority free from legislative control to pursue executive policy objectives in the exercise of that power); Robert J. Reinstein, Recognition:  A  Case Study on the Original Understanding of Executive Power, 45 U. Rich. L. Rev. 801, 860–​62 (2011) (arguing that the recognition power was not vested in the President by the Constitution under an originalist reading). We need not resolve these debates. The important point, for present purposes, is that the Constitution allocated these powers, in whatever combination, to the federal political branches exclusively, rather than to courts or states. 54. Zivitofsky, 135 S. Ct. at 2091 (observing that “the Judiciary is not responsible for recognizing foreign nations”). 55.  See id. (citing Oetjen v.  Cent. Leather Co., 246 U.S. 297, 302 (1918) (explaining that “ ‘[w]‌ho is the sovereign, de jure or de facto, of a territory is not a judicial, but is a political question, the determination of which by the legislative and executive departments of any

  57



The Law of State-State Relations and the Constitution

57

founders, the power to recognize foreign nations by sending and receiving ambassadors or by making treaties would have been incomplete (if not largely nonsensical) if its exercise did not bind the entire United States (including its courts and constituent states) to respect the rights of recognized nations under the law of state-​state relations. Accordingly, the political branches’ exercise of their constitutional powers to recognize foreign nations required courts and states to respect the rights of such nations as incidents of recognition. Any judicial or state action that violated another nation’s rights—​for example, by disregarding rights of ambassadors, rights to neutral use of the high seas, or rights to territorial sovereignty—​would have violated the Constitution by contradicting the political branches’ exercise of their recognition powers.

2 Although the Constitution’s allocation of the recognition power to the political branches was sufficient to require courts and states to respect the rights of recognized nations under the law of state-​state relations, the Constitution’s allocation of war powers to the political branches may provide additional support for the same conclusion. The Constitution gave the federal political branches exclusive power to initiate and wage war on behalf of the United States. Although courts and scholars continue to debate the Constitution’s precise allocation of war powers between Congress and the President, there is little doubt that collectively the political branches possess exclusive authority under the Constitution to initiate and conduct war on behalf of the United States.56 The allocation of this exclusive authority to the political branches means that neither courts nor states possess constitutional authority to initiate or wage war. Understood against well-​accepted background principles of the law of state-​state relations, it is at least arguable that this prohibition on courts and states included actions that gave other nations just cause to wage war against the United States. As discussed, the law of state-​state

government conclusively binds the judges’ ” (quoting Jones v. United States, 137 U.S. 202, 212 (1890))); United States v. Palmer, 16 U.S. (3 Wheat.) 610, 643 (1818) (explaining that “the courts of the union must view [a] newly constituted government as it is viewed by the legislative and executive departments of the government of the United States”)). 56. See Anthony J. Bellia Jr. & Bradford R. Clark, The Political Branches and the Law of Nations, 85 Notre Dame L. Rev. 1795 (2010).

58

58 T he Tr aditional L aw of Nations & the Constitution

relations established that all recognized nations were entitled to exercise a set of perfect rights (including territorial sovereignty, neutral use of the high seas, and diplomatic relations). A nation’s violation of any of these rights gave the offended nation just cause for war. Thus, if a court or a state violated another nation’s perfect rights, the violation would be attributable to the United States as a whole and could initiate a war between the offended nation and the United States. Given this reality, early federal courts understood the Constitution to require them to respect the perfect rights of foreign nations in order to avoid triggering a war and usurping the constitutional prerogatives of the political branches. In England, the Crown had “the sole prerogative of making war and peace” because “the right of making war … [was] vested in the sovereign power.”57 In the United States, the Constitution collectively assigned Congress and the President the powers to make and conduct war.58 Article I gives Congress numerous powers over war making, most significantly the powers to “declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.”59 Article I also gives Congress several powers necessary to wage war, including powers to “raise and support Armies;”60 “provide and maintain a Navy;”61 “provide for calling forth the Militia to … repel Invasions;”62 “provide for organizing, arming, and disciplining, the Militia;”63 and “make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”64 In addition,

57. Blackstone, supra note 43, at *257. 58.  We do not undertake here to examine the precise allocation of war powers between Congress and the President—​a question that remains highly contested. See Bellia & Clark, Law of Nations as Constitutional Law, supra note 1, at 762 n.132 and accompanying text. The important point for present purposes is that the Constitution assigned these powers to the political branches of the federal government rather than to courts or states. 59. U.S. Const. art I, § 8, cl. 11. 60. Id. art I, § 8, cl. 12. 61. Id. art I, § 8, cl. 13. 62. Id. art I, § 8, cl. 15. 63. Id. art I, § 8, cl. 16. 64. Id. art I, § 8, cl. 18.

  59



The Law of State-State Relations and the Constitution

59

Article II grants the President certain powers relating to war. It provides that “[t]‌he executive Power shall be vested in a President of the United States of America;”65 that “[t]he President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States;”66 and that the President “shall take Care that the Laws be faithfully executed.”67 At the same time, Article I, Section 10 expressly provides that “[n]o State shall, without the Consent of Congress, … keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.”68 The Constitution thus allocated the powers to initiate and make war exclusively to the political branches—​ rather than to courts or states—​with only one exception. Although Article I, Section 10 generally prohibits states from engaging in war, it provides an exception when a state is “actually invaded, or in such imminent Danger as will not admit of delay.”69 Beyond this narrow exception for self-​defense, the Constitution prohibits all government actors—​other than the political branches of the federal government—​from initiating or engaging in war with foreign nations. This observation does not depend on any particular or contested understanding of the precise allocation of war powers between Congress and the President. The Constitution’s allocation of war powers to Congress and the President collectively suffices to establish the exclusivity of such powers. To be sure, the precise allocation of war powers between Congress and the President has long been subject to debate. For example, scholars continue to debate whether the Declare War Clause gives Congress exclusive authority to initiate conflict with other nations, or whether Article II permits the President to share that power.70 Both of these positions start

65. Id. art. II, § 1, cl 1. 66. Id. art II, § 2, cl. 1. 67. Id. art II, § 3. Of course, the Constitution also vests the political branches with authority to establish peace with other nations. As explained, the Constitution gives the political branches exclusive authority to make treaties (including peace treaties) and to send and receive the ambassadors and public ministers who would negotiate such instruments. 68. Id. art I, § 10, cl. 3. 69. Id. 70. Some scholars maintain that only Congress may commence war, Saikrishna Prakash, Unleashing the Dogs of War: What the Constitution Means by “Declare War”, 93 Cornell L. Rev.

60

60 T he Tr aditional L aw of Nations & the Constitution

from the premise, however, that Congress and the President—​in some combination—​possess the exclusive constitutional authority to declare war or initiate military conflict on behalf of the United States. Neither position suggests that the Constitution authorizes states or courts to declare or initiate a war with a foreign nation. One could even argue that the constitutional prohibition on states and courts initiating war on behalf of the United States was broad enough to include state or judicial actions that traditionally gave other nations formal justification to wage war against the United States. At the founding, it was well known that a violation of another nation’s perfect rights under the law of state-​state relations gave the offended nation just cause to wage war in response. Thus, such an action, in itself, may have amounted to a declaration or other act of war. In this regard, Professor Saikrishna Prakash has argued that the constitutional phrase “declare war” was broad enough to encompass “a number of hostile actions short of general warfare.”71 Specifically, he has explained that “it became common to regard as a declaration of war any words or actions that signaled [ formally or informally] that a nation had decided to wage war.”72 Such signals could include “ambassadorial dismissals,” “aiding a nation at war,” “permitting [private parties] to take the enemy’s naval vessels,” or seizing foreign vessels73—​in other words, taking certain actions in violation of other nations’ perfect rights under the law of state-​state relations. If these actions amounted to “declaring war,” then only Congress could authorize such actions on behalf of the United States.74 Assuming

45 (2007), or at least that Congress alone may commence offensive wars. See, e.g., Michael D. Ramsey, The President’s Power to Respond to Attacks, 93 Cornell L. Rev. 169, 169–​70 (2007). Other scholars have argued that the President also has authority under the Constitution to initiate armed conflict under the executive power, commander in chief, and take care clauses. See, e.g., John C. Yoo, The Continuation of Politics by Other Means: The Original Understanding of War Powers, 84 Calif. L. Rev. 167, 198 (1996); Philip Bobbitt, War Powers: An Essay on John Hart Ely’s War and Responsibility: Constitutional Lessons of Vietnam and Its Aftermath, 92 Mich. L. Rev. 1364, 1369, 1373–​74 (1994) (book review). 71.  Prakash, supra note 70, at 50. For a critique of Prakash’s argument, see Robert J. Delahunty & John Yoo, Making War, 93 Cornell L. Rev. 123 (2007). 72. Prakash, supra note 70, at 53–​54. 73. Id. at 78–​79. 74. Id. at 50. On the other hand, one could argue that to the extent that Article II empowers the President to take actions that could initiate a war—​such as dismissing an ambassador or aiding a nation at war—​the President also has some power to “declare war” in this broader sense.

  61



The Law of State-State Relations and the Constitution

61

Professor Prakash is correct, a reasonably informed member of the founding generation would have understood the Constitution’s allocation of war powers to the political branches to preclude U.S. courts and states from taking action—​such as violating another nation’s perfect rights—​that could trigger a war under established principles of the law of nations.

3 The Constitution’s allocation of powers also suggests that the political branches possess exclusive power to decide whether, when, and how the United States will hold other nations accountable for violations of U.S. rights under the law of nations. In addition to giving Congress the power “[t]‌o declare War,” Article I  empowers Congress to “grant Letters of Marque and Reprisal”75—​one of the accepted means by which nations retaliated against each other for injuries that an offending nation did not voluntarily redress to the other’s satisfaction. The power to grant letters of marque and reprisal immediately follows Congress’s power to declare war in the Constitution. These powers performed distinct—​albeit overlapping—​functions regarding the initiation, avoidance, and conduct of hostilities with other nations. The founders defined this power using terms drawn from the law of state-​state relations. Accordingly, this power can only be understood in light of such law. At the founding, the phrase “letter of marque and reprisal” was a term of art that referred to a sovereign act authorizing a private vessel or citizen to seize foreign property in retaliation and satisfaction for an injury committed by a foreign nation or its citizens. As Vattel explained: Reprisals are used between nation and nation to do justice to themselves, when they cannot otherwise obtain it. If a nation has taken possession of what belongs to another; if it refuses to pay a debt, to repair an injury, or to make a just satisfaction, the other may seize what belongs to it … [or] arrest some of the citizens, and not release them till [it has] received intire satisfaction.76

75. U.S. Const. art. I, § 8, cl. 11. In England, the power to issue letters of marque and reprisal was a prerogative of the Crown. Blackstone, supra note 43, at *257–​59. 76. 1 Vattel, supra note 3, bk. II, §§ 342, 351, at 249, 252.

62

62 T he Tr aditional L aw of Nations & the Constitution

William Blackstone gave a similar description of letters of marque and reprisal in his Commentaries. Such letters are grantable by the law of nations, whenever the subjects of one state are oppressed and injured by those of another; and justice is denied by that state to which the oppressor belongs. In this case letters of marque and reprisal (words used as synonymous; and signifying, the latter a taking in return, the former the passing the frontiers in order to such taking) may be obtained, in order to seize the bodies or goods of the subjects of the offending state, until satisfaction be made, wherever they happen to be found.77 At the founding, a nation granted reprisals only to redress injuries to itself or its own citizens. Because nations could vindicate only their own rights under the law of nations, a nation could not authorize reprisals to vindicate an injury suffered by a foreigner.78 Under the law of nations, only a sovereign could authorize reprisals because such action could profoundly affect state-​state relations and even lead to war. “It … belongs only to sovereigns,” Vattel explained, “to use and order reprisals.”79 For Blackstone, it was “obvious” that only the “sovereign power” may “determine when reprisals may be made; else every private sufferer would be judge in his own cause.”80 Reprisals had long served as a possible means for nations to resolve their disputes short of resorting to war. Because reprisals involved retaliating against other nations, however, they also risked escalating a conflict or triggering a war. If individuals made reprisals unauthorized by their nation, such individuals not only would have usurped the nations’s exclusive power to take such

77. Blackstone, supra note 43, at *258-​59. 78. As Vattel explained: But to grant reprisals against a nation in favor of foreigners, is to set himself up for a judge between that nation and these foreigners; which no sovereign has a right to do. The cause of reprisals ought to be just; it is even necessary that they should be founded on a denial of justice, which has already happened, or probably feared. Now what right have we to judge, whether the complaint of a stranger against an independent state is just, if he has really been denied justice? 1 Vattel, supra note 3, bk. II, § 348, at 251. 79. Id. § 346, at 250. 80. Blackstone, supra note 43, at *259.

  63



The Law of State-State Relations and the Constitution

63

measures, but also could have led the nation into war without its consent. Thus, nations often severely punished unauthorized reprisals in order to deter them and prevent such consequences. Against this background, Article I granted Congress power to issue letters of marque or reprisal on behalf of the United States, and Article I, Section 10 expressly forbade states from doing so.81 James Madison emphasized the importance of vesting the power to issue all reprisals—​whether during war or peace—​exclusively in Congress. Exclusive congressional authority to issue reprisals “is fully justified by the advantage of uniformity in all points which relate to foreign powers; and of immediate responsibility to the nation in all those, for whose conduct the nation itself is to be responsible.”82 If not managed carefully, reprisals could lead to war. By giving Congress exclusive power to authorize reprisals against foreign nations on behalf of the United States, the Constitution denied not only individuals, but also courts and states the right to take justice into their own hands. Unauthorized reprisals by any of these actors would have usurped congressional power and threatened the peace and security of the nation as a whole.

4 Immediately after authorizing Congress to issue letters of marque and reprisal, Article I  gives Congress the related power to “make Rules 81.  Scholars have debated whether the reprisal power gave Congress exclusive authority to launch any form of limited hostilities short of war or only a very specific form of limited hostilities. Compare Jules Lobel, Covert War and Congressional Authority:  Hidden War and Forgotten Power, 134 U. Pa. L. Rev. 1035, 1060–​61 (1986) (“By including the marque and reprisal clause in article I, section 8, the Framers attempted to insure that Congress would always be the branch to authorize armed hostilities against foreign nations, even if those hostilities were launched in time of peace.”), and Charles A. Lofgren, War-​Making Under the Constitution: The Original Understanding, 81 Yale L.J. 672, 697 (1972) (“[W]‌hile one cannot pretend that the matter is beyond all doubt, it seems plain that knowledge of the theory and practice of war and reprisal would have helped convince a late-​eighteenth century American that the Constitution vested Congress with control over the commencement of war, whether declared or undeclared.”), with Michael D. Ramsey, Textualism and War Powers, 69 U. Chi. L. Rev. 1543, 1599 (2002) (“The marque and reprisal power was, in short, a specific form of limited hostilities.”), and J. Gregory Sidak, The Quasi War Cases—​and Their Relevance to Whether “Letters of Marque and Reprisal” Constrain Presidential War Powers, 28 Harv. J.L. & Pub. Pol’y 465, 480 (2005) (“[T]here is no evidence that the Framers intended for the phrase ‘letters of marque and reprisal’ to serve as a shorthand for all conceivable forms of hostility that were not predicated on a prior declaration of war.”). This debate concerns the respective powers of Congress and the President to initiate hostilities on behalf of the United States. We need not enter this debate because, for our purposes, the important point is that Articles I and II vested these powers in the federal political branches (whatever the respective division between them) and not in states or courts. 82. The Federalist No. 44, at 299 (James Madison) (Jacob E. Cooke ed., 1961).

64

64 T he Tr aditional L aw of Nations & the Constitution

concerning Captures on Land and Water.”83 This clause empowered Congress to make laws authorizing both public and private forces to capture another nation’s goods, ships, and other moveable property as prizes both on land and at sea.84 It also enabled Congress to make rules governing adjudication of the legality and division of captured property by courts exercising admiralty jurisdiction.85 As discussed in Chapters 4 and 5, the law of state-​state relations included rules governing prize determinations, and the failure to adhere to such rules risked conflict with other nations. Accordingly, the power to authorize and regulate captures was an important means of avoiding, initiating, managing, and escalating hostilities with other nations.86 As Lord Mansfield explained: “By the law of nations, and treaties, every nation is answerable to the other for all injuries done, by sea or land, or in fresh waters, or in port.”87 Thus, improper captures on behalf of the United States could lead other nations to retaliate by various means, including war. Although Article I, Section 10 does not expressly prohibit states from making rules governing captures, Congress’s power to make such rules under Article I, Section 8 is necessarily exclusive. The express prohibitions on states engaging in war, issuing letters of marque and reprisal, keeping troops or ships of war, or even laying tonnage duties upon foreign vessels would have made no sense if states could have circumvented these prohibitions by making their own rules governing captures. Because captures were intimately bound up with both recognition and war under the law of nations, the Constitution’s allocation of these powers to Congress and the President required both states and courts to follow the law of state-​state relations regarding captures in the absence of contrary instructions from the political branches. Recognition signified that the United States would respect a nation’s right to neutral use of the high seas. Captures interfered with such rights, and could lead to war. If states or courts could make their own rules regarding captures, they would

83. U.S. Const. art. I, § 8, cl. 11. 84. See Ingrid Wuerth, The Captures Clause, 76 U. Chi. L. Rev. 1683, 1735 (2009). There is also at least some evidence that the Captures Clause permitted Congress to authorize the capture of prisoners as well. See id. at 1722–​23. 85. See id. at 1735. 86. See id. at 1728 (“This power over captures was significant not just for initiating conflict, but also in how it was waged.”). 87. Lindo v. Rodney, reprinted in LeCaux v. Eden (1781), 99 Eng. Rep. 375, 385 n.1, 388 (K.B.).

  65



The Law of State-State Relations and the Constitution

65

necessarily usurp the political branches’ exclusive authority over both recognition and an important instrument of war and peace.

5 In addition to granting Congress powers over war, reprisals, and captures, a distinct provision of Article I  gives Congress power “[t]‌o define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations.”88 This provision is usually understood to give Congress power to prohibit and punish—​both criminally and civilly—​acts by individuals that violate customary international law,89 and perhaps treaties as well.90 Under the traditional understanding, the Offences Clause allowed Congress at least to deter and remedy misconduct by Americans for which the United States could be held responsible by other nations. At the time of the founding, the availability of civil remedies and criminal punishments—​even to redress violations of the law of nations—​were strictly matters of local governance. The Offences Clause empowered Congress to authorize local judicial actions in U.S. courts punishing law of nations violations. There is less reason in this context, however, to conclude that the Constitution’s assignment of this power to Congress was exclusive of state authority to punish such offenses. State-​created crimes that upheld rights of foreign nations under the law of state-​state relations

88. U.S. Const. art. I, § 8, cl. 10. 89. See, e.g., Restatement (Third) of the Foreign Relations Law of the United States § 111 reporters’ note 6, § 404 reporters’ note 1 (Am. Law Inst. 1987); Curtis A. Bradley & Jack L. Goldsmith, Foreign Relations Law 153–​54, 521 (2d ed. 2006); Louis Henkin, Foreign Affairs and the United States Constitution 68–​70 (2d ed. 1996); Eugene Kontorovich, The “Define and Punish” Clause and the Limits of Universal Jurisdiction, 103 Nw. U.L. Rev. 149 (2009); Charles D. Siegal, Deference and Its Dangers: Congress’ Power to “Define … Offenses against the Law of Nations,” 21 Vand. J. Transnat’l L. 865 (1988); Beth Stephens, Federalism and Foreign Affairs:  Congress’s Power to “Define and Punish … Offenses against the Law of Nations,” 42 Wm. & Mary L. Rev. 447 (2000). 90. Professors Sarah Cleveland and William Dodge have argued that the Offences Clause also permits Congress to punish violations of treaties (on the theory that treaty violations were also violations of the law of nations). See Sarah H. Cleveland & William S. Dodge, Defining and Punishing Offenses Under Treaties, 124 Yale L.J. 2202 (2015). In addition, Professor Andrew Kent has argued that the Clause empowers Congress to define and punish offenses not only by individuals, but also by states or nations. See J. Andrew Kent, Congress’s Under-​Appreciated Power to Define and Punish Offenses Against the Law of Nations, 85 Tex. L. Rev. 843 (2007). Under any of these conceptions, the Offences Clause is an important power integral to Congress’s broader authority over war and peace.

66

66 T he Tr aditional L aw of Nations & the Constitution

would not have necessarily contradicted U.S. recognition of those nations or risked war. The problem that the Offences Clause sought to rectify was not state efforts to uphold the rights of other nations under the law of state-​state relations, but state failures to punish violations of such rights. Accordingly, Congress used its powers under the Offences Clause from early on to uphold the rights of foreign nations by punishing their violation. For example, in the Crimes Act of 1790, Congress made it a federal offense to commit several well-​known violations of the law of nations—​namely, offenses against ambassadors,91 violations of safe conducts,92 and piracy.93 Failure to punish such acts by Americans would have rendered the United States liable to the nations whose rights were violated. The Crimes Act, however, was by no means comprehensive and left important gaps. In 1793, President Washington issued his famous Neutrality Proclamation, declaring that the United States would remain neutral in the war between Britain and France and giving “instructions to those officers to whom it belongs, to cause prosecutions to be instituted against all persons, who shall … violate the law of nations, with respect to the powers at war.”94 Soon thereafter, Gideon Henfield (an American citizen) violated U.S. neutrality (and Britain’s right to use the high seas) by assisting the French war effort as the captain of a privateer that sailed out of an American port and captured a British ship.95 Henfield was arrested and—​because there was no applicable federal statute—​charged with a federal common law crime. After a trial, the jury acquitted Henfield, perhaps because his attorney objected that there was no federal statute making his conduct a crime. In response, Congress quickly enacted a criminal statute prohibiting individuals from accepting a foreign military commission, outfitting military vessels for a foreign state, or recruiting persons for the service of a foreign state.96 Congress enacted this statute, like the Crimes

91. Crimes Act of 1790, §§ 25–​26, 28, 1 Stat. 112, 117–​18. 92. Id. 93. Id. § 8, at 113–​14. 94.  George Washington, Proclamation of Neutrality:  Philadelphia, April 22, 1793, in 32 The Writings of George Washington 430, 430–​31 (John C. Fitzpatrick ed., 1931). 95. See Henfield’s Case, 11 F. Cas. 1099, 1110–​13 (C.C.D. Pa. 1793) (No. 6360). 96. Act of June 5, 1794, ch. 50, 1 Stat. 381 (1794). Henfield’s Case and the inadequacy of federal common law crimes are discussed at greater length in Chapter 7.

  67



The Law of State-State Relations and the Constitution

67

Act of 1790 that preceded it, pursuant to the Offences Clause.97 This episode provides an early example of how the Offences Clause empowered Congress to uphold the rights of foreign sovereigns under the law of state-​ state relations.

B The Constitution also enlisted federal courts to uphold the rights of foreign nations under the law of state-​state relations by granting them jurisdiction in Article III to hear several categories of cases likely to involve such law. Through these provisions, the founders sought to avoid conflict with other nations by authorizing an alternative to adjudication in state court, where foreigners had faced substantial bias and foreign nations had been unable to vindicate their rights under the law of state-​state relations. In The Federalist, Alexander Hamilton explained why federal jurisdiction in cases involving state-​state relations was necessary to “the peace of the confederacy.” This jurisdiction rests on a plain proposition, that the peace of the whole ought not to be left at the disposal of a part. The union will undoubtedly be answerable to foreign powers for the conduct of its members. And the responsibility for an injury ought ever to be accompanied with the faculty of preventing it. As the denial or perversion of justice by the sentences of courts, as well as in any other manner, is with reason classed among the just causes of war, it will follow that the federal judiciary ought to have cognizance of all causes in which the citizens of other countries are concerned. This is not less essential to the preservation of the public faith, than to the security of the public tranquility.98

97. The Offences Clause would serve an even greater role in matters of war and peace under Professor Kent’s reading. Allowing Congress to define and punish offenses against the law of nations not only by individuals, but also by nations would permit Congress to initiate and escalate hostilities with other nations. Should France, for example, violate the United States’ neutral use of the high seas, Congress could declare a violation of the law of nations and prescribe appropriate “punishments.” Whether Professor Kent’s reading is historically accurate may be a purely academic question. Under its powers to declare war, grant letters of marque and reprisal, and make rules governing captures, Congress already has ample means to define and punish another nation’s violation of the United States’ rights under the law of nations. 98. The Federalist No. 80, at 535–​36 (Alexander Hamilton) (Jacob E. Cooke ed., 1961).

68

68 T he Tr aditional L aw of Nations & the Constitution

In pertinent part, Article III extended the federal judicial power to the following cases and controversies: to all Cases, in Law and Equity, arising under this Constitution, the laws of the United States, and Treaties made, or which shall be made, under their Authority;—​to all Cases affecting Ambassadors, other public Ministers and Consuls;—​to all Cases of admiralty and maritime Jurisdiction; … and [to controversies] between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.99 Understood in historical context, these categories referred to concepts drawn from the law of nations, and contemplated federal adjudication of those disputes most likely to involve the rights of foreign sovereigns under the law of state-​state relations. The Arising Under Clause permitted federal courts to adjudicate cases arising under “treaties made, or which shall be made,” under the authority of the United States. Under the law of state-​state relations, violation of a treaty was a violation of a perfect right, providing the offended nation just cause for war. States had widely and notoriously violated the rights of British subjects under the 1783 Treaty of Paris with Great Britain, thus violating the law of state-​state relations. Congress quickly exercised its constitutional power to establish federal courts capable of exercising jurisdiction in such cases. The Judiciary Act of 1789 gave lower federal courts jurisdiction over suits between British subjects and citizens of U.S. states, subject to a $500 amount-​in-​controversy requirement. The Act also extended the Supreme Court’s appellate jurisdiction to state court judgments denying rights under treaties of the United States.100 In addition to cases arising under treaties, Article III extended the federal judicial power to “all cases affecting ambassadors, other public ministers and consuls.” Cases affecting ambassadors were highly significant because foreign ambassadors represented the sovereign authority of their nations. The law of state-​state relations recognized certain rights and immunities enjoyed by ambassadors, the violation of which could impair relations and even lead to war. Article III authorized original Supreme Court jurisdiction over cases affecting ambassadors. This jurisdiction

99. U.S. Const. art. III, § 2. 100. Judiciary Act of 1789, ch. 20, § 25, 1 Stat. 73, 85–​86.

  69



The Law of State-State Relations and the Constitution

69

allowed ambassadors and other public ministers to seek redress for violations of their rights in the highest court of the United States and prevented state judicial proceedings against ambassadors in violation of the law of nations. In the Judiciary Act of 1789, Congress gave the Supreme Court exclusive original jurisdiction over all suits against ambassadors and public ministers, or members of their households. This jurisdiction ensured that suits against ambassadors would be brought in the seat of government where they were stationed. Congress also gave ambassadors and public ministers the option of filing suits of their own in either the Supreme Court or inferior federal courts.101 Furthermore, Article III extended federal judicial power to “cases of admiralty and maritime jurisdiction.” This jurisdiction included both private maritime cases (governed by the law maritime) and prize cases (governed by the law of state-​state relations). Under the law of state-​ state relations, warring sovereigns had the right to make prizes of their adversaries’ ships, goods, and effects captured at sea.102 In the eighteenth and early nineteenth centuries, nations encouraged privateers to capture enemy ships by enabling them to recover the value of such captures through proceedings in admiralty courts.103 Admiralty jurisdiction facilitated this function, but it also served to remedy abuses. Proper adjudication of such cases was necessary to prevent and redress violations of the law of state-​state relations, particularly the right of nations to neutral use of the high seas. “[B]‌ecause ‘a nation was responsible for the actions of its [privateers]’ … it was essential to the public peace and the amicable relations of nations that prize courts adhere closely to the law of nations.”104 As Justice Joseph Story explained in his Commentaries on the Constitution, “[i]f justice be there denied, the nation itself becomes responsible to the parties aggrieved,” and the nation to which the aggrieved parties belong “may vindicate their rights, either by a peaceful appeal to negotiation, or by a resort to arms.”105 The Constitution’s grant of admiralty jurisdiction ensured that

101. Id. § 13, at 80–​81. 102.  See Bradford R. Clark, Federal Common Law:  A  Structural Reinterpretation, 144 U. Pa. L. Rev. 1245, 1334 (1996). 103. Id. 104. Id. at 1335 (footnote omitted) (quoting William R. Casto, The Origins of Federal Admiralty Jurisdiction in an Age of Privateers, Smugglers, and Pirates, 37 Am. J. Legal Hist. 117, 124 (1993)). 105.  Joseph Story, Commentaries on the Constitution of the United States § 865 (Ronald D. Rotunda & John E. Nowak eds., Carolina Academic Press 1987) (1833).

70

70 T he Tr aditional L aw of Nations & the Constitution

federal courts—​rather than state courts—​would apply the law of nations in disputes capable of taking the nation to war.106 Article III also extended the federal judicial power to controversies between a state or its citizens, and a foreign nation or its citizens. The First Congress implemented this diversity jurisdiction by allowing foreigners to sue Americans in federal courts for claims exceeding $500. As explained in more detail in the previous chapter, one reason for this jurisdiction was to enable federal courts to apply the law merchant in commercial disputes between foreign citizens and U.S.  citizens. But another reason for this jurisdiction was to enable federal courts to hear cases that implicated the law of state-​state relations, and therefore directly affected the United States’ foreign relations with other countries. As noted, British subjects invoked foreign diversity jurisdiction to collect their debts against Americans and recover their property, as guaranteed by the Treaty of Paris.107 The founders considered federal jurisdiction necessary because failure to uphold the rights of British subjects under the Treaty would have given Great Britain just cause for war. Foreign diversity jurisdiction enabled the United States to comply not only with treaty obligations, but with other obligations under the law of state-​state relations as well. For example, at the founding, a nation had an obligation to redress acts of violence by its citizens against the citizens of a foreign nation. If a nation failed to redress such violence, then the nation became responsible and gave the offended nation just cause to retaliate. During the 1780s, state courts often failed to redress acts of violence by Americans against foreigners, especially British subjects who returned to America after the war to collect their debts. Article III’s foreign diversity jurisdiction enabled Congress to address this problem by allowing aliens to sue Americans in federal court, where they were more likely to obtain redress. Ordinary foreign diversity jurisdiction, however, contained a $500 amount-​in-​controversy requirement, which would have screened out almost all tort claims at the time. Accordingly, Congress included Section 9 in the First Judiciary Act—​a provision that became known as the Alien Tort Statute—​to enable aliens to sue Americans for intentional acts of

106. Even the Articles of Confederation authorized national courts to hear “the trial of piracies and felonies committed on the high seas; and … appeals in all cases of captures.” Articles of Confederation of 1781 art. IX, § 1. 107. Smaller claims (for $500 or less) were brought in state court, but litigants could seek review in the Supreme Court if a state court denied a treaty claim. See Judiciary Act of 1789, ch. 20, § 25, 1 Stat. 73, 85–​87.

  71



The Law of State-State Relations and the Constitution

71

violence in federal court with no amount-​in-​controversy requirement.108 This jurisdictional provision enabled federal courts to satisfy the United States’ obligation under the law of state-​state relations to redress harms committed by Americans against aliens, and thus freed the United States from its precarious reliance on state courts alone to provide such redress. In all of these ways, the Constitution and early acts of Congress used federal courts as a means of ensuring that the United States complied with its obligations to other nations under the law of state-​state relations. By respecting the rights of foreign sovereigns under the law of state-​state relations in these cases, federal courts upheld both the Constitution’s allocation of powers to the political branches and their specific exercise of these powers. Any U.S.  violation of a foreign state’s rights under the law of state-​state relations—​or any attempt to pursue redress against a foreign nation for its violations of U.S. rights—​would have either contradicted recognition or risked triggering hostilities (including war) with a foreign nation. As discussed in subsequent chapters, the Constitution reserved all decisions of this nature to the political branches, exclusive of both U.S. courts and states. The Constitution’s exclusive allocation to the federal political branches of powers over recognition, war, reprisals, and captures required states and courts to uphold the traditional rights of foreign sovereigns under the law of nations and to avoid pursuing redress against them for violating U.S. rights. Contrary action by courts or states would have countermanded or usurped political branch authority. Federal and state courts shared the same obligations in this regard, but the Constitution also empowered Congress to vest jurisdiction of many cases involving the rights of foreign sovereigns in federal courts alone—​or at least to give plaintiffs the option of a federal forum—​and to subject state court judgments to federal appellate review. The First Congress used this power immediately by establishing a federal court system for the United States and giving it jurisdiction over cases most likely to generate serious hostilities with other nations if not handled properly. As the next chapter shows, absent contrary instructions from the political branches, courts from the founding to the present have both respected rights of foreign nations under the law of state-​state relations and refrained from pursuing redress against them for violating U.S. rights under such law. Both practices have served to uphold the Constitution’s allocation of war and foreign relations powers to the political branches. 108.  See Anthony J. Bellia Jr. & Bradford R. Clark, The Alien Tort Statute and the Law of Nations, 78 U. Chi. L. Rev. 445 (2011).

72

  73

4

The Law of State-​State Relations in Federal Courts

The Constitution extended the judicial power of the United States to cases and controversies likely to implicate the law of state-​state relations, and the First Congress quickly vested federal courts with jurisdiction to hear such cases. From 1789 to the present, the Supreme Court has had numerous opportunities to apply the law of state-​state relations in cases within its jurisdiction. In adjudicating cases involving such law, the Supreme Court has upheld the Constitution’s allocation of powers over war and foreign relations in two important ways. First, the Court has respected the rights of recognized foreign nations under the law of state-​state relations. Second, the Court has refused to hold foreign nations accountable for violating U.S. rights under the law of state-​state relations unless the political branches have clearly authorized U.S. courts to do so. In some cases, the Court has tied the application of the law of nations to the Constitution’s allocation of powers to Congress and the President over war and foreign relations. In other cases, the Court has applied the law of nations more reflexively without much discussion of its precise rationale for doing so. In all such cases, throughout U.S. history, however, the Court has applied the law of state-​state relations in ways that have served to uphold the Constitution’s allocation of powers. As this chapter explains, judicial respect for the rights of recognized foreign states under the law of nations has served to uphold recognition of foreign nations and governments by the political branches. Judicial respect for such rights also has avoided triggering unauthorized hostilities (or even war) with foreign nations. The Law of Nations and the United States Constitution. Anthony J. Bellia Jr. and Bradford R. Clark. © Oxford University Press 2017. Published 2017 by Oxford University Press.

74

74 T he Tr aditional L aw of Nations & the Constitution

Moreover, judicial refusal to hold foreign nations accountable for violating the rights of the United States under the law of nations has served to uphold the Constitution’s exclusive allocation of powers to the political branches to pursue satisfaction from—​or otherwise hold accountable—​ foreign nations for such misconduct. The Constitution expressly grants the political branches the power to pursue redress against foreign nations through such traditional means as espousal, reprisals, captures, and war. By refusing to redress other nations’ violations of the law of nations, the Court has upheld not only the political branches’ exclusive authority to decide whether, when, and how to hold foreign nations accountable for their misconduct, but also—​by extension—​the political branches’ authority to decide whether the United States will initiate or escalate hostilities with other nations. This chapter reviews several of the Supreme Court’s leading decisions involving the law of state-​state relations from the founding to the present. The discussion places the Court’s decisions in their proper historical and legal context by identifying the precise branch of the law of nations involved (the law of state-​state relations), and by highlighting the specific constitutional provisions implicated. This analysis reveals the continuing importance of these provisions to current debates over the role of modern customary international law in U.S. courts, a question to which we return in Chapters 8, 9, and 10.

I From early on, federal courts looked to the law of nations to provide rules of decision in various cases within their jurisdiction. The law of state-​state relations furnished the rule of decision in many federal court cases in the decades immediately following ratification, especially in the important category of prize cases within their admiralty and maritime jurisdiction.1 As with the law merchant, the states adopted the law of state-​state relations when they received the common law of England. Accordingly, the law of state-​state relations presumptively applied as part of every state’s

1. For discussions of various early prize cases that the Supreme Court resolved, see David L. Sloss, Michael D. Ramsey & William S. Dodge, International Law in the Supreme Court to 1860, in International Law in the U.S. Supreme Court: Continuity and Change 7, 25–​26 (David L. Sloss, Michael D. Ramsey & William S. Dodge eds., 2011); David Sloss, Judicial Foreign Policy: Lessons from the 1790s, 53 St. Louis Univ. L.J. 145, 176–​83 (2008).

  75



The Law of State-State Relations in Federal Courts

75

background law. The law of state-​state relations, however, interacted differently with the Constitution than did the law merchant. The Constitution’s express allocation of powers over war and foreign relations frequently required courts and states to apply the law of state-​state relations to uphold the rights of foreign nations even if a state preferred to depart from such law. Prior to Erie, federal courts had no real need to explain the source of the law they were applying in cases involving the law of nations, whether it be the law of state-​state relations, the law merchant, or the law maritime. Consistent with the states’ reception of the common law, federal and state courts alike routinely applied general law absent any apparent conflict with state or federal law. From early on, however, the Supreme Court specified in several cases that the Constitution’s exclusive allocation of foreign relations powers to the political branches required U.S. courts to respect the rights of foreign sovereigns under the law of state-​state relations. Even when the Court did not explain why it was upholding a foreign nation’s rights under the law of state-​state relations, the Court’s application of such law was consistent with the Constitution’s allocation of war and foreign relations powers to the political branches. In the twentieth century, when states attempted to depart from the law of state-​state relations, the Court made clear that the Constitution required federal and state courts alike to uphold the traditional rights of foreign nations under such law. Conversely, the Supreme Court declined from early on to apply the law of state-​state relations against a foreign nation—​or otherwise take adverse action against it—​for violating U.S.  rights under such law. Because the Constitution allocated the espousal, reprisal, captures, and war powers to the political branches of the federal government, the Constitution required courts to refrain from taking any remedial action that could usurp the political branches’ exclusive authority to decide whether, when, and how to pursue redress against other nations for their misdeeds. Thus, the Constitution’s allocation of powers produced two constitutional default rules that have characterized the Supreme Court’s jurisprudence throughout U.S. history. First, U.S. courts must respect the rights of recognized foreign nations under the law of state-​state relations absent contrary direction from the political branches. Second, U.S. courts must decline to hold foreign nations accountable for violations of such law without clear political branch authorization. Both of these rules have served to uphold the Constitution’s exclusive allocation of war and foreign relations powers to Congress and the President.

76

76 T he Tr aditional L aw of Nations & the Constitution

United States v. Peters,2 decided in 1795, was one of the earliest Supreme Court decisions involving the law of state-​state relations. Peters illustrates that members of the founding generation understood judicial respect for the rights of foreign sovereigns under the law of state-​state relations to be essential to the peace of the United States and integral to upholding the constitutional prerogatives of Congress and the President. Peters also illustrates the Court’s early understanding that the Constitution’s allocation of powers precluded courts from holding foreign nations accountable for their violations of the law of nations unless the political branches clearly authorized courts to do so. In Peters, the Supreme Court upheld the authority of France to adjudicate the legality of prizes within its own territory under a traditional rule of the law of nations. More broadly, under the law of nations as it existed in 1789, respect for the authority of a nation to govern within its own territory was an ordinary incident of recognition and necessary to avoid conflict (including war) with a recognized nation. In addition to upholding France’s authority, the Peters Court refused even to consider whether it should deny France its rights under the law of state-​ state relations as a consequence of France’s alleged violation of U.S. rights under such law. The Constitution, the Court determined, gave the political branches—​not the courts—​exclusive authority to decide whether, when, and how to hold France accountable for such violations. By way of background, France was the first nation to recognize the United States when it entered into a Treaty of Amity and Commerce and a Treaty of Alliance with the United States in 1778. After recognition, the United States proceeded to receive an official ambassador from France. Later, following the French Revolution, President Washington recognized the new French government by receiving Citizen Genêt in 1793.3 By these acts, each nation recognized the other and signified its respect for the other’s sovereign rights under the law of state-​state relations. These acts of mutual recognition—​crucial to the independence of the United States—​ were well known when the Supreme Court decided Peters in 1795. Soon after the United States recognized the new French government in 1793, Peters presented the Supreme Court with issues that involved France’s rights and obligations under the law of state-​state relations. The question presented was whether a United States district court, in the exercise of its

2. 3 U.S. (3 Dall.) 121 (1795). 3. See Julius Goebel, Jr., The Recognition Policy of the United States 105–​12 (1915).

  77



The Law of State-State Relations in Federal Courts

77

admiralty jurisdiction, could assess damages against the Cassius, a vessel commissioned by France to cruise against enemy ships. James Yard, a Philadelphia merchant, filed a libel in federal court against the Cassius, then at port in Philadelphia, alleging that it had violated U.S. rights under the law of nations by erroneously capturing his neutral U.S. vessel on the high seas and taking it to France, where a French court condemned it as a lawful prize. As in all libel actions against a vessel, the district court seized control of the French ship pending adjudication of the claim. The Supreme Court issued a writ of prohibition divesting the district court of jurisdiction, thereby freeing the ship. The Court determined that if the U.S. district court were to exercise jurisdiction over the Cassius under these circumstances, the United States would violate France’s rights under the law of nations to make binding prize determinations in the courts of its own territory: [B]‌y the laws of nations, the vessels of war of belligerent powers, duly by them authorized, to cruize against their enemies, and to make prize of their ships and goods, may, in time of war, arrest and seize the vessels belonging to the subjects or citizens of neutral nations, and bring them into the ports of the sovereign under whose commission and authority they act, there to answer for any breaches of the laws of nations, concerning the navigation of neutral ships, in time of war; and the said vessels of war, their commanders, officers and crews, are not amenable before the tribunals of neutral powers for their conduct therein … .4 In the eighteenth and early nineteenth centuries, prize determinations by a nation’s courts regarding property brought within its territory constituted official acts of the foreign state, and the law of state-​state relations required the courts of other nations to treat them as conclusive and unreviewable. Had the Peters Court allowed the district court to adjudicate the legality of the capture, it would have violated France’s rights under the law of nations, and given France just cause to retaliate against the United States. This background sheds light on why the Peters Court regarded adjudication of Yard’s claim as both inconsistent with the law of nations and a threat to the peace of the United States. The Court pointedly described

4. Peters, 3 U.S. (3 Dall.) at 129–​30.

78

78 T he Tr aditional L aw of Nations & the Constitution

Yard’s suit as “contriving and intending to disturb the peace and harmony subsisting between the United States and the French Republic.”5 This statement reflected the well-​established principles of the law of state-​state relations that gave France both authority to make binding prize determinations within its own territory and just cause to retaliate against any nation whose courts disregarded such determinations. The Peters Court also characterized the district court proceedings as being “in contempt of the government of the United States, against the laws of nations, and the treaties subsisting between the United States and the French Republic, and against the laws and customs of the United States.”6 As noted, the United States and France had recognized each other as independent states under the law of nations, and entered into treaties reflecting this understanding. Recognition signified that each nation would respect the sovereign rights of the other under the law of nations. Thus, recognition by the United States required its courts to give effect to the French judgment—​and thus to respect France’s rights under the law of nations—​in order to respect the Constitution’s allocation of the recognition power to the political branches. A decision by the district court overriding France’s prize determination would have been “in contempt of the government of the United States” because it would have contradicted recognition. These principles were so well understood at the time that they did not warrant further discussion. In addition to upholding recognition, the Supreme Court’s decision in Peters upheld the political branches’ exclusive constitutional authority to decide whether, when, and how to hold France accountable for any violation of U.S. rights. Although the law of nations precluded judicial review of foreign prize determinations, the victims of erroneous decrees could seek redress for an erroneous capture by convincing their own governments to espouse claims on their behalf. Historically, espousal by a sovereign of a claim by one of its citizens against a foreign state “rendered it a public claim on the international plane, and the [claimant’s] sovereign could lawfully wage war to vindicate the espoused claim.”7 Alternatively, the victims of erroneous prize determinations could convince their own governments 5. Id. at 130 (emphasis omitted). 6. Id. at 131 (emphasis omitted). 7.  Thomas H. Lee, The Supreme Court of the United States as Quasi-​ International Tribunal: Reclaiming the Court’s Original and Exclusive Jurisdiction over Treaty-​Based Suits by Foreign States Against States, 104 Colum. L. Rev. 1765, 1856 (2004) (citations omitted).

  79



The Law of State-State Relations in Federal Courts

79

to authorize reprisals or captures against the offending nation and its property—​including the offending vessel—​to obtain satisfaction. As discussed in Chapter 3, a plausible way to read the Constitution’s text and structure is that the exclusive power of the political branches to pursue satisfaction against a foreign nation through diplomacy, and to authorize reprisals and captures and to make war, prohibited courts from taking it upon themselves to redress misconduct by foreign nations without political branch authorization. Either of the two accepted means of obtaining redress short of war—​espousal or reprisal—​required the political branches to make an important policy decision because both actions risked escalation of hostilities and even war. This background helps to explain why the Peters Court acted quickly to dismiss the district court case, and described Yard’s suit against the Cassius as “contriving and intending to disturb the peace and harmony subsisting between the United States and the French Republic.”8 Peters is just one example of many cases in the early decades of the United States in which federal courts upheld the constitutional prerogatives of the political branches over foreign relations by either respecting the traditional sovereign rights of foreign nations, or declining to adjudicate a foreign nation’s alleged violation of U.S. rights.9 The Supreme Court’s 1812 decision in The Schooner Exchange v.  McFaddon10 confirmed the essential role of the Constitution’s allocation of powers in the Court’s decisions involving the respective rights of the United States and foreign nations. In The Schooner Exchange, the original American owners of a French warship anchored in the port of Philadelphia brought an action to recover the vessel on the ground that French nationals had “violently and forcibly taken” the ship from them on the high seas “in violation of the rights of the libellants, and of the law of nations.”11 Unlike in Peters, the law of nations did not bar U.S. courts from examining the legality of the capture because “no sentence or decree of condemnation had been pronounced against [the ship], by any [French]

8. Peters, 3 U.S. (3 Dall.) at 130 (emphasis omitted). 9. See Anthony J. Bellia Jr. & Bradford R. Clark, The Law of Nations as Constitutional Law, 98 Va. L. Rev. 729, 779–​99 (2012) [hereinafter Bellia & Clark, Law of Nations as Constitutional Law]. 10. 11 U.S. (7 Cranch) 116 (1812). 11. Id. at 117.

80

80 T he Tr aditional L aw of Nations & the Constitution

court of competent jurisdiction.”12 Thus, the United States’ recognition of France did not itself bar judicial review of the legality of the capture. The Schooner Exchange presented the distinct question whether U.S.  courts could provide redress to the original owners for France’s alleged violation of U.S.  rights. As the Court put it, the question was “whether an American citizen can assert, in an American court, a title to an armed national vessel [of another country], found within the waters of the United States.”13 Recognition did not settle this question in favor of France because France had no right to immunity for such ships under the law of state-​state relations. As the Court explained, any immunity for foreign warships in the United States could not derive its “validity from an external source” because the “jurisdiction of the nation within its own territory is necessarily exclusive and absolute.”14 Thus, any such immunity “must be traced up to the consent of the nation itself” in conformity with “those principles of national and municipal law by which it ought to be regulated.”15 To determine whether the United States had consented to immunity in these circumstances, the Court relied upon the Constitution’s allocation of powers to the political branches. The Court both upheld immunity for the French ship in question and refused to take any action to redress France’s alleged misconduct. Some background is necessary to understand the basis and full import of the Court’s decision. When the French warship in question was anchored in Philadelphia, the plaintiffs filed their libel against the ship in the district court, claiming that French nationals had illegally seized the vessel from them on the high seas and had never obtained valid title. The plaintiffs sought the court’s assistance in recovering their ship. In response, the U.S. Attorney “(at the instance of the executive department of the government of the United States, as it is understood,) filed a suggestion” of immunity with the court.16 The district court agreed with this suggestion and dismissed the case on the ground that “a public armed vessel of a foreign sovereign, in amity with our government, is not subject to the ordinary judicial tribunals of

12. Id. at 117, 146–​47. 13. Id. at 135. 14. Id. at 136. 15. Id. at 135–​36. 16. Id. at 117–​18.

  81



The Law of State-State Relations in Federal Courts

81

the country.”17 The circuit court reversed, and the U.S. Attorney sought review in the Supreme Court.18 Because the case involved “the political relations between the United States and France,” the Court agreed to expedite the case.19 In his presentation before the Supreme Court, the U.S. Attorney argued that “[i]‌f the courts of the United States should exercise such a jurisdiction[,] it will amount to a judicial declaration of war.”20 Indeed, he went so far as to argue that the judiciary’s exercise of jurisdiction in a case of this nature “will absorb all the functions of government, and leave nothing for the legislative or executive departments to perform.”21 The Court apparently found these arguments persuasive because it ruled in favor of immunity just one week after argument.22 The Supreme Court concluded that the United States’ consent to immunity for foreign warships could be inferred from the practice of nations—​an “implication” that only “the sovereign power of the nation” could destroy.23 The Court’s reference to the “sovereign power of the nation” appears to have been a reference to the political branches’ exclusive constitutional power over war and reprisals. A judicial decision seizing a French warship almost certainly would have triggered hostilities with France. If the Constitution vested the political branches with the exclusive “sovereign power” to authorize such a seizure and thereby trigger hostilities, then courts would have to treat foreign warships as immune from judicial process until the political branches instructed otherwise. In the course of this analysis, Chief Justice John Marshall emphasized that, “[w]‌ithout doubt, the sovereign of the place is capable of destroying” the immunity suggested by the practice of nations.24 “He may claim and exercise jurisdiction either by employing force, or by subjecting such vessels to the ordinary tribunals.”25 The first method would have required 17. Id. at 119–​20. 18. Id. at 120. 19. Id. at 116. 20. Id. at 126. 21. Id. 22. Id. at 135. 23. Id. at 146. 24. Id. 25. Id.

82

82 T he Tr aditional L aw of Nations & the Constitution

a congressional authorization of force (including reprisals, captures, or even war), and the second would have required a congressional authorization for courts to disregard immunity and adjudicate disputes of this kind. Because the political branches had not clearly taken either course, the Constitution required courts to treat “national ships of war, entering the port of a friendly power open for their reception, … as exempted by the consent of [the sovereign] power from its jurisdiction.”26 A  contrary judicial decision would have usurped the exclusive authority of the political branches to take action that could have provoked armed conflict with France. Significantly, Chief Justice Marshall also rejected counsel’s argument that courts should deny immunity to the vessel on the ground that France’s initial seizure of the vessel violated U.S. rights to neutral use of the high seas under the law of nations. In keeping with the Constitution’s assignment of the reprisal and war powers to Congress, Marshall found “great weight” in the argument “that the sovereign power of the nation is alone competent to avenge wrongs committed by a sovereign, that the questions to which such wrongs give birth are rather questions of policy than of law, [and] that they are for diplomatic, rather than legal discussion.”27 In other words, the Schooner Exchange Court suggested that the Constitution assigned the political branches—​rather than courts—​the responsibility for deciding whether France had violated U.S. rights under the law of nations, and whether and how the United States should hold France accountable for any violations. The Supreme Court’s decision in The Schooner Exchange is notable not only for upholding the Constitution’s allocation of the war and reprisal powers to the political branches, but also for requiring the political branches to express authorization for judicial intervention clearly. Congress had arguably conferred jurisdiction upon the district courts over this action when it vested them with general admiralty jurisdiction in the Judiciary Act of 1789. The Court, however, construed the Act’s general grant not to confer jurisdiction upon district courts over warships. According to the Court, “until [the sovereign] power be exerted in a manner not to be misunderstood, the sovereign cannot be considered as having imparted to the ordinary tribunals a jurisdiction, which it would be a breach of faith to exercise.”28

26. Id. at 145–​46. 27. Id.; see also The Nereide, 13 U.S. (9 Cranch) 388 (1815), discussed infra. 28. The Schooner Exch., 11 U.S. (7 Cranch) at 146 (emphasis added).

  83



The Law of State-State Relations in Federal Courts

83

In other words, because judicial intervention would have amounted to a form of U.S. retaliation against France and in turn invited formal retaliation by France against the United States, the Court refused to assume that Congress had authorized such intervention in the absence of a clear and unmistakable statute to that effect. The Schooner Exchange was not the first case in which the Supreme Court used a clear statement requirement to ensure both that the political branches acted knowingly and intentionally in abrogating the rights of foreign nations, and that courts would not usurp political branch authority by abrogating such rights on their own. Almost two decades earlier, the Court famously employed a similar clear statement requirement in Murray v. The Schooner Charming Betsy.29 During the undeclared Quasi-​War with France, Congress enacted the Non-​Intercourse Act of 1800, prohibiting commercial intercourse between residents of the United States and residents of any French territory.30 Although the Act expressly prohibited Americans from trading with the French territories, it did not spell out its impact on the rights of neutral nations. The Court construed the Act narrowly to avoid violating the rights of neutral nations under the law of state-​state relations. This approach ensured that the judiciary would not usurp the exclusive powers of the political branches to take such provocative action. The case arose from the seizure of an American-​built Danish vessel purchased from an American captain at a Danish island and used by an American-​born Danish burgher to conduct trade with a French island.31 The question before the Court was whether the Non-​ Intercourse Act authorized seizure of the vessel. Under the law of state-​state relations, the seizure would have violated the right of Denmark—​a nation recognized by the United States—​to engage in neutral commerce on the high seas.32 Writing for the Charming Betsy Court, Chief Justice Marshall began by observing that a federal statute “ought never to be construed to violate the law of nations if any other possible construction remains, and consequently can never be construed to violate neutral rights, or to affect neutral commerce, further than is warranted by the law of nations as understood

29. 6 U.S. (2 Cranch) 64 (1804). 30. Non-​Intercourse Act, ch. 10, § 1, 2 Stat. 7, 8 (1800) (expired 1801). 31. Charming Betsy, 6 U.S. (2 Cranch) at 64–​65, 120–​21. 32. Denmark recognized the United States in 1792, and the United States received Denmark’s ambassador in 1801.

84

84 T he Tr aditional L aw of Nations & the Constitution

in this country.”33 He determined that the Non-​Intercourse Act did not plainly express such an intent: “If it was intended that any American vessel sold to a neutral should, in the possession of that neutral, be liable to the commercial disabilities imposed on her while she belonged to citizens of the United States, such extraordinary intent ought to have been plainly expressed.”34 This background reveals an important point about the Marshall Court’s understanding of the source of the Charming Betsy canon. The Court used the canon to uphold the rights of foreign sovereigns under the law of state-​ state relations not because such law had independent mandatory force in U.S. courts, but because construing federal statutes to uphold the rights of foreign sovereigns preserved the political branches’ exclusive constitutional authority to abrogate such rights (and risk retaliation by the affected nation).35 The “neutral rights” to which the Charming Betsy Court referred were part of a nation’s perfect rights under the law of state-​state relations. Because such aspects of the law of state-​state relations were so intimately bound up with recognition and war, the canon functioned to prevent judicial interference with the Constitution’s allocation of powers to the political branches or their exercise. In this sense, the canon was less about the law of nations per se, and more about preserving the constitutional separation of powers.36 The clear statement requirement that the Supreme Court employed in The Schooner Charming Betsy served to uphold the Constitution’s allocation of powers by preventing courts from unilaterally abrogating the rights of a recognized foreign sovereign and thereby contradicting recognition or

33. Charming Betsy, 6 U.S. (2 Cranch) at 118. 34. Id. at 119 (emphasis omitted). 35. This allocation of powers rationale for construing federal statutes not to violate the sovereign rights of foreign nations does not support using the Charming Betsy canon, as some commentators have urged, to ensure federal statutory compliance with other branches of the law of nations—​or modern customary international law. See Ralph G. Steinhardt, The Role of International Law as a Canon of Domestic Statutory Construction, 43 Vand. L. Rev. 1103, 1111 (1990) (urging courts to use the Charming Betsy canon not only to uphold traditional international rules of “jurisdiction and state responsibility,” but also modern international rules that “attempt to regulate matters that historically have been the exclusive subject of domestic legislation”). 36. See Curtis A. Bradley, The Charming Betsy Canon and Separation of Powers: Rethinking the Interpretive Role of International Law, 86 Geo. L.J. 479 (1998) (offering a general separation of powers conception of the Charming Betsy canon).

  85



The Law of State-State Relations in Federal Courts

85

even triggering war. The United States recognized Denmark as a free and independent nation entitled to all rights accompanying that status under the law of state-​state relations. A  judicial decision upholding confiscation of a Danish vessel would have contradicted recognition by denying Denmark the right to neutral use of the high seas that accompanied that status. In addition, a decision of this kind would have given Denmark just cause for war against the United States.37 To be sure, Congress could have overridden the normal incidents of recognition by authorizing interference with Denmark’s neutral rights, and would have been responsible for any adverse consequences. Judicial interference with the sovereign rights of a recognized foreign nation in the absence of congressional authorization, however, would have exceeded the judicial power and usurped the political branches’ constitutional authority. The Charming Betsy canon (like The Schooner Exchange canon) functioned to ensure that the political branches—​rather than courts—​made the “extraordinary” decision to abrogate another nation’s sovereign rights under the law of state-​state relations.38 Two additional decisions by the Marshall Court reflect the Supreme Court’s early attempts to prevent U.S. courts from usurping the constitutional powers of Congress and the President over war and foreign relations. The first, Brown v. United States,39 concerned the captures power, and the second, The Nereide,40 concerned the reprisal and recognition powers. In Brown, the Court considered whether the U.S. Attorney for the District of Massachusetts could lawfully confiscate enemy British property (550 tons of pine timber scheduled to be shipped from the United States to Great Britain) found within the United States when the War of 1812 broke out with England. Congress had declared war against

37.  See 2 Emmerich de Vattel, The Law of Nations bk. III, §§ 111–​12, at 39–​40 (London, J. Newberry et al. 1759) (recognizing the perfect right of a neutral nation to engage in neutral trade). 38. On the other hand, when Congress has clearly indicated its intent to violate the rights of a foreign sovereign under the law of nations—​even if at the risk of war—​the Court has followed the statute as written. See Bas v. Tingy, 4 U.S. (4 Dall.) 37 (1800) (upholding a federal statute enacted during the “Quasi-​War” with France that departed from the law of nations in regulating salvage rights in ships or goods retaken from the enemy). The fact that courts apply clear federal statutes in derogation of the law of nations suggests that courts follow the law of nations out of deference to the constitutional prerogatives of the political branches. 39. 12 U.S. (8 Cranch) 110 (1814). 40. 13 U.S. (9 Cranch) 388 (1815).

86

86 T he Tr aditional L aw of Nations & the Constitution

Britain and authorized the President to issue commissions to privateers to capture British vessels and goods on the high seas, but the declaration said nothing about British property found on land.41 Apparently acting without the President’s knowledge or approval, the U.S. Attorney filed a libel action in federal court seeking to condemn the timber as enemy property.42 In rejecting the legality of the condemnation, Chief Justice Marshall had “no doubt” that the United States had “power” to confiscate the property in question under the law of state-​state relations: “That war gives to the sovereign full right to take the persons and confiscate the property of the enemy wherever found, is conceded.”43 But Marshall rejected the proposition that this principle of the law of nations “constitutes a rule which acts directly upon the thing itself by its own force, and not through the sovereign power.”44 According to the Court, “war is not an absolute confiscation of this property, but simply confers the right of confiscation” upon the sovereign.45 A sovereign’s decision to exercise this right “depends on political considerations which may continually vary.”46 According to the Brown Court, the Constitution gave Congress—​rather than courts or executive officials—​the power to decide whether the United States will confiscate enemy property during war:  “[F]‌rom the structure of our government, proceedings to condemn the property of an enemy found within our territory at the declaration of war, can be sustained only upon the principle that they are instituted in execution of some existing law … .”47 “Like all other questions of policy,” the question whether to confiscate enemy property found within the United States “is proper for the consideration of a department which can modify it at will; not for the consideration of a department which can pursue only the law as it is written. It is proper for the consideration of the legislature, not of the executive or

41. See Act of June 18, 1812, ch. 102, 2 Stat. 755. 42. Brown, 12 U.S. (8 Cranch) at 121–​22. Marshall specifically noted that the U.S. Attorney did not seem to have “made the seizure under any instructions from the President of the United States.” Id. 43. Id. at 122. 44. Id. at 128. 45. Id. at 123. 46. Id. at 128. 47. Id. at 123.

  87



The Law of State-State Relations in Federal Courts

87

judiciary.”48 Thus, “until that [legislative] will shall be expressed, no power of condemnation can exist in the Court.”49 Like previous Marshall Court decisions involving the law of state-​state relations, Brown ultimately rested upon the Constitution’s allocation of powers over war and foreign relations. Under the law of state-​state relations, the United States had the right to confiscate enemy property on land during war. Under the Constitution, however, the decision whether the United States should actually make such confiscations as part of the war effort was for Congress rather than the courts. First, the Constitution gave Congress not only the power to declare war, but also the more specific power to make rules governing captures on land and water. Second, any decision to confiscate British property on land could have led Great Britain to pursue retorsion through reciprocal captures of American property, thereby prolonging or escalating the war. Thus, the Constitution’s allocation of the war and captures powers to Congress prohibited the confiscation in Brown absent clear congressional authorization. The Nereide50 is another well-​known decision of the Marshall Court. Although modern commentators sometimes quote its language out of context, the decision was again firmly rooted in the Constitution’s allocation of powers—​in this case, the allocation of the reprisal power to Congress. Like Brown, this case arose out of the War of 1812. The question presented was whether a federal court should hold a United States privateer liable for violating the neutral rights of Spain by capturing goods belonging to a neutral (Spanish) individual found on an enemy (English) vessel. Neutral use of the high seas was a perfect right of recognized foreign nations under the law of state-​state relations, and federal courts routinely redressed violations of this right in prize cases such as the one before the Court. The privateer nonetheless urged the Court to uphold his capture of Spanish property on the ground that “Spain … would subject American property, under similar circumstances, to confiscation.”51 In effect, he was asking the Court to adopt a policy of judicial retorsion against Spain. 48. Id. at 129. 49. Id. at 123. Although the Brown Court primarily focused on Congress’s power to make captures, the Court possibly could have relied on Congress’s power to declare war as well. Although Congress had declared war, it had not authorized captures of enemy property on land. Thus, a judicial decision authorizing the capture would have usurped Congress’s authority by escalating the war, subjecting American property in England to confiscation, and making peace harder to achieve. 50. 13 U.S. (9 Cranch) 388 (1815). 51. Id. at 422.

88

88 T he Tr aditional L aw of Nations & the Constitution

In rejecting this suggestion, the Supreme Court made plain that the Constitution entrusted the political branches with the exclusive power to decide whether, when, and how to hold another nation and its subjects accountable for violating U.S. rights under the law of nations: [T]‌he Court is decidedly of opinion that reciprocating to the subjects of a nation, or retaliating on them, its unjust proceedings towards our citizens, is a political not a legal measure. It is for the consideration of the government not of its Courts. The degree and the kind of retaliation depend entirely on considerations foreign to this tribunal. It may be the policy of the nation to avenge its wrongs in a manner having no affinity to the injury sustained, or it may be its policy to recede from its full rights and not to avenge them at all. It is not for its Courts to interfere with the proceedings of the nation and to thwart its views. It is not for us to depart from the beaten track prescribed for us, and to tread the devious and intricate path of politics.52 This passage rests on the premise that the Constitution vests the political branches, not the courts, with the power to recognize foreign nations and authorize retorsion, reprisals, or captures against them. In this regard, the Court drew an important distinction between “the government” and “its courts.” As the Court explained: If it be the will of the government to apply to Spain any rule respecting captures which Spain is supposed to apply to us, the government will manifest that will by passing an act for the purpose. Till

52. Id. at 422–​23. These decisions bear some resemblance to the political question doctrine, particularly the idea that courts will not adjudicate cases involving “a textually demonstrable constitutional commitment of the issue to a coordinate political department.” Baker v. Carr, 369 U.S. 186, 217 (1962). Whether one chooses to use modern terminology to characterize these decisions as political question cases or constitutional decisions, however, the essential inquiry remains the same. As Professor Herbert Wechsler has observed, “all the [political question] doctrine can defensibly imply is that the courts are called upon to judge whether the Constitution has committed to another agency of government the autonomous determination of the issue raised, a finding that itself requires an interpretation.” Herbert Wechsler, Toward Neutral Principles of Constitutional Law, 73 Harv. L. Rev. 1, 7–​8 (1959). The principal difference is that the Marshall Court decided cases like The Nereide on the merits rather than characterizing them as “non-​justiciable.”

  89



The Law of State-State Relations in Federal Courts

89

such an act be passed, the Court is bound by the law of nations which is a part of the law of the land.53 As discussed in Chapter  7, modern commentators often quote this concluding language—​“the law of nations which is part of the law of the land”—​as support for the proposition that the law of nations itself somehow constituted a form of supreme federal law. In context, however, this language cannot bear the weight that these commentators would put on it. Judicial application of the law of state-​state relations as it existed at this time unquestionably was “part of”—​indeed a necessary “part of”—​the Constitution’s exclusive allocation of recognition, war, reprisal, and capture powers to the political branches. The Court’s failure to adhere to the law of state-​state relations in The Nereide would have contradicted or usurped the constitutional authority of the political branches to recognize Spain, and to decide whether, when, and how to hold that nation accountable for its violations of U.S. rights. Because the political branches had recognized Spain, American courts were obligated to respect Spain’s sovereign rights, including its right to neutral use of the high seas. Even if Spain had violated U.S. rights, a judicial refusal to respect Spain’s rights would have contradicted recognition. In addition, a judicial decision to override Spain’s neutral rights would have contradicted the Constitution’s allocation of the reprisal power to Congress. This allocation of powers required courts to respect Spain’s neutral rights and leave the political branches to decide whether to abrogate those rights in retaliation for Spain’s violation of U.S. rights. Under these circumstances, the law of state-​state relations was “part of the law of the land” in cases like The Nereide only because the Constitution required courts to apply such law to uphold Spain’s neutral rights absent contrary instructions from the political branches. Understood in context, this statement—​that “the law of nations … is a part of the law of the land”—​applied only to the law of state-​state relations and the way it interacted with the Constitution’s allocation of powers. The Court’s statement did not apply in the same way to other branches of the law of nations, such as the law merchant. As discussed in Chapter 2, nothing in the Constitution’s allocation of powers required courts to apply the law merchant as part of the law of the land in the face of local state law to the contrary. In addition, the Court’s statement in The Nereide did not

53. The Nereide, 13 U.S. (9 Cranch) at 423.

90

90 T he Tr aditional L aw of Nations & the Constitution

encompass modern customary international law, which as explained in later chapters differs in material respects from the law of state-​state relations, because such law did not exist at the time.

II In the early decades of the United States, the vast majority of cases involving the law of state-​state relations were admiralty or prize cases that fell within the federal courts’ admiralty and maritime jurisdiction. Over time, as prize cases dissipated, federal courts had fewer occasions to apply the law of state-​state relations.54 Nonetheless, the law of state-​state relations remained an important ongoing source of law in federal courts. Whereas the nineteenth century cases involving the law of state state-​relations generally fell within the federal courts’ admiralty and maritime jurisdiction, the twentieth century cases—​involving such matters as the act of state doctrine and head of state immunity—​generally fell within the federal courts’ diversity jurisdiction.55 Whatever the basis for jurisdiction, the Supreme Court’s decisions continued to reflect the Constitution’s allocation of powers. For the Court, applying the law of state-​state relations was not an end in and of itself, but rather a means to uphold the Constitution’s exclusive allocation of war and foreign relations powers to Congress and the President. As discussed in Chapter 6, the twentieth century also saw the emergence of a new kind of modern customary international law—​rules that seek to restrict how nations treat their own citizens within their own territory. To date, however, the Supreme Court has not applied such rules to override the traditional sovereign rights of a recognized foreign nation or government without political branch authorization to do so. To the contrary, the Court has invoked general principles of separation of powers in refusing to override the territorial authority of foreign nations recognized by the political branches. Unlike the decisions of the Marshall Court, however, the Court’s more recent decisions have not identified the specific

54.  See Michael D.  Ramsey, Customary International Law in the Supreme Court, 1901–​1945, in International Law in the U.S. Supreme Court: Continuity and Change, supra note 1, 225, at 236 (“[I]‌t is striking, reviewing the period between 1901 and 1945, how few [cases directly applying the law of state-​state relations] there are (especially leaving aside interstate disputes and general maritime cases, which seemed increasingly to fall into their own separate categories.”). 55. As discussed in Chapter 7, certain applications of the law of state-​state relations could support “arising under” jurisdiction as well.

  91



The Law of State-State Relations in Federal Courts

91

political branch powers that judicial enforcement of traditional sovereign rights serves to uphold. Nonetheless, the Court’s general separation of powers approach has continued to uphold the Constitution’s exclusive allocation of recognition, war, reprisal, and foreign relations powers to the political branches.

A The Court’s first major decision of the twentieth century involving the law of nations was The Paquete Habana,56 one of the most cited cases in U.S. history applying such law. Scholars and judges have widely discussed this case because of its iconic statement, echoing The Nereide, that “[i]‌nternational law is part of our law.”57 Commentators often take this statement out of context, however, and read it anachronistically to mean that judges should regard all forms of international law as federal law—​even those that did not yet exist when the Court decided this case. (These include modern rules of customary international law that seek to limit aspects of sovereignty that the law of state-​state relations traditionally protected.) Taken in historical context, however, the case is more plausibly read as simply continuing the Court’s long-​standing practice—​exemplified by Peters and The Nereide—​of upholding the rights of foreign sovereigns under the law of state-​state relations absent instructions from the political branches to do otherwise. In this sense, the sovereign rights of Spain at issue in The Paquete Habana were “part of our law,” but only to the extent necessary to uphold the exclusive constitutional prerogatives of the political branches to conduct war and foreign relations. The Paquete Habana arose during the Spanish-​American War when U.S. naval forces established a blockade near the Spanish colony of Cuba and captured two Spanish fishing vessels attempting to reach Havana. U.S. forces brought the vessels to Florida where the district court, sitting in admiralty, condemned the vessels and cargoes as prizes of war. The question before the Supreme Court was whether “the fishing smacks were subject to capture by the armed vessels of the United States during the recent war.”58 During peacetime, nations had the right to neutral use of the

56. 175 U.S. 677 (1900). 57. Id. at 700. 58. Id. at 686.

92

92 T he Tr aditional L aw of Nations & the Constitution

seas. During hostilities, however, the laws of war (part of the law of state-​ state relations) gave opposing nations the right to capture each other’s ships. Although the law of nations did not traditionally exempt coastal fishing vessels from capture, the Court found that by 1900 an exemption had “gradually ripen[ed] into a rule of international law.”59 The Court applied this new rule to restore the captured Spanish vessels and their cargoes to the original owners. After reviewing the practice of nations (including the United States), the Supreme Court explained in a famous passage that it would follow the law of nations to decide “questions of right” in the absence of any “controlling executive or legislative act or judicial decision” to the contrary.60 According to the Court: International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for their determination. For this purpose, where there is no treaty, and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations; and, as evidence of these, to the works of jurists and commentators, who by years of labor, research and experience, have made themselves peculiarly well acquainted with the subjects of which they treat.61 After reviewing the relevant decisions and commentary in detail, the Court concluded that it was now “an established rule of international law, founded on considerations of humanity … [and] mutual convenience … that coast fishing vessels … are exempt from capture as prize of war.”62 Taken in context, The Paquete Habana is best understood as a continuation of the Supreme Court’s long-​standing practice of upholding the Constitution’s allocation of powers by respecting the rights of foreign sovereigns under the law of state-​state relations. The law of state-​state relations included rules governing the rights of nations to use the high seas during both peacetime and wartime. Traditionally, all enemy ships were

59. Id. 60. Id. at 700. 61. Id. 62. Id. at 708.

  93



The Law of State-State Relations in Federal Courts

93

subject to capture during war. If the Supreme Court was correct that the law of state-​state relations had developed an exception for fishing vessels from the rules of capture, then Spain had the right under such law to engage in coastal fishing, free from capture. When U.S. forces sought to condemn the captured vessels as prizes of war, U.S. courts had only two options. They could condemn the vessels as valid captures in violation of Spain’s rights under the law of state-​state relations, or they could restore the vessels and uphold Spain’s rights under such law. The first option would have risked judicial usurpation of political branch authority by escalating hostilities with Spain and inviting retaliation or retorsion. The second option would have ensured that the political branches made any decision to override Spain’s rights under the law of state-​state relations. The Supreme Court chose the second option and ruled that U.S. courts must respect Spain’s rights under international law. The Court did not, as some commentators suggest, decide that international law applied because such law is somehow universally enforceable as federal law in the United States. To the contrary, the Court upheld Spain’s rights under the international law of state-​state relations as a means of preventing judicial interference with the constitutional authority of the political branches. The sentence that scholars often quote in discussing the role of international law in U.S. courts suggests this understanding—​when considered in full. The sentence reads: “International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for their determination.”63 “Questions of right” between sovereigns arose only under the law of state-​state relations—​the branch of the law of nations that governed war and peace between nations. Like the Marshall Court before it, The Paquete Habana Court felt obligated to respect the rights of foreign sovereigns under the law of state-​state relations because the Constitution allocated war and foreign relations powers exclusively to the political branches. In keeping with this allocation-​of-​powers understanding, the Paquete Habana Court repeatedly observed that the political branches could override Spain’s rights under international law through a “controlling” act. The Court suggested that U.S. courts should apply the rule of international law exempting fishing vessels from capture as a kind of default rule unless

63. Id. at 700 (emphasis added).

94

94 T he Tr aditional L aw of Nations & the Constitution

and until the political branches decided otherwise: “This rule of international law is one which prize courts, administering the law of nations, are bound to take judicial notice of, and to give effect to, in the absence of any treaty or other public act of their own government in relation to the matter.”64 A judicial decision violating the rights of a recognized sovereign such as Spain would have contradicted recognition and risked escalating or prolonging the war between the two nations. Decisions of this kind, under the Court’s analysis, had to be made by Congress and the President rather than the courts.65 If the political branches had made a clear decision to override Spain’s rights in the exercise of their constitutional powers over war and foreign relations, then courts would have had to follow this decision.

B Although prize cases largely receded into history, questions regarding the law of state-​state relations continued to arise in federal courts in the twentieth century. These questions arose in cases involving the rights of recognized foreign nations—​including cases involving diplomatic immunity, the so-​called “act of state” doctrine, and head of state immunity. Prior to Erie, federal courts regarded the law of state-​state relations as general law, and had no need to classify such law as either federal or state law. Under the Swift doctrine, federal courts exercising diversity jurisdiction simply disregarded contrary state court decisions in favor of their own understanding of general law—​including the law of state-​state relations. Erie foreclosed this approach, however, when it declared that “law in the sense in which courts speak of it today does not exist without some definite authority behind it.”66 Erie made clear that federal courts must apply state law to local matters within the scope of state authority (such as torts and contracts). Erie quickly generated the question, however, whether its

64. Id. at 708. 65.  Of course, if Congress and the President clearly decide to violate the rights of a foreign sovereign, then U.S. courts follow their instructions. See Bas v. Tingy, 4 U.S. (4 Dall.) 37 (1800) (upholding a federal statute enacted during the “Quasi-​War” with France that departed from the law of nations in regulating salvage rights in ships or goods retaken from the enemy). 66. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 79 (1938) (quoting Black & White Taxicab & Transfer Co. v. Brown & Yellow Taxicab & Transfer Co., 276 U.S. 518, 533 (1928) (Holmes, J., dissenting)).

  95



The Law of State-State Relations in Federal Courts

95

rejection of general law in favor of state tort and contract law also prohibited federal courts from disregarding state law when necessary to uphold the rights of foreign nations under the law of state-​state relations. Bergman v. De Sieyes, a 1948 diversity case removed from state to federal court on the basis of diversity jurisdiction, raised this very question in the United States Court of Appeals for the Second Circuit.67 Bergman, a New Yorker, sued De Sieyes, a citizen and accredited minister of France, by serving him as he passed through New York en route to his post in Bolivia.68 De Sieyes asserted diplomatic immunity based on traditional principles of the law of state-​state relations.69 The question before the Second Circuit was whether a federal court, sitting in diversity, should apply customary international law or New York state law to resolve the issue of diplomatic immunity. The Second Circuit held that under Erie a federal court should apply state law. Judge Learned Hand wrote for the court that because service occurred while the case was in state court, “the law of New York determines its validity, and, although the courts of that state look to international law as a source of New York law, their interpretation of international law is controlling upon us.”70 After surveying New York decisions and secondary sources, the court concluded that “we are disposed to believe that the courts of New York would today hold that a diplomat in transitu would be entitled to the same immunity as a diplomat in situ.”71 Although the Second Circuit was able to uphold diplomatic immunity on the basis of state law in Bergman, commentators questioned whether Erie actually required application of state law in this context.72 Erie did not 67. 170 F.2d 360 (2d Cir. 1948). 68. Id. at 360–​61. 69. At the time, there was no federal statute or treaty conferring diplomatic immunity in U.S.  courts. Congress subsequently enacted the Diplomatic Relations Act of 1978, which incorporates the Vienna Convention on Diplomatic Relations and confers immunity on diplomats assigned to the United States as well as diplomats in transit. See 22 U.S.C. §§ 254a–​254e (2000). 70. Bergman, 170 F.2d at 361. 71. Id. at 363. 72. See, e.g., Louis Henkin, International Law as Law in the United States, 82 Mich. L. Rev. 1555, 1558–​59 (1984). To be fair, Judge Hand did leave open the possibility that a state’s departure from international law could give rise to a federal question: “Whether an avowed refusal to accept a well-​established doctrine of international law, or a plain misapprehension of it, would present a federal question we need not consider, for neither is present here.” Bergman, 170 F.2d at 361. The court did not reach this question because it found that state law incorporated the customary international law of diplomatic immunity.

96

96 T he Tr aditional L aw of Nations & the Constitution

expressly address the traditional rights of foreign sovereigns under the law of state-​state relations—​a set of rights that federal courts had enforced since the founding to uphold the Constitution’s exclusive allocation of war and foreign relations powers to the political branches. Rather, Erie addressed the application of general law to matters governed by tort and commercial law that fell within the concurrent or exclusive authority of the states. For several reasons, the best reading of Erie—​in light of the original constitutional structure and long-​standing judicial practice both before and after Erie—​is that the Constitution does not require (or permit) federal courts to apply state law if it would curtail the rights of recognized foreign sovereigns under the law of state-​state relations. As discussed in Chapter 2, Erie understood the Constitution to establish that “[e]‌xcept in matters governed by the Federal Constitution or by Acts of Congress, the law to be applied in any case is the law of the State.”73 Because the matters at issue in Swift (commercial transactions) and Erie (torts) were not governed by the Constitution or an act of Congress, the Constitution required federal courts to apply state law. In contrast, the matter at issue in Bergman (the immunity of a foreign ambassador in transit) was ultimately governed by the Constitution. Given the Constitution’s allocation of powers and long-​standing judicial precedent upholding the rights of recognized foreign nations under the law of state-​state relations, the Constitution required federal courts to respect France’s right to diplomatic immunity notwithstanding contrary state law. By exchanging ambassadors with France, the political branches exercised their exclusive constitutional authority to recognize France as a sovereign nation with all of the rights and immunities accompanying that status under the law of state-​state relations. One of those rights was the right to deploy ambassadors with diplomatic immunity, even while in transit. If a U.S.  state could abrogate such immunity, it would have power to override both the Constitution’s allocation of the recognition power to the political branches and their exercise of that power to recognize France (with all of the rights that accompany that status). Accordingly, Erie posed no bar to upholding diplomatic immunity in Bergman under the law of state-​state relations because the Constitution itself required both state and federal courts to respect such immunity.

73. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938).

  97



The Law of State-State Relations in Federal Courts

97

C The Constitution also provides the basis for the Supreme Court’s adherence to the “act of state doctrine” in several post-​Erie cases. This doctrine has deep roots in the traditional right of nations under the law of state-​ state relations to govern within their own territory, and forbids courts of one nation from invalidating acts of a foreign nation taken within its own territory. As Emmerich de Vattel explained, “[o]‌f all the rights that can belong to a nation, sovereignty is, doubtless, the most precious, and that which others ought the most scrupulously to respect, if they would not do it an injury.”74 Thus, according to Vattel, no “foreign power [may] take cognizance of the administration of this sovereign, to set himself up for a judge of his conduct, and to oblige him to alter it.”75 If a sovereign, Vattel continued, “loads his subjects with taxes, and if he treats them with severity, it is a national affair, and no other is called upon to redress it, or to oblige him to follow more wise and equitable maxims.”76 In 1898, the Supreme Court recounted the traditional principles upon which the act of state doctrine was based: Every sovereign State is bound to respect the independence of every other sovereign State, and the courts of one country will not sit in judgment on the acts of the government of another done within its own territory. Redress of grievances by reason of such acts must be obtained through the means open to be availed of by sovereign powers as between themselves.77 Under the act of state doctrine, a U.S. citizen seeking redress for acts of a foreign government taken in its own territory must seek assistance from the political branches rather than the courts. In effect, the doctrine prevents U.S. courts from interfering with the traditional rights of recognized foreign nations to govern within their own territory under the law of state-​ state relations. In this way, the doctrine upholds the constitutional prerogatives of the political branches by preventing courts from either interfering

74. See 1 Vattel, supra note 37, bk. II, § 54, at 138. 75. Id. § 55, at 138. 76. Id. 77. Underhill v. Hernandez, 168 U.S. 250, 252 (1897).

98

98 T he Tr aditional L aw of Nations & the Constitution

with the traditional rights of recognized foreign nations or unilaterally attempting to hold such nations accountable for their misconduct. Two Supreme Court decisions applying the act of state doctrine in the first half of the twentieth century illustrate these points. United States v.  Belmont78 and United States v.  Pink79 arose out of confiscations following the Russian Revolution.80 Although these decisions are often cited for upholding the President’s power to make sole executive agreements, the decisions rested largely on the President’s exercise of the recognition power, which in turn triggered the act of state doctrine. After the Bolshevik Revolution in 1917, the new government nationalized Russian corporations and their property, wherever located.81 Many of these companies did business and held funds abroad, especially in London and New York. When litigation arose prior to 1933, adjudication was often complicated by the fact that the United States continued to recognize the long-​defunct Provisional Russian Government rather than the de facto Soviet government. In 1933, however, President Franklin D.  Roosevelt finally recognized the Soviet government as part of an exchange of letters with Maxim Litvinov, known as the Litvinov Agreement.82 In exchange for recognition by the United States, the Soviet Union “released and assigned to the United States” all amounts due to the Soviet Union from American nationals.83 The Belmont litigation arose when the United States (as assignee of the Soviet Union’s interest) sued August Belmont, a private banker doing business in New York, in federal court to recover money deposited with him by Petrograd Metal Works prior to its nationalization in 1918.84 The lower federal courts dismissed the action because they considered Belmont’s debt

78. 301 U.S. 324 (1937). 79. 315 U.S. 203 (1942). 80. After President Roosevelt recognized the Soviet Union in 1933, the Supreme Court applied the act of state doctrine to prevent courts from examining the validity of the Soviet Union’s prior confiscation of Russian corporations in Russia. See Pink, 315 U.S. 203; Belmont, 301 U.S. 324. For a discussion of these cases, see Bellia & Clark, Law of Nations as Constitutional Law, supra note 9, at 804–​10. 81.  See Belmont, 301 U.S.  at 326; cf. Pink, 315 U.S.  at 210–​11 (describing nationalization of Russian insurance companies). 82. Exch. of Commc’ns Between the President of the U.S. and Maxim B. Litvinov, People’s Commissar for Foreign Affairs of the Union of Soviet Socialist Republics (Nov. 16, 1933), in 28 Am. J. Int’l L. 2, 2–​3 (Supp. 1934). 83. Belmont, 301 U.S. at 326. 84. Id. at 325–​26.

  99



The Law of State-State Relations in Federal Courts

99

to the company to be located in New York and applied New York’s policy against enforcing “confiscatory decrees with respect to property located [in the state] at the date of the decree.”85 The Supreme Court reversed on the ground that “no state policy can prevail against the international compact here involved.”86 Although commentators tend to characterize the Litvinov Agreement as preempting state law, a careful reading of the Court’s opinion reveals that preemption occurred as a result of the President’s decision to recognize the Soviet Union. The Supreme Court explained that “[t]‌he recognition, establishment of diplomatic relations, the assignment, and agreements with respect thereto, were all parts of one transaction, resulting in an international compact between the two governments.”87 The President’s exercise of his power to recognize the Soviet Union was crucial to the Court’s decision. According to the Court, “who is the sovereign of a territory is not a judicial question, but one the determination of which by the political departments conclusively binds the courts; and … recognition by these departments is retroactive and validates all actions and conduct of the government so recognized from the commencement of its existence.”88 In other words, because the Litvinov Agreement included recognition of the Soviet Union, it preempted any state law that contradicted the incidents of recognition. The President’s recognition of the Soviet Union, in turn, triggered the act of state doctrine because recognition traditionally included respect for territorial sovereignty. Recognition thus required U.S.  courts to respect the territorial jurisdiction of the Soviet Union by upholding (even retroactively) the acts of its government taken within its own territory, including, here, the Soviet nationalization of domestic corporations and their assets.89 The Supreme Court dismissed as “irrelevant” the lower courts’ attempt to reject the act of state doctrine on the basis of the location of the corporation’s property.90 In the Court’s view, no state power “can be interposed as

85. United States v. Belmont, 85 F.2d 542, 543 (2d Cir. 1936). 86. Belmont, 301 U.S. at 327. 87. Id. at 327–​28 (citing Oetjen v. Cent. Leather Co., 246 U.S. 297, 303 (1918)). 88. Id. at 330. 89. See id. at 327 (explaining “that the courts of one [sovereign state] will not sit in judgment upon the acts of the government of another, done within its own territory”). 90. Id. at 332.

100

100 T he Tr aditional L aw of Nations & the Constitution

an obstacle to the effective operation of a federal constitutional power”—​in this case, the recognition power.91 The Supreme Court reached the same conclusion a few years later in United States v.  Pink.92 Like Belmont, Pink involved title to assets owned by a Russian corporation operating in New York, and the Supreme Court again held that the President’s recognition of the Soviet Union triggered the act of state doctrine and preempted state law. Although the First Russian Insurance Company was nationalized by the Soviet Union shortly after the Revolution, the company continued to do business in New York through a branch office until 1925 when the New York Superintendent of Insurance took possession of its assets pursuant to a court order.93 After paying all domestic creditors of the New York branch, the Superintendent had a surplus of over one million dollars. After the Litvinov Agreement took effect, the United States (as assignee of the Soviet Union) brought suit in New York state court to recover the surplus. The New  York Court of Appeals affirmed the trial court’s dismissal of the complaint94 on the basis of an earlier decision finding that the property in question “has always been in the custody of the state,” and therefore remained “subject exclusively to the laws of the State.”95 On this view, although the Litvinov Agreement assigned the Soviet Union’s interest in the property to the United States, the assignee had no greater right to the funds than its assignor under state law. The Supreme Court reversed largely in reliance on Belmont and its understanding of the recognition power. In particular, the Court indicated that the President’s recognition of the Soviet Union triggered the act of state doctrine and obligated New York courts to uphold the Soviet Union’s 91. Id. Professor Joseph Dellapenna agrees that Belmont held “that the act of state doctrine, as federal law, displaced any inconsistent state policy.” Joseph W. Dellapenna, Deciphering the Act of State Doctrine, 35 Vill. L. Rev. 1, 19 (1990). Professor Michael Ramsey, by contrast, concludes that the act of state doctrine “does not appear relevant to any issue raised in the case” because the property in question was located in New York when it was confiscated. Michael D. Ramsey, Executive Agreements and the (Non)Treaty Power, 77 N.C. L. Rev. 133, 147 n.52 (1998). Ramsey’s analysis overlooks the fact that the Belmont Court “understood the act of state doctrine to apply not on the basis of the situs of the debt, but on the basis of the situs of the Russian corporation.” Bradford R. Clark, Domesticating Sole Executive Agreements, 93 Va. L. Rev. 1573, 1643 (2007). 92. 315 U.S. 203 (1942). 93. Id. at 211. 94. United States v. Pink, 32 N.E.2d 552, 552 (N.Y. 1940) (per curiam). 95. Moscow Fire Ins. Co. v. Bank of N.Y. & Trust Co., 20 N.E.2d 758, 766, 768 (N.Y. 1939).

  101



The Law of State-State Relations in Federal Courts

101

confiscation of Russian corporations and their assets wherever located. According to Pink, New  York courts violated the act of state doctrine by refusing “to give effect or recognition in New  York to acts of the Soviet Government which the United States by its policy of recognition agreed no longer to question.”96 Moreover, the Court explicitly tied the supremacy of the act of state doctrine over contrary state law to the President’s exercise of the recognition power. According to the Court:  “Recognition [of the Soviet Union] and the Litvinov Assignment were interdependent. We would usurp the executive function if we held that that decision was not final and conclusive in the courts.”97 The Pink Court also made clear that the President’s act of recognition obligated states—​no less than courts—​to uphold the Soviet Union’s confiscation of the property in question. As the Court put it: “The action of New York in this case amounts in substance to a rejection of a part of the policy underlying recognition by this nation of Soviet Russia. Such power is not accorded a State in our constitutional system.”98 At the time the Supreme Court decided Belmont and Pink, nations still generally enjoyed broad authority to govern within their own territory under the law of state-​state relations. It is not surprising, therefore, that the Court understood political branch recognition to require courts and states to respect this authority through strict adherence to the act of state doctrine.99 In the following decades, however, international law 96. Pink, 315 U.S. at 231. 97. Id. at 230. 98. Id. at 233. In seemingly broad language, the Court also stated that “state law must yield when it is inconsistent with, or impairs the policy or provisions of, a treaty or of an international compact or agreement.” Id. at 230–​31. In context, however, this language should be understood to refer to agreements (such as the one at issue in Pink) intertwined with the exercise of the President’s recognition power. 99.  It is worth emphasizing that Belmont and Pink established that the act of state doctrine preempts contrary state law, even though commentators often cite a later case, Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964), as the first decision to establish this proposition. See Curtis A. Bradley & Jack L. Goldsmith, Customary International Law as Federal Common Law:  A  Critique of the Modern Position, 110 Harv. L.  Rev. 815, 859 (1997) (noting that “Sabbatino stated that the act of state doctrine is a rule of federal common law binding on the states”); Curtis A. Bradley, Jack L. Goldsmith & David H. Moore, Sosa, Customary International Law, and the Continuing Relevance of Erie, 120 Harv. L. Rev. 869, 879 (2007) (stating that Sabbatino “held that the act of state doctrine … is a rule of federal common law binding on the states”); Jack L. Goldsmith, Federal Courts, Foreign Affairs, and Federalism, 83 Va. L. Rev. 1617, 1627 (1997) (“The Supreme Court first applied the doctrine [of the federal common law of foreign relations] in Banco Nacional de Cuba v. Sabbatino.”); Jack L. Goldsmith, The New Formalism in United States Foreign Relations Law, 70 U. Colo. L. Rev.

102

102 T he Tr aditional L aw of Nations & the Constitution

began to recognize some limited exceptions to the authority of nations to govern their own citizens within their own territory, stemming in part from the atrocities committed by nations during World War II. In light of these developments, international law itself no longer required nations to apply the act of state doctrine as categorically as they had in the past. Nonetheless, when presented with an opportunity to limit the act of state doctrine in 1964, the Supreme Court chose to adhere to the doctrine in its traditional formulation, explaining that the doctrine reflects “the proper distribution of functions between the judicial and political branches of the Government on matters bearing upon foreign affairs.”100 Banco Nacional de Cuba v.  Sabbatino101 arose from events following the Cuban Revolution of 1959. The United States first recognized Cuba as an independent sovereign in 1898. Following the revolution of 1959, the United States severed diplomatic relations in 1961, but continued to recognize Cuba as an independent nation and maintain a naval base at Guantanamo Bay pursuant to a 1903 agreement. After the new Cuban government nationalized sugar companies located in Cuba but owned in part by American citizens, a dispute arose over who was entitled to the proceeds of subsequent sugar sales—​Cuba or the original owners. Cuba sought payment based on its expropriation of the sugar company, and the original owners responded by alleging that the expropriation violated a norm of customary international law that restricted a nation’s right to confiscate private property, even within its own territory.102 Cuba countered that the act of state doctrine precluded the judiciary from examining the validity of its acts. The Supreme Court sided with Cuba, holding that, as a matter of federal law, courts may not examine the validity of a taking of property within its own territory by a foreign sovereign government, extant and recognized by this country at the time of suit, in the absence of a treaty or other unambiguous agreement regarding controlling legal principles, 1395, 1406 (1999) (suggesting that Sabbatino changed prior understandings by making clear that the act of state doctrine must be treated as preemptive federal law). 100. Banco Nationale de Cuba v. Sabbatino, 376 U.S. 398, 427–​28 (1964). 101. Id. 102. Vattel described the traditional rule governing when a nation could take the property of a foreign citizen or nation in terms of “necessity.” See Vattel, supra note 37, bk. II, § 119, at

  103



The Law of State-State Relations in Federal Courts

103

even if the complaint alleges that the taking violates customary international law.103 The Sabbatino Court ultimately rested its decision on the Constitution. The Court explained that the “act of state doctrine” has “ ‘constitutional’ underpinnings”104 because it “arises out of the basic relationships between branches of government in a system of separation of powers.”105 In reaching this conclusion, the Court first made clear that “the Constitution does not require the act of state doctrine” in the sense that “it does not irrevocably remove from the judiciary the capacity to review the validity of foreign acts of state.”106 The Court went on to explain, however, that the Constitution’s allocation of powers requires courts to apply the doctrine unless and until the political branches decide to abrogate the doctrine in the exercise of their constitutional authority over “matters bearing upon foreign affairs.”107 In other words, the Court understood the Constitution to vest the power to narrow the act of state doctrine exclusively in the political branches of the federal government. Having determined that the act of state doctrine stems from the Constitution’s allocation of powers, the Sabbatino Court stressed that the act of state doctrine is binding on state courts as well as federal courts, and that Erie poses no bar to the application of the doctrine in diversity cases. The Court felt constrained to make it clear that an issue concerned with a basic choice regarding the competence and function of the Judiciary and the National Executive in ordering our relationships with other members of the international community must be treated exclusively as an aspect of federal law. It seems fair to assume that the Court did not have rules like the act of state doctrine in mind when it decided Erie R. Co. v. Tompkins.108

159. In a case of necessity, a nation could take foreign property, but it had an obligation to try to pay just compensation. Id. §§ 119–​121, at 159. 103. Sabbatino, 376 U.S. at 428. 104. Id. at 431. 105. Id. at 423. 106. Id. 107. Id. at 428. 108. Id. at 425.

104

104 T he Tr aditional L aw of Nations & the Constitution

The Court thus distinguished the dispute before it from Erie on the basis of the Constitution’s division of authority between the states and the federal government. Unlike the general tort and commercial law applied under the Swift doctrine and rejected in Erie, the act of state doctrine was not subject to revision by the states. To the contrary, the act of state doctrine applied as a consequence of “the proper distribution of functions between the judicial and political branches of the Government on matters bearing upon foreign affairs.”109 Because the Constitution itself required judicial application of the act of state doctrine, the doctrine constituted “a principle of decision binding on federal and state courts alike.”110 By grounding the act of state doctrine in the Constitution, the Sabbatino Court tied its decision to a long line of cases applying the law of state-​state relations when necessary to uphold the Constitution’s allocation of specific foreign relations powers to the political branches (as opposed to courts or states).111 And by specifying that the doctrine applies only to the acts of a foreign government “extant and recognized by this country at the time of suit,” the Court tied the act of state doctrine (as it had in Belmont and Pink) to the political branches’ exclusive authority to recognize foreign governments. Since the founding, recognition signified that the United States would respect a foreign state’s authority to govern within its own territory under the law of nations. Under Articles I  and II, the political branches have both the power to recognize a foreign state as an independent sovereign and the power to override a foreign state’s traditional sovereign authority in the exercise of their powers to issue reprisals, authorize captures, make war, and otherwise hold foreign nations accountable for violating U.S. rights. The act of state doctrine, as traditionally applied, ensured that courts would not take it upon themselves to exercise these powers absent clear authorization from the political branches. In other words, the act of state doctrine historically served to uphold the Constitution’s allocation of certain exclusive powers to the political branches of the federal government—​namely the recognition power and the power to hold other nations accountable for their misconduct.112 109. Id. at 427–​28. 110. Id. at 427. 111. Id. at 428 (emphasis added). 112. The act of state doctrine also historically ensured that courts would not unilaterally give a foreign nation just cause for war by violating its perfect right to govern its own citizens within its own territory.

  105



The Law of State-State Relations in Federal Courts

105

That said, the reasons that the Sabbatino Court provided for applying the act of state doctrine were not as specific and straightforward as those that the Marshall Court gave for upholding the rights of foreign sovereigns under the law of state-​state relations. Over time, certain historical developments obscured the precise constitutional reasons why courts traditionally respected the sovereign rights of recognized foreign nations. In the nineteenth and early twentieth centuries, the law of state-​state relations broadly protected the authority of nations to govern their own citizens within their own territory. Accordingly, the Constitution’s allocation of exclusive power to the political branches to recognize foreign nations and hold them accountable for their misconduct provided a clear reason for courts to respect the territorial jurisdiction of recognized nations through the act of state doctrine. By 1964, however, international law had begun to incorporate limited exceptions to territorial sovereignty. Moreover, by this time interference with territorial jurisdiction of another nation was no longer considered, in itself, just cause for war. The Sabbatino Court thus acknowledged that “international law does not require application of the [act of state] doctrine,” and, indeed, that “[m]‌ost of the countries rendering decisions on the subject fail to follow the rule rigidly.”113 Nonetheless, the Sabbatino Court refused to abandon—​ or even modify—​the act of state doctrine. Rather, the Court read the Constitution to require U.S.  courts to continue to apply the act of state doctrine categorically in its “traditional formulation.”114 According to that formulation, U.S. courts may “not examine the validity of a taking of property within its own territory by a foreign sovereign government, extant and recognized by this country at the time of suit, … even if the complaint alleges that the taking violates customary international law.”115 This last point is significant. It reflects both the Court’s understanding of the constitutional source of the act of state doctrine and the Court’s long-​standing refusal to hold foreign nations accountable for violations of customary international law without political branch authorization to do so. As explained, the original owners of the sugar companies had urged the Sabbatino Court to recognize an exception to the act of state doctrine on the ground that uncompensated takings by foreign sovereigns violated customary international law. The Court rejected the invitation out of 113. Sabbatino, 376 U.S. at 421. 114. Id. at 401. 115. Id. at 428.

106

106 T he Tr aditional L aw of Nations & the Constitution

hand without even attempting to ascertain the validity or existence of this norm.116 In so doing, the Court observed “that United States courts apply international law as part of our own in appropriate circumstances.”117 In Sabbatino, the Court determined that it would not be appropriate to apply the rule of customary international law that the owner advanced against the actions of a foreign state. The act of state doctrine precluded the Court from examining the acts of a foreign government taken in its own territory. In its analysis, the Court did not attempt to define or catalog what it meant by the “appropriate circumstances” in which U.S. courts may apply customary international law as a rule of decision. But the reasoning the Court employed—​and the citations it included—​were consistent with, first, those cases in which the Court applied the law of state-​state relations to uphold the rights of recognized foreign nations and, second, those cases in which the Court rejected attempts to hold such nations accountable for alleged violations of U.S. rights. In saying “that United States courts apply international law as part of our own in appropriate circumstances,” the Sabbatino Court cited The Nereide,118 The Paquete Habana,119 and a case upholding foreign rights under a treaty of the United States.120 These citations are instructive. As noted, the Paquete Habana Court treated international law as “part of our law” in order to decide “questions of right” under the law of state-​state relations—​ specifically, the right of Spain’s ships to engage in coastal fishing without fear of capture.121 Moreover, in both The Nereide and The Paquete Habana, the Court applied the law of nations to uphold the rights of foreign sovereigns under the law of state-​state relations, thereby respecting the political branches’ exclusive constitutional powers to recognize foreign sovereigns, and decide whether to retaliate or make war against them. Sabbatino involved a very different request. The original owners of the sugar companies asked the Court to apply a rule of customary international 116.  See generally Paul B. Stephan, Disaggregating Customary International Law, 21 Duke J. Comp. & Int’l L. 191, 198 (2010) (explaining that “Sabbatino generally instructed the judiciary not to assume a leading role in establishing principles of international law”). 117. Sabbatino, 376 U.S. at 423 (emphasis added). 118. 13 U.S. (9 Cranch) 388 (1815). 119. 175 U.S. 677 (1900). 120. See Ware v. Hylton, 3 U.S. (3 Dall.) 199 (1796) (applying the Paris Peace Treaty of 1783 as federal law). 121. The Paquete Habana, 175 U.S. at 700.

  107



The Law of State-State Relations in Federal Courts

107

law to limit a nation’s traditional sovereign authority within its own territory in order to redress its alleged misconduct. A  similar request was made in United States v.  Peters122 when the original ship owner claimed that France’s violation of U.S. rights under the law of state-​state relations gave the Court license to limit France’s territorial right to adjudicate prize cases with finality. As explained, the Peters Court firmly rejected this argument and characterized the district court proceedings as “in contempt of the government of the United States, against the laws of nations.”123 The Sabbatino Court likewise invoked separation of powers to reject the application of customary international law to limit the traditional territorial rights of Cuba or otherwise hold it accountable for its alleged violation of such law. In other words, the Court found that Sabbatino did not present “appropriate circumstances” for applying international law “as part of our law.” To the contrary, the Court held that the act of state doctrine—​supported by the Constitution’s allocation of powers—​precluded U.S.  courts from examining the validity of Cuba’s actions even if they violated customary international law. The effect of the Court’s holding was both to uphold Cuba’s traditional territorial authority and to avoid any attempt to hold Cuba accountable for its misconduct without prior authorization from the political branches. The Sabbatino Court invoked general principles of separation of powers by emphasizing that the act of state doctrine avoids “the possibility of conflict between the Judicial and Executive Branches.”124 The Court explained that judicial decisions examining acts of a foreign nation in its own territory would, if the acts involved were declared invalid, often be likely to give offense to the expropriating country; since the concept of territorial sovereignty is so deep seated, any state may resent the refusal of the courts of another sovereign to accord validity to acts within its territorial borders. Piecemeal dispositions of this sort involving the probability of affront to another state could seriously interfere with negotiations being carried on by the Executive Branch and might prevent or render less favorable the terms of an agreement that

122. 3 U.S. (3 Dall.) 121 (1795). 123. Id. at 131 (emphasis omitted). 124. Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 433 (1964).

108

108 T he Tr aditional L aw of Nations & the Constitution

could otherwise be reached. Relations with third countries which have engaged in similar expropriations would not be immune from effect.125 Thus, the act of state doctrine reflects the judiciary’s “strong sense … that its engagement in the task of passing on the validity of foreign acts of state may hinder rather than further this country’s pursuit of goals both for itself and for the community of nations as a whole.”126 For this reason, the doctrine implements “a basic choice regarding the competence and function of the Judiciary and the National Executive in ordering our relationships with other members of the international community.”127 Although the Sabbatino Court concluded that the act of state doctrine has “constitutional underpinnings,” the Court did not attempt to ground its decision in any specific constitutional provisions. Instead, the Court arguably relied on “a freestanding separation of powers doctrine,”128 supported by federal interests akin to those supporting the application of federal law to “water apportionment or boundary disputes.”129 The Sabbatino Court, however, could have tied its decision to apply the act of state doctrine more explicitly to one or more specific constitutional provisions. First, the Sabbatino Court could have placed greater reliance on the Constitution’s exclusive allocation of the recognition power to the political branches, as it did in Belmont and Pink. Indeed, the Court would later describe Sabbatino’s reasoning in just these terms. In Zivotofsky v. Kerry, the Court explained in 2015 that “[l]‌egal consequences follow formal recognition,”130 and that “[b]ecause the Executive had recognized the Cuban Government, the [Sabbatino] Court held that it should be treated as a sovereign and could benefit from the act of state doctrine.”131 This reading of

125. Id. at 431–​32. 126. Id. at 423. 127. Id. at 425. 128. John F. Manning, Separation of Powers as Ordinary Interpretation, 124 Harv. L. Rev. 1939, 1944 (2011). 129. Sabbatino, 376 U.S. at 427; see also id. at 427 n.25 (“Various constitutional and statutory provisions indirectly support this determination … by reflecting a concern for uniformity in this country’s dealings with foreign nations and indicating a desire to give matters of international significance to the jurisdiction of federal institutions.”). 130. 135 S. Ct. 2076, 2084 (2015). 131. Id. at 2089.

  109



The Law of State-State Relations in Federal Courts

109

Sabbatino suggests that once the United States recognizes a foreign nation, that nation enjoys all of the sovereign rights that recognized nations traditionally have enjoyed under the law of state-​state relations. On this understanding of the recognition power, only the political branches, not the courts or the states, may decide whether and when to override the traditional sovereign rights signified by recognition. This reading supports Sabbatino’s holding that courts (and states) must adhere to the act of state doctrine even if customary international law now recognizes an exception to territorial sovereignty. Although the Supreme Court has characterized Sabbatino as resting on the recognition power, that characterization requires more explanation than the Court gave in either Sabbatino or subsequent decisions. By 1964, as explained, the law of state-​state relations recognized important exceptions to territorial sovereignty. Thus, when the Court decided Sabbatino, recognition did not necessarily signify respect for traditional notions of territorial sovereignty as a matter of customary international law. There are two possible reasons the Court did not regard this change as dispositive in Sabbatino. The United States’ recognition of Cuba might require judicial application of the act of state doctrine because the original recognition occurred at a time (1898) when the law of state-​state relations did broadly protect territorial sovereignty, and subsequent changes in the law of state-​state relations could not dilute the effect of recognition once conferred. Alternatively, recognition even today might require judicial adherence to the act of state doctrine because the meaning of recognition under the Constitution was fixed in 1789. On this theory, the political branches may abrogate the act of state doctrine, but the judiciary may not do so on its own. The Court has not indicated which, if either, of these two theories supported Sabbatino’s decision that recognition requires judicial adherence to the act of state doctrine in its traditional formulation. Apart from recognition, Sabbatino suggests—​ but does not fully develop—​an additional constitutional rationale for requiring courts and states to adhere to the act of state doctrine. Several constitutional provisions allocated exclusive power to Congress and the President to hold foreign nations accountable for any violations of U.S. rights under the law of nations. The Constitution gave the President power to espouse and settle claims on behalf of U.S.  citizens through the conduct of diplomacy. In addition, the Constitution gave Congress the power to make retorsions, authorize reprisals and captures, or pursue war in order to seek satisfaction for the misconduct of other nations or their citizens toward the

110

110 T he Tr aditional L aw of Nations & the Constitution

United States or its citizens. The Constitution’s allocation of these powers to the political branches suggests that courts should refrain from using judicial proceedings to hold foreign nations accountable for their misconduct unless and until the political branches instruct them to do so. The Sabbatino Court could have employed this rationale and drawn support for it from several Marshall Court decisions—​such as Peters, The Schooner Exchange, and The Nereide. These decisions refused to provide redress for the misconduct of foreign governments—​even if they violated the law of nations—​on the ground that the Constitution gives the political branches the exclusive authority to decide whether, when, and how to hold nations accountable for such misconduct. In The Nereide, as explained, a U.S.  privateer argued that U.S.  courts should not hold him liable for capturing goods in violation of Spain’s neutral rights because “Spain … would subject American property, under similar circumstances, to confiscation.”132 The Court rejected this request for a kind of judicial retorsion on the ground that “reciprocating to the subjects of a nation, or retaliating on them, its unjust proceedings towards our citizens, is a political not a legal measure. It is for the consideration of the government not of its Courts.”133 In the same way, the Sabbatino Court could have invoked the Constitution’s exclusive allocation of reprisal, capture, and war powers to the political branches to support its refusal to invalidate Cuba’s title to goods that it unjustly (or illegally) expropriated, thereby leaving to Congress and the President the “political” decision whether to hold Cuba accountable. Although the Sabbatino Court did not make these arguments expressly, it did make two arguments along these lines. First, the original owners urged the Court to apply “reciprocity of treatment” and deny Cuba access to U.S. courts on the ground that “Cuba … does not permit [U.S.] nationals … to obtain relief in its courts.”134 The Court declined to embrace “reciprocity of treatment” in this case because it considered this course to be “sensitive politically” and capable of causing “embarrassment to the Executive Branch in handling foreign relations.”135 The Court signaled that the political branches have ample means at their disposal to manage

132. 13 U.S. (9 Cranch) 388, 422 (1815). 133. Id. 134. Sabbatino, 376 U.S. at 408, 411. 135. Id. at 411–​12.

  111



The Law of State-State Relations in Federal Courts

111

U.S. relations with Cuba. “The freezing of Cuban assets exemplifies the capacity of the political branches to assure, through a variety of techniques … that the national interest is protected against a country which is thought to be improperly denying the rights of United States citizens.”136 Because “none of the acts of our Government have been aimed at closing the courts of this country to Cuba,” the Court declined to get out in front of the political branches by imposing that restriction.137 Second, in defending its holding “that the act of state doctrine is applicable even if international law has been violated,”138 the Court explained that its approach was necessary to avoid “the possibility of conflict between the Judicial and Executive Branches” regarding a foreign nation’s violation of international law.139 The Court noted that the executive has various means at its disposal “to assure that United States citizens who are harmed are compensated fairly,” including diplomacy and “economic and political sanctions.”140 Judicial decisions declaring acts of state invalid would “be likely to give offense to the expropriating country,” and “could seriously interfere with negotiations being carried on by the Executive Branch.”141 For these reasons, the Court found the executive to be better suited than the judiciary to hold foreign nations accountable for their violations of international law. The Sabbatino Court’s understanding that the Constitution gave the political branches—​rather than courts or states—​the power to redress wrongs committed by recognized nations played out in practice after the Court issued its decision. Soon after the decision, Congress and the President enacted legislation abrogating the act of state doctrine in cases like Sabbatino.142 Indeed, the judiciary applied the statute retroactively on remand in Sabbatino to defeat Cuba’s claim to the proceeds from the expropriated sugar.143 Thus, in keeping with the Court’s view that the act of 136. Id. 137. Id. at 411. 138. Id. at 431. 139. Id. at 433. 140. Id. at 431. 141. Id. at 432. 142.  See Foreign Assistance Act of 1964 (Hickenlooper Amendment), Pub. L.  No. 88-​633, §§ 301(d)(4), 620(e)(2), 78 Stat. 1009, 1013 (codified as amended at 22 U.S.C. § 2370(e)(2) (2000)). 143. See Banco Nacional de Cuba v. Farr, 383 F.2d 166, 178 (2d Cir. 1967).

112

112 T he Tr aditional L aw of Nations & the Constitution

state doctrine is “a consequence of domestic separation of powers,”144 the political branches—​rather than the courts—​ultimately made the decision to override Cuba’s territorial sovereignty in retaliation for its unjust treatment of Americans. Sabbatino highlights two important points about the Court’s decisions applying the law of state-​state relations throughout U.S. history. First, the Court has repeatedly applied traditional principles drawn from the law of state-​state relations to uphold the rights of recognized foreign nations. Second, in the absence of clear instructions from the political branches to do so, the Court has not applied the law of state-​state relations or customary international law to hold a recognized foreign nation accountable for its misconduct. From the founding to the present—​as demonstrated by Peters, The Schooner Exchange, The Nereide, and Sabbatino—​the Court has understood the Constitution to vest the political branches with exclusive authority to decide whether, when, and how to hold a foreign nation accountable for any violation of international law. Since the founding, the Supreme Court has upheld the rights of recognized foreign sovereigns under the law of state-​state relations and refrained from holding foreign sovereigns accountable for violating U.S.  rights. In certain cases—​ especially early ones—​ the Court explained that the Constitution’s exclusive allocation of powers to the political branches over recognition, the means of diplomacy, reprisals, captures, and war required courts to follow this practice. In other cases, the Court relied on more general notions of separation of powers to justify this approach. In all of these cases, however, the Court’s use of the law of state-​state relations has served to uphold the Constitution’s allocation of powers.

144. W.S. Kirkpatrick & Co. v. Envtl. Tectonics Corp., 493 U.S. 400, 404 (1990).

  113

5

The Law Maritime and the Constitution

The third branch of the law of nations known to the founders was the law maritime. At the time of the founding, the law maritime was applied by specialized courts in England and America. The law maritime encompassed both public matters governed by the law of state-​state relations (such as prize cases) and private transactions governed by general maritime law (such as maritime commerce). As discussed in Chapters 3 and 4, the law of state-​state relations governed nations’ use of the high seas, including the rights and obligations of belligerent and neutral nations. As applied to private matters, the law maritime referred to a set of rules that governed ordinary transactions relating to or arising on the high seas. In this respect, the law maritime provided a body of general law comparable to—​and sometimes overlapping with—​the law merchant for cases within the jurisdiction of admiralty courts. As Justice Joseph Story explained, admiralty jurisdiction was “divisible into two great branches, one embracing captures, and questions of prize, arising jure belli; the other embracing acts, torts, and injuries strictly of civil cognizance, independent of belligerent operations.”1 Admiralty courts were denominated “prize courts” when

1. Joseph Story, Commentaries on the Constitution of the United States § 864 (Ronald D. Rotunda & John E. Nowak eds., Carolina Acad. Press 1987) (1833). See also James Kent, Lecture 42: Of the History of Maritime Law, in 3 Commentaries on American Law 1, 2 (3d ed., New York, E.B. Clayton & James Van Norden 1836) (“In treating of this law, we refer to its pacific character as the law of commerce and navigation in time of peace. The respective rights of belligerents and neutrals in time of war constitute the code of prize law, and that forms a distinct subject of inquiry … .”). The Law of Nations and the United States Constitution. Anthony J. Bellia Jr. and Bradford R. Clark. © Oxford University Press 2017. Published 2017 by Oxford University Press.

114

114 T he Tr aditional L aw of Nations & the Constitution

hearing questions of the former sort and “instance courts” when hearing claims of the latter description.2 The Constitution authorized federal courts to handle both kinds of cases by extending the federal judicial power “to all Cases of admiralty and maritime Jurisdiction.”3 This jurisdiction encompassed both cases governed by private maritime law and cases governed by the law of state-​state relations. As Justice William Johnson put it, “[i]‌n its ordinary jurisdiction, the admiralty takes cognizance of mere questions of meum and tuum arising between individuals; its extraordinary or prize jurisdiction is vested in it for the purpose of revising the acts of the sovereign himself performed through the agency of his officers or subjects.”4 As discussed in Chapters 3 and 4, Article III enabled federal courts to adjudicate prize cases under the law of state-​state relations. Prize cases were especially important to the peace and security of the new nation because the failure to resolve them properly would have violated the sovereign rights of foreign nations and given them just cause to retaliate against the United States, including by waging war. For the reasons previously discussed, courts upheld the neutral rights of foreign sovereigns in their use of the high seas in order to respect the Constitution’s allocation of war, recognition, and foreign relations powers to the political branches. Similarly, courts declined to hold foreign nations accountable for their violations of U.S.  rights under the law of state-​state relations because the Constitution assigned decisions of this kind to the political branches. Cases governed by the private law maritime also were important to the national interests of the United States, but they did not directly implicate war and foreign relations. Fair and impartial adjudication of cases governed by the private law maritime was necessary to promote commerce and mutually-​beneficial relations with other nations. Originally, federal courts applied the private law maritime in the exercise of their admiralty jurisdiction in much the same way that they applied the law merchant in the exercise of their diversity jurisdiction—​as a form of general law over which they exercised independent judgment. In the twentieth century,

2. See Rose v. Himely, 8 U.S. (4 Cranch) 241, 282–​83 (1808). 3. U.S. Const. art. III, § 2. 4. Rose, 8 U.S. (4 Cranch) at 282 (Johnson, J., dissenting).

  115



The Law Maritime and the Constitution

115

however, the Supreme Court came to differentiate the status of the law merchant from the status of the law maritime under the Constitution. In Erie, the Court interpreted the Constitution to require federal courts—​ in the absence of a controlling provision of the Constitution or an act of Congress—​to apply state law to local matters that fall within the states’ regulatory authority, such as commercial transactions and torts.5 In Southern Pacific Co. v.  Jensen,6 by contrast, the Court held that the Constitution’s grant of admiralty and maritime jurisdiction gave federal courts power to apply general maritime law as a form of preemptive federal common law notwithstanding contrary state law. In addition to granting federal courts jurisdiction over admiralty and maritime cases, the Constitution granted Congress several substantive powers over matters traditionally subject to the law maritime. Regarding prize and other public matters subject to the law of state-​ state relations, the Constitution gave Congress power to define and punish piracy and offenses against the law of nations, to declare war, to grant letters of marque and reprisal, and to make rules governing captures on land and water. Regarding matters governed by the private law maritime, the Constitution granted Congress power to regulate commerce both among the several states and with foreign nations. At the founding, maritime commerce—​both interstate and international—​represented a large proportion of America’s economic activity. By both authorizing Congress to regulate such commerce and permitting federal courts to adjudicate maritime disputes, the Constitution sought to establish a stable legal environment—​free from state bias or discrimination—​for merchants who conducted commerce on the high seas. The story of maritime law in the United States is inextricably bound up with both the scope of the federal courts’ jurisdiction over admiralty and maritime cases and the nature and source of the law to be applied in such cases. With some exceptions, federal admiralty courts initially adhered to the traditional constraints on admiralty jurisdiction established in England—​ including the so-​ called tidewater doctrine. This doctrine prohibited admiralty courts from exercising jurisdiction over disputes arising on inland waterways beyond the ebb and flow of the tide. In 1845, however, Congress expanded the federal courts’ admiralty 5. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938). 6. 244 U.S. 205 (1917).

116

116 T he Tr aditional L aw of Nations & the Constitution

jurisdiction to the Great Lakes and connecting navigable waterways. In 1851, the Supreme Court upheld this statute, holding that the admiralty and maritime jurisdiction of federal courts under Article III extends to all navigable waters of the United States, not just those within the ebb and flow of the tide. This development enabled federal courts to exercise admiralty and maritime jurisdiction over many cases previously within the exclusive jurisdiction of state common law courts. This shift in adjudication from state common law courts to federal admiralty courts changed not only the forum (and eliminated the parties’ right to trial by jury), but also the source of law governing the dispute. Such cases were now governed by general maritime law (and later federal common law) rather than by state common law. This expansion of the federal courts’ admiralty and maritime jurisdiction coincided with the federal courts’ expansion of general law under the Swift doctrine. In both realms, the law to be applied in a particular case often came to differ depending on whether a state or federal court heard the case. In diversity cases, the Supreme Court famously resolved this disparity by requiring federal courts—​in the absence of an applicable federal statute or constitutional provision—​to abandon general law and apply substantive state law to matters over which the state had regulatory authority. In admiralty and maritime cases, however, the Court took the opposite approach. Two decades before Erie, the Jensen Court held not only that federal courts may continue to apply general maritime law, but also that general maritime law generally preempts contrary state law. The Jensen Court offered a unique justification for this approach to the law maritime that did not apply to either the law of state-​state relations or the law merchant. According to the Court, Article III’s grant of admiralty and maritime jurisdiction to federal courts incorporates maritime law as a form of federal law. This reasoning was inapplicable to cases involving the law merchant and to non-​maritime cases governed by the law of state-​state relations. Federal courts adjudicated those cases under different heads of Article III jurisdiction, and the Court has never understood those heads of jurisdiction to incorporate other branches of the law of nations as federal law. This chapter traces the history of the law maritime in U.S. courts—​ including its reconceptualization as federal common law in the twentieth century—​and explains that the Supreme Court has treated this branch of the law of nations differently than it has treated the law merchant and the law of state-​state relations.

  117



The Law Maritime and the Constitution

117

I William Blackstone described the law maritime as one of the three principal branches of the law of nations.7 The law maritime applied to a host of matters arising on or relating to the high seas. Such matters fell into two general, but distinct, categories. First, this branch of the law of nations applied to disputes involving state-​state relations, such as “disputes relating to prizes, to shipwrecks, to hostages, and ransom bills.”8 In this regard, the law maritime was part of the larger law of state-​state relations. Second, the law maritime applied to private commercial disputes and certain torts arising on or relating to the high seas. As applied to commercial questions, the law maritime was a kind of law merchant for the sea. It applied, as Blackstone described it, “in all marine causes, relating to freight, average, demurrage, insurance, bottomry, and others of a similar nature.”9 In England, a separate set of admiralty courts generally exercised jurisdiction over cases arising on or relating to the high seas. In doing so, they developed a body of general law derived from principles of “civil law” and “other marine laws”—​“the whole being connected, altered, and amended by acts of parliament and common usage.”10 As a whole, this “body of jurisprudence” owed “it[s]‌authority only to it[s] reception [in England] by consent of the crown and people.”11 Under Blackstone’s description, the law maritime was potentially broad enough to apply to some matters that the common law might also govern. For this reason, England had a long history of jurisdictional disputes between admiralty and common law courts because both sets of courts understood their respective jurisdictions to be mutually exclusive. To understand the Constitution’s grant of admiralty and maritime jurisdiction, it is useful to review the long history of jurisdictional conflicts in England and how English courts had resolved these conflicts by the time of the founding. England established separate admiralty courts in the mid-​1300s.12 As Justice Story recounted, “at a very early period, the admiralty had cognizance 7. 4 William Blackstone, Commentaries *67. 8. Id. 9. Id. 10. 3 id. at *108. 11. Id. 12. See Gerard J. Mangone, United States Admiralty Law 14 (1997).

118

118 T he Tr aditional L aw of Nations & the Constitution

of all questions of prize; of torts and offences, as well in ports within the ebb and flow of the tide, as upon the high seas; of maritime contracts and navigation; and also the peculiar custody of the rights, prerogatives, and authorities of the crown, in the British seas.”13 Almost immediately, however, conflicts arose between these early admiralty courts and their common law counterparts over the scope of their respective jurisdictions. Two statutes attempted to resolve these conflicts during the reign of Richard II by dividing responsibility on the basis of whether the case arose on land or at sea. The first statute, enacted in 1389, forbade admirals and their deputies to “meddle from henceforth of anything done within the realm, but only of a thing done upon the sea.”14 The second statute, enacted in 1391, generally provided that the common law courts rather than the admiralty courts would have jurisdiction over “all such Manner of Contracts, Pleas, and Quarrels, and all other Things rising within the Bodies of Counties, as well by Land as by Water, and also of Wreck of the Sea.”15 The statute also contained several exceptions (one of which is discussed below because it bears on the development of admiralty and maritime jurisdiction in America). Over the ensuing centuries, English admiralty and common law courts contested the meaning of these statutes, which were central to determining the precise jurisdiction of both sets of courts.16 These statutes drew a basic distinction between things arising on the high seas and “Things rising within the Bodies of Counties” whether “by Land” or “by Water.” In keeping with this distinction, common law judges readily acknowledged that “the admirall hath, and ought to have jurisdiction” over “contracts, pleas, and querels made upon the sea, or any part thereof, which is not within any county (from whence no trial can be had by twelve men).”17 Common law courts, however, generally claimed exclusive jurisdiction over controversies arising in counties. Moreover, common 13. DeLovio v. Boit, 7 F. Cas. 418, 419 (C.C.D. Mass. 1815) (No. 3,776) (Story, J.). 14. 1389, 13 Rich. 2 c. 5 (Eng.). 15. 1391, 15 Rich. 2 c. 3 (Eng.). 16. A third statute, enacted in 1400, gave defendants wrongfully sued in admiralty a right to sue at common law for double damages. 1400, 2 Hen. 4 c. 11 (Eng.). 17.  Sir Edward Coke, The Fourth Part of the Institutes of the Laws of England: Concerning the Jurisdiction of Courts 134 (E. & R. Brooke eds., London W. Lee & D. Pakeman 1797). The water line marked the jurisdictional boundary between the admiralty and common law courts in England, where the admiralty had exclusive jurisdiction below the low-​water mark and common law courts had exclusive jurisdiction above the high-​water mark. See M.J. Prichard & D.E.C. Yale, Introduction, in Hale & Fleetwood on Admiralty Jurisdiction, at clxxi (M.J. Prichard & D.E.C. Yale eds., 1993). Jurisdiction between the

  119



The Law Maritime and the Constitution

119

law courts considered ports and havens, as well as rivers and creeks, to be within the bodies of counties and not part of the sea.18 Common law courts thus claimed exclusive jurisdiction over disputes arising in such locations. The 1391 statute included an important exception to the jurisdiction of common law courts for cases of “Death of a Man, and of a Maihem done in great Ships, being and hovering in the main Stream of great Rivers, only beneath the Bridges of the same Rivers nigh to the Sea, and in none other Places of the same Rivers.”19 Such cases, the statute provided, could be tried in admiralty. This exception was consistent with the long-​standing tidewater doctrine developed in England. Under this doctrine, the admiralty could exercise jurisdiction beyond the high seas to redress torts and injuries that occurred on waterways subject to the ebb and flow of the tide—​such as bays, harbors, and mouths of rivers. Notwithstanding these early statutes, admiralty and common law courts continued to contest their respective jurisdictions until the end of the eighteenth century.20 The admiralty courts claimed that their jurisdiction extended to “all maritime contracts, whether executed at home or abroad, and to all torts, injuries, and offences, on the high seas, and in ports, and havens, as far as the ebb and flow of the tide.”21 The common law courts, by contrast, sought to limit admiralty jurisdiction to maritime contracts made and to be performed entirely at sea or abroad, and torts occurring on

high-​and low-​water marks was less clear, but there are indications that the admiralty had exclusive jurisdiction when the shore was covered with water, and the common law had exclusive jurisdiction when the water receded. Id.; Wyndham Beawes, Lex Mercatoria Rediviva: or The Merchant’s Directory 246 (2d ed., London R Baldwin & S. Crowder 1761) (“[B]‌etween High and Low-​Water Mark, [the Admiral] and the Common Law have [ jurisdiction] by Turns, one upon the Water, and the other upon the Land.”) (emphasis omitted). 18. See John Comyns, A Digest of the Laws of England 394 (4th ed., Dublin, Luke White 1793) (“As, within any port or haven; for though it be within the flux and reflux of the sea, and below the first bridges, yet the port is within the body of the county.”); Beawes, supra note 17, at 141 (“All the Ports and Havens in England are infra corpus comitatus, and that the Court of Admiralty cannot hold Jurisdiction of any Thing done in them.”); id. at 246 (admiralty tended to have jurisdiction “in great Rivers, beneath the Bridges thereof near the Sea,” but where “the Land is seen on both Sides … the County may take Cognizance of it; and where a County may enquire the Lord Admiral has no Jurisdiction”); Coke, supra note 17, at 136–​39 (characterizing rivers, and particularly the river Thames, as within the jurisdiction of the common law because it is within the body of a county). 19. 1391, 15 Rich. 2 c. 3 (Eng.). 20. See generally David W. Robertson, Admiralty and Federalism: History and Analysis of Problems of Federal-​State Relations in the Maritime Law of the United States 35–​64 (1970) (describing rivalry between these courts). 21. DeLovio v. Boit, 7 F. Cas. 418, 441 (C.C.D. Mass. 1815) (No. 3,776) (Story, J.).

120

120 T he Tr aditional L aw of Nations & the Constitution

the high seas (as opposed to ports and harbors). Led by Lord Edward Coke, the common law courts finally prevailed in the seventeenth century by issuing writs of prohibition to admiralty courts when they exceeded their jurisdiction (as understood by common law courts).22 Through this device, common law courts imposed strict limits on admiralty jurisdiction in England. By the end of the eighteenth century, admiralty courts had no jurisdiction over torts, offences or injuries, done in ports within the bodies of counties, notwithstanding the places be within the ebb and flow of the tide; nor over maritime contracts made within the bodies of counties or beyond sea, although they are, in some measure, to be executed upon the high seas; nor of contracts made upon the high seas to be executed upon land, or touching things not in their own nature maritime, such as a contract for payment of money.23 Although common law courts had prevailed in important respects over admiralty courts in England, admiralty courts in America exercised more expansive jurisdiction during the colonial era, and would exercise an even more expansive jurisdiction in the decades following the adoption of the Constitution.

II During the seventeenth century, local courts handled admiralty and maritime disputes in the American colonies, giving the colonies significant control over the application of the law maritime in America. In the eighteenth century, the Crown asserted more control by appointing vice-​admiralty courts in the colonies with jurisdiction to enforce British revenue, trade, and navigation laws.24 This jurisdiction exceeded that

22.  See 1 W. Holdsworth, A History of English Law 548–​59 (1971). A  prohibition was essentially an order from a common law court to an inferior court to cease adjudicating a dispute because the inferior court lacked jurisdiction over the dispute. Lord Coke relied heavily on this device, reasoning that common law courts could issue prohibitions to the admiralty because the latter was not a “court of record.” Coke, supra note 17, at 134-​35. 23. DeLovio, 7 F. Cas. at 426; see also Holdsworth, supra note 22, at 557 (describing the limited nature of admiralty jurisdiction in England). 24.  See David R. Owen & Michael C. Tolley, Courts of Admiralty in Colonial America: The Maryland Experience, 1634–​1776, at 5 (1995); Carl Ubbelohde, The Vice-​ Admiralty Courts and the American Revolution 5 (1960).

  121



The Law Maritime and the Constitution

121

of admiralty courts in England, where common law courts heard such cases. The Crown expanded the jurisdiction of vice-​admiralty courts in the colonies because local courts (sitting with local juries) had been unreliable in enforcing British trade laws and customs duties. The Crown also gave vice-​admiralty courts in the colonies concurrent jurisdiction to hear certain maritime contract and tort actions that, in England, were heard exclusively by common law courts.25 Some Americans resented these novel uses of vice-​admiralty courts in the colonies because such courts sat without juries. The practices of vice-​admiralty courts generated countermeasures from colonial governments, and eventually were a contributing cause of the American Revolution. At times, colonial common law courts attempted to restrict the jurisdiction of vice-​admiralty courts by issuing writs of prohibition, as common law courts had done in England.26 Shortly before declaring their independence from Great Britain, some colonies even appointed their own admiralty courts. With independence, the colonists ultimately declared themselves free of the admiralty courts established by the Crown. As independent sovereigns, the states needed courts with admiralty jurisdiction to resolve disputes involving the high seas. All thirteen states quickly established such courts, and many even employed juries. In theory, these state admiralty courts were subject to the restrictions set forth in the two statutes of Richard II because many state reception laws incorporated both the common law of England and its major statutes.27 In practice, however, the states did not strictly enforce the limitations on admiralty jurisdiction found in these statutes,28 perhaps because admiralty courts in America were no longer instruments of the Crown, capable of overriding local control.

25. Owen & Tolley, supra note 24, at 4, 139. 26. See Frederick Bernays Wiener, Notes on the Rhode Island Admiralty, 1727–​1790, 46 Harv. L. Rev. 44 (1932). 27. See Ford W. Hall, The Common Law: An Account of Its Reception in the United States, 4 Vand. L.  Rev. 791 (1951). For example, Maryland’s Constitution of 1776 explicitly provided that “the inhabitants of Maryland are entitled to the common law of England, and the trial by Jury, according to the course of that law, and to the benefit of such of the English statutes, as existed at the time of their first emigration.” Md. Const. art. V, § 1 (1776). 28. See Dean v. Angus, 7 F. Cas. 294, 297 (Adm. Ct. Pa. 1785) (No. 3,702) (expressing a willingness to expand admiralty jurisdiction based in part on the observation “that if the decision in favour of the jurisdiction should be erroneous, the doors of the common law courts are open for redress, and a prohibition may be obtained”).

122

122 T he Tr aditional L aw of Nations & the Constitution

While state courts exercised original jurisdiction in admiralty cases, Congress exercised its authority under the Articles of Confederation to create the first federal court—​a three-​judge admiralty court of appeals with limited jurisdiction to hear appeals from state admiralty courts in cases of capture or prize. Congress further recommended that states adopt laws directing their admiralty courts to comply with the federal appellate court’s decrees.29 It is not surprising that the first federal court was a prize court. As explained in Chapter 3, the law of state-​state relations required all nations to comply with the law of prize and redress improper captures, and the United States’ failure to do so would have undermined the peace and security of the newly-​independent states. At the Constitutional Convention of 1787, a consensus emerged that the federal judiciary should have some form of admiralty jurisdiction, especially over cases involving the law of state-​state relations. The Virginia Plan originally proposed that federal courts should have jurisdiction “to hear & determine in the first instance … all piracies & felonies on the high seas, captures from an enemy; cases in which foreigners or citizens of other States applying to such jurisdictions may be interested, or which respect the collection of the National revenue; impeachments of any National officers, and questions which may involve the national peace and harmony.”30 Other plans took a similar, piecemeal approach. Only the Pinckney Plan would have given federal courts jurisdiction of “all cases of Admiralty & maritime jurisdiction.”31 In the end, the Convention adopted this more comprehensive approach. The Constitution provides that the “judicial Power shall extend … to all Cases of admiralty and maritime Jurisdiction.”32 This jurisdictional grant was broad enough to encompass both public maritime disputes subject to the law of state-​state relations (prize cases) and private maritime disputes subject to the law maritime (instance cases). Despite its breadth, this jurisdictional grant was not controversial during ratification. As Alexander Hamilton remarked in The Federalist: The most bigoted idolizers of state authority have not thus far shown a disposition to deny the national judiciary the cognizance of 29. See 16 Journal of the Continental Congress 61–​62 (Worthington Chauncey Ford ed., 1904) (1780). 30. 1 The Records of the Federal Convention of 1787, at 21–​22 (Max Farrand ed., 1911). 31. 3 id. at 600. 32. U.S. Const. art. III, § 2.

  123



The Law Maritime and the Constitution

123

maritime causes. These so generally depend on the laws of nations, and so commonly affect the rights of foreigners, that they fall within the considerations which are relative to the public peace. The most important part of them are by the present confederation, submitted to federal jurisdiction.33 By “the most important part” of maritime causes, Hamilton was referring to prize cases because they were the only maritime causes already subject to federal appellate jurisdiction under the Articles of Confederation. Although the constitutional grant of admiralty and maritime jurisdiction generated little debate, the precise bounds of the grant were contested in practice. The First Congress implemented the jurisdictional grant by giving lower federal courts “exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction, including all seizures under laws of impost, navigation or trade of the United States, where the seizures are made, on waters which are navigable from the sea by vessels of ten or more tons burthen, within their respective districts as well as upon the high seas; saving to suitors, in all cases, the right of a common law remedy, where the common law is competent to give it.”34 Moreover, in the Process Acts, Congress authorized federal courts exercising admiralty and maritime jurisdiction to use the forms and modes of proceeding that belonged to courts of admiralty.35 Congress thereby explicitly authorized the causes of action cognizable in the federal courts’ admiralty and maritime jurisdiction.36 These grants of power and exclusive jurisdiction (subject to the savings clause) meant that “every District Court in the United States, possesse[d]‌all the powers of a court of Admiralty, whether considered as

33. The Federalist No. 80, at 538 (Alexander Hamilton) (Jacob E. Cooke ed., 1961). 34. Judiciary Act of 1789, § 9, ch. 20, 1 Stat. 73, 76–​77. 35. In the Process Act of 1789, the First Congress provided that for cases within the federal courts’ admiralty and maritime jurisdiction, “the forms and modes of proceedings  … shall be according to the course of the civil law.” Act of Sept. 29, 1789, § 2, 1 Stat. 93, 93–​94. In the Process Act of 1792, Congress provided that the “forms and modes of proceeding” in cases “of admiralty and maritime jurisdiction” were to be “according to the principles, rules and usages which belong … to courts of admiralty … as contradistinguished from courts of common law.” Act of May 8, 1792, ch. 36, § 2, 1 Stat. 275, 276 (repealed 1872). 36.  For a full analysis of how the Process Acts authorized the causes of action that federal courts could adjudicate in the exercise of their respective jurisdictions, see Anthony J. Bellia Jr. & Bradford R. Clark, The Original Source of the Cause of Action in Federal Courts: The Example of the Alien Tort Statute, 101 Va. L. Rev. 609 (2015).

124

124 T he Tr aditional L aw of Nations & the Constitution

an instance, or as a prize court.”37 It was undisputed that federal admiralty courts had exclusive jurisdiction over prize cases.38 The precise scope of federal admiralty and maritime jurisdiction over instance cases proved to be more controversial.

III Federal courts sitting in admiralty quickly questioned whether they were bound by England’s narrow conception of admiralty jurisdiction as it existed at the founding. For example, as early as 1792, a Pennsylvania district judge denied that the English precedents and statutes were binding in America: “Acting as we now do in a national, and not a dependent capacity, I cannot conceive that we are bound to follow the [admiralty] practice in England, more than that of our own, or any other nation.”39 No jurist was more influential on this question than Justice Joseph Story. In the course of deciding DeLovio v. Boit as a circuit justice in 1815, Story undertook “a thorough examination of the whole jurisdiction of the admiralty” in both England and the United States.40 DeLovio was an instance case involving a policy of insurance that the plaintiff claimed was a maritime contract within the circuit court’s admiralty jurisdiction. Invoking the English practice, the defendant argued that the court lacked admiralty jurisdiction over the case because the contract in question was neither made nor solely to be executed upon the sea. In addressing this contention, Justice Story considered himself “at liberty to re-​examine the [English] doctrines, and to construe the jurisdiction

37. Glass v. Sloop Betsey, 3 U.S. (3 Dall.) 6, 16 (1794) (emphasis omitted). 38. Although the Supreme Court later interpreted the savings clause to draw a distinction between in rem and in personam actions, see The Moses Taylor, 71 U.S. (4 Wall.) 411 (1866), the original meaning of the clause appears to be that suitors could bring a common law action (in any state or federal court with jurisdiction) in “all disputes in which the common law [was] competent to give a cause of action.” William R. Casto, The Origins of Federal Admiralty Jurisdiction in an Age of Privateers, Smugglers, and Pirates, 37 Am. J. Legal Hist. 117, 146 (1993). On this understanding, the savings clause drew an obvious and important distinction between prize cases (in which common law courts were incapable of providing a remedy or cause of action) and instance cases (in which common law courts often provided a remedy depending on where the case arose). See Bradford R. Clark, Federal Common Law: A Structural Reinterpretation, 144 U. Pa. L. Rev. 1245, 1351–​53 (1996). 39. Jennings v. Carson, 13 F. Cas. 540, 542 (D. Pa. 1792) (No. 7,281); see also Stevens v. The Sandwich, 23 F. Cas. 29, 30 (D. Md. 1801) (No. 13, 409). 40. DeLovio v. Boit, 7 F. Cas. 418, 418 (C.C.D. Mass. 1815) (No. 3,776) (Story, J.).

  125



The Law Maritime and the Constitution

125

of the admiralty upon enlarged and liberal principles.”41 Story undertook an exhaustive examination of the history of admiralty jurisdiction in England and concluded that the English common law courts had construed that jurisdiction too narrowly. Prior to the statutes of Richard II, admiralty jurisdiction “extended to all maritime contracts, whether executed at home or abroad, and to all torts, injuries, and offences, on the high seas, and in ports, and havens, as far as the ebb and flow of the tide.”42 Although the common law courts interpreted the statutes of Richard II to limit the admiralty’s jurisdiction “to things wholly and exclusively done upon the sea,” Story found this interpretation of the statutes to be “indefensible.” Story concluded, instead, that the statutes—​properly construed—​did not “abridge any of [the admiralty courts’] ancient jurisdiction.”43 Justice Story further observed that “the courts of common law, by a silent and steady march, have gradually extended the limits of their own authority” and usurped the authority of admiralty courts in England.44 Justice Story framed the question in DeLovio as whether “the narrow and perplexed doctrines of the common law” should determine the scope of admiralty and maritime jurisdiction in the United States.45 On this question, Story found “no solid reason for construing the terms of the constitution in a narrow and limited sense, or for ingrafting upon them the restrictions of English statutes, or decisions at common law founded on those statutes.”46 Story took the position that the statutes of Richard II did not apply of their own force to the colonies, and that adhering to the common law limits on admiralty jurisdiction would be “contradictory to the commissions and practice of the vice admiralty colonial courts.”47 Story also made a textual argument based on Article III. He pointed out that Article III “not only confers admiralty jurisdiction, but the word ‘maritime’ is superadded, seemingly ex industria, to remove every latent doubt.”48 The

41. Id. at 441. 42. Id. 43. Id. 44. Id. at 426. 45. Id. at 444. 46. Id. at 443. 47. Id. at 442. 48. Id.

126

126 T he Tr aditional L aw of Nations & the Constitution

constitutional language, he determined, referred not merely to the narrow conception of admiralty jurisdiction in England, but also “to that maritime jurisdiction, which commercial convenience, public policy, and national rights, have contributed to establish, with slight local differences, over all Europe.”49 For these reasons, he construed the Constitution’s grant of admiralty and maritime jurisdiction “to embrace all maritime contracts, torts and injuries, or, in other words, to embrace all those causes, which originally and inherently belonged to the admiralty, before any statutable restriction” in England.50 Although Justice Story’s “enlarged and liberal” construction of admiralty jurisdiction did not go unchallenged by other justices,51 the Supreme Court ultimately embraced his view in 1870. In Insurance Co. v. Dunham, the Court rejected the restrictive common law approach to admiralty jurisdiction and endorsed Justice Story’s “more enlarged view of the subject.”52 In the Court’s view, Story’s “learned and exhaustive opinion … has never been answered, and will always stand as a monument of his great erudition.”53 The Supreme Court’s embrace of broad admiralty jurisdiction in 1870 was especially significant because the Court had previously abandoned the long-​standing tidewater doctrine as a strict geographic limit on admiralty jurisdiction—​a limit that even Justice Story had embraced. In DeLovio Justice Story repeatedly referred to “the ebb and flow of the tide” as marking the outer limit of admiralty and maritime jurisdiction.54 Justice Story endorsed the tidewater doctrine again a decade later, this time on behalf of the Supreme Court. His opinion in The Steam-​Boat Thomas Jefferson55 explained: In respect to contracts for the hire of seamen, the Admiralty never pretended to claim, nor could it rightfully exercise any jurisdiction, 49. Id. at 443. 50. Id. 51. For example, in Ramsay v. Alegre, 25 U.S. (12 Wheat.) 611 (1827), Justice William Johnson delivered a lengthy concurring opinion in order “to check this silent and stealing progress of the Admiralty in acquiring jurisdiction to which it has no pretensions.” Id. at 614 (Johnson, J., concurring). 52. 78 U.S. (11 Wall.) 1, 25 (1870). 53. Id. at 35. 54. See DeLovio, 7 F. Cas. at 419, 420, 430, 440, 443. 55. 23 U.S. (10 Wheat.) 428 (1825).

  127



The Law Maritime and the Constitution

127

except in cases where the service was substantially performed, or to be performed, upon the sea, or upon waters within the ebb and flow of the tide. This is the prescribed limit, which it was not at liberty to transcend.56 Justice Story continued to serve on the Court until his death in 1845. That year, Congress extended federal admiralty jurisdiction beyond the limits of the tidewater doctrine to the Great Lakes and connecting navigable waterways.57 Six years later, the Supreme Court upheld this expansion of admiralty jurisdiction and thus rejected the prior limits established by the tidewater doctrine.58 All “public navigable water[s]‌, including lakes and rivers in which there is no tide,” the Court concluded “are within the grant of admiralty and maritime jurisdiction in the Constitution of the United States.”59 The Court reasoned that although the tidewater doctrine was appropriate at the founding—​because at that time the navigable waters of the United States were largely subject to the ebb and flow of the tide—​the tidewater doctrine was not a constitutional limit on the federal courts’ admiralty and maritime jurisdiction. In the Court’s view, as the nation expanded westward, Congress was justified in expanding the federal courts’ admiralty and maritime jurisdiction to all navigable waters of the United States, whether or not within the ebb and flow of the tide.60 The combined effect of the Court’s decisions abandoning the tidewater doctrine and embracing Justice Story’s enlarged conception of admiralty jurisdiction was to sweep innumerable tort and contract disputes relating to the inland waterways within the federal courts’ admiralty and maritime jurisdiction. Prior to these decisions, state common law courts had exclusive jurisdiction over many such disputes because federal courts had no other basis to exercise Article III jurisdiction over them. The Supreme Court’s expansion of admiralty and maritime jurisdiction in federal courts had two important implications for maritime cases—​ implications that would only grow in significance over time.

56. Id. at 429. 57. Act of Feb. 26, 1845, ch. 20, 5 Stat. 726. 58. The Propeller Genesee Chief v. Fitzhugh, 53 U.S. (12 How.) 443 (1851). 59. Id. at 457. 60. Id. at 455.

128

128 T he Tr aditional L aw of Nations & the Constitution

Procedurally, federal courts sitting in admiralty could now try these cases without employing juries or other common law procedures. Substantively, federal courts could apply general maritime law rather than local state law to these cases. The Supreme Court’s new approach initially had only limited effect on state court jurisdiction or state regulatory authority for two reasons. First, until 1917, federal and state courts had never considered the general maritime law to be a form of supreme federal law capable of preempting state law.61 Thus, federal courts exercising admiralty and maritime jurisdiction applied the law maritime—​like the law merchant—​as general law rather than federal law, but left state courts free to apply law of their own choosing in other cases. Second, through the mid-​nineteenth century most states continued to apply general law to resolve commercial disputes, including maritime commercial disputes.62 Thus, although the expansion of federal admiralty jurisdiction enabled federal courts to hear more cases, federal and state courts often applied the same body of general law in maritime cases, even if they sometimes differed as to its precise content. As in the case of the law merchant, however, the content of the general law maritime applied by state and federal courts increasingly diverged over time. State courts increasingly opted out of general maritime law in the latter half of the nineteenth century in favor of local state law. This meant that the law applied in a particular case would often vary solely on the basis of whether the plaintiff brought the case in state or federal court. By the twentieth century, this disparity became especially pronounced as states adopted both local statutes and local common law rules to govern a variety of maritime questions arising within their borders. In Southern Pacific Co. v. Jensen,63 the Supreme Court confronted the increasing disparity in the source of law applied in federal and state courts, and resolved it by declaring general maritime law to be a form of supreme federal law. Unlike Erie, which would hold two decades later that federal

61. See Am. Ins. Co. v. Canter, 26 U.S. (1 Pet.) 511, 545–​46 (1828) (“A case in admiralty does not, in fact, arise under the Constitution or laws of the United States.”). 62. See William A. Fletcher, The General Common Law and Section 34 of the Judiciary Act of 1789: The Example of Marine Insurance, 97 Harv. L. Rev. 1513, 1575 (1984) (noting that “the state courts considered themselves, other state courts, and the federal courts to be engaged in precisely the same enterprise: deciding cases under, and developing a system of, general common law”). 63. 244 U.S. 205 (1917).

  129



The Law Maritime and the Constitution

129

courts must apply applicable state law, Jensen held that state law is preempted if it “works material prejudice to the characteristic features of the general maritime law or interferes with the proper harmony and uniformity of that law in its international and interstate relations.”64 Jensen, a “Lochner era” case,65 involved a claim for worker’s compensation stemming from the death of Christen Jensen, an employee of Southern Pacific. Jensen died in an accident while unloading cargo from a ship docked in New York. Jensen’s widow initially brought the case before the New  York Workmen’s Compensation Commission, which awarded her damages pursuant to the state’s workmen’s compensation statute. The New York state courts affirmed the award, and Southern Pacific appealed to the Supreme Court. Before the Court, Southern Pacific objected to the award on the ground that the Federal Employer’s Liability Act and the general maritime law preempted it. In an opinion by Justice Clark McReynolds, the Supreme Court reversed the state award. The Court found that the federal statute was inapplicable to this case, but concluded that general maritime law nonetheless preempted New York law. The Court relied on the constitutional grant of admiralty and maritime jurisdiction to the federal courts to conclude that the general maritime law “was incorporated into our national laws by the Constitution itself.”66 Specifically, “in consequence of” Article III’s grant of admiralty and maritime jurisdiction to federal courts, “the general maritime law, as accepted by the federal courts, constitutes part of our national law applicable to matters within the admiralty and maritime jurisdiction.”67 In other words, the Court held that general maritime law operates as preemptive federal law in some instances because Article III’s admiralty and maritime jurisdiction incorporates it as federal law.68 But this incorporation, according to the Court, was not absolute. The Court 64. Id. at 216. 65. This era is named for the Court’s decision in Lochner v. New York, 198 U.S. 45 (1905), in which the Supreme Court interpreted the Due Process Clause of the Fourteenth Amendment to impose substantive limits on state regulation of economic activity. The Court overruled Lochner and its progeny two decades later on the ground that such decisions involved improper judicial usurpation of legislative authority. Around the same time, the Erie Court abandoned the Swift doctrine for much the same reason. 66. Jensen, 244 U.S at 216. 67. Id. at 215. 68. See Michael D. Ramsey, Customary International Law in the Supreme Court, 1901–​1945, in International Law in the U.S. Supreme Court: Continuity and Change 225, 244, 248

130

130 T he Tr aditional L aw of Nations & the Constitution

acknowledged that “the general maritime law may be changed, modified, or affected by state legislation” to some extent.69 In this case, however, the New York workmen’s compensation statute improperly interfered with the degree of uniformity that the Court thought general maritime law should possess. The Court thus found the New York statute to be preempted. The 5-​4 decision in Jensen provoked one of Justice Oliver Wendell Holmes’s most famous dissents. He observed that prior to the Court’s ruling state law “would prevail in the courts of the State” even “when the admiralty had a rule of its own.”70 In his view, “[i]‌f admiralty adopts common-​law rules without an act of Congress it cannot extend the maritime law as understood by the Constitution.”71 In such cases, it “must take the rights of the parties from a different authority,” and the “only authority available is the common law or statutes of a State.”72 Justice Holmes also argued that the “common law is not a brooding omnipresence in the sky, but the articulate voice of some sovereign or quasi-​sovereign that can be identified.”73 Accordingly, the common law “always is the law of some State.”74 For these reasons, Justice Holmes would have applied state law to uphold the award of workmen’s compensation. Justice Holmes made strikingly similar arguments dissenting in contemporaneous cases applying general law under the Swift doctrine. The Supreme Court ultimately accepted his arguments in Erie and declared the Swift doctrine to be “an unconstitutional assumption of powers by the Courts of the United States which no lapse of time or respectable array of opinion should make us hesitate to correct.”75 Notwithstanding Erie, the Court has not seen fit to revisit Jensen’s holding that Article III’s grant of admiralty and maritime jurisdiction authorizes federal courts to develop a

(David L. Sloss, Michael D. Ramsey & William S. Dodge eds., 2011) (explaining that “in the Jensen Court’s view, Article III’s grant of admiralty and maritime jurisdiction constitutionally directed federal courts to apply general maritime law and excluded States from interfering”). 69. Jensen, 244 U.S. at 216. 70. Id. at 222–​23 (Holmes, J., dissenting). 71. Id. at 221. 72. Id. 73. Id. at 222. 74. Id. 75.  Erie R.R. Co. v.  Tompkins, 304 U.S. 64, 79 (1938) (quoting Black & White Taxicab & Transfer Co. v. Brown & Yellow Taxicab & Transfer Co., 276 U.S. 518, 533 (1928) (Holmes, J., dissenting)).

  131



The Law Maritime and the Constitution

131

federal common law of maritime law. Instead, under Jensen, the Court has built up decades of precedent developing federal maritime law and refining its relationship with state law.76

IV Among the three traditional branches of the law of nations, the law maritime is the only one that the Supreme Court has found to be incorporated as federal law by an Article III jurisdictional grant. It is debatable whether—​in holding it to be so incorporated—​the Court correctly interpreted the federal courts’ admiralty and maritime jurisdiction. In particular, the Court’s holding in Jensen that Article III authorizes federal courts to develop federal common law in maritime cases is in tension with Erie’s abandonment of general law and embrace of local state law in diversity cases.77 This tension may be greater or lesser depending on where a particular case arises. Applying general maritime law to cases arising within the territorial jurisdiction of a state arguably raises constitutional concerns of the kind that led Erie to abandon the Swift doctrine.78 On the other hand, applying general maritime law to cases arising beyond the territorial jurisdiction of the states does not raise the same constitutional concerns. For present purposes, whether or not Jensen and its progeny have correctly interpreted Article III to incorporate general maritime law as federal law is not essential to resolving larger questions relating to the law of nations and the Constitution. If Jensen is correct, then Article III of the Constitution provides the source of federal law that courts apply in admiralty and maritime cases. If Jensen is incorrect (at least as applied to some cases), then courts should apply state law for the reasons set forth in Erie and Justice Holmes’s dissent in Jensen. Either way, Jensen tells us

76. The Court’s modern approach has not gone completely unchallenged. See Am. Dredging Co. v. Miller, 510 U.S. 443, 458 (1994) (Stevens, J., concurring in part and concurring in the judgment) (“In my view, Jensen is just as untrustworthy a guide in an admiralty case today as Lochner v. New York … would be in a case under the Due Process Clause.”). 77. See Clark, supra note 38, at 1354–​60; see also Ernest A. Young, Preemption at Sea, 67 Geo. Wash. L. Rev. 273 (1999). 78. A state’s authority generally runs with its territory. See United States v. Bevans, 16 U.S. (3 Wheat.) 336 (1818). The Supreme Court has recognized an exception to this territorial approach when a state seeks to regulate its own citizens. See Skiriotes v. Florida, 313 U.S. 69, 77 (1941) (“[W]‌e see no reason why the State of Florida may not … govern the conduct of its citizens upon the high seas … .”).

132

132 T he Tr aditional L aw of Nations & the Constitution

little about how the other branches of the law of nations—​the law merchant and the law of state-​state relations—​interact with the Constitution. Indeed, as discussed in Chapters 2, 3, and 4, the Supreme Court has interpreted the Constitution to interact with each branch of the law of nations differently. Originally, federal courts applied the law merchant as general law in the exercise of their diversity jurisdiction, subject to any alterations or displacement by local state law. Once states abandoned judicial application of general law such as the law merchant in favor of local state law, Erie eventually interpreted the Constitution to require federal courts to apply state law in the absence of an applicable provision of the Constitution or a federal statute. The Court has never understood Article III’s grant of diversity jurisdiction to authorize federal courts to fashion federal common law capable of preempting state law. The Supreme Court also has taken a distinctive approach to how the law of state-​state relations interacted with the Constitution. Since the founding, federal courts have respected rights of foreign sovereigns under the law of state-​state relations as a means of upholding the Constitution’s exclusive allocation of recognition and other foreign relations powers to the political branches. Courts also have refused to hold foreign nations accountable for violating the law of nations as a means of upholding the political branches’ exclusive powers to decide whether, when, and how to pursue redress against foreign nations for their misconduct. Nothing in Erie or Jensen is inconsistent with these longstanding judicial practices. Thus, as discussed in Chapter 4, the Supreme Court has continued to uphold the rights of recognized foreign nations under the law of state-​state relations as a consequence of the Constitution’s allocation of powers to the political branches. Finally, the law maritime has interacted with the Constitution in its own unique way. Federal courts originally applied the public law maritime as a part of the law of state-​state relations, most often in prize cases such as United States v.  Peters79 and The Nereide,80 discussed in Chapter 4. Respecting the rights of foreign sovereigns in such cases—​ and refraining from holding them accountable for their violations of U.S.  rights—​was necessary to uphold the Constitution’s allocation of specific foreign relations powers to the political branches.

79. 3 U.S. (3 Dall.) 121 (1795). 80. 13 U.S. (9 Cranch) 388 (1815).

  133



The Law Maritime and the Constitution

133

81 Another notable early prize decision—​ Croudson v.  Leonard  —​ exemplified this practice. The case presented the question whether the allegedly erroneous decision of a foreign admiralty court condemning a U.S. ship and its cargo as prize for breach of neutrality was conclusive in subsequent civil proceedings in U.S. courts between the ship’s owner, as the insured, and his insurer. The Supreme Court decided that the decision of the foreign court was conclusive according to the settled law in England and the spirit of comity among nations. In a separate opinion, Justice Bushrod Washington offered an additional reason—​grounded in the Constitution’s allocation of powers—​why U.S. courts should treat foreign prize determinations as conclusive:

If the injustice of the belligerent powers, and of their courts, should render this rule oppressive to the citizens of neutral nations, I can only say … let the government in its wisdom adopt the proper means to remedy the mischief. I hold the rules of law, when once firmly established, to be beyond the controul of those who are merely to pronounce what the law is, and if from any circumstance it has become impolitic, in a national point of view, it is for the nation to annul or to modify it. Till this is done, by the competent authority, I consider the rule to be inflexible.82 In other words, Justice Washington thought that U.S. courts should adhere to the rules of prize law and leave it to the political branches to decide whether, when, and how to hold a foreign nation accountable for its courts’ mistreatment of U.S. citizens. This allocation of powers rationale would be equally applicable to prize determinations today (although they rarely occur), and it would be unnecessary and superfluous to characterize the rule endorsed in Croudson as “federal common law.” The same rationale is not available to support the application of federal common law rules governing private maritime disputes, especially those that occur within the territory of a state. Federal courts originally applied the private law maritime as a form of general law akin to the law merchant, and thus had no need to decide whether such law was state or federal. Since Jensen, the Supreme Court has understood Article III’s

81. 8 U.S. (4 Cranch) 434 (1808). 82. Id. at 442–​43 (Washington, J.).

134

134 T he Tr aditional L aw of Nations & the Constitution

grant of admiralty and maritime jurisdiction to authorize federal courts to develop a uniform body of federal maritime law capable of preempting state law. Although some justices believe that “Jensen and its progeny represent an unwarranted assertion of judicial authority to strike down or confine state legislation … without any firm grounding in constitutional text or principle,”83 the Court has adhered to Jensen and continues to treat maritime law in private disputes as a distinct—​even unique—​enclave of federal common law.

83. Am. Dredging Co. v. Miller, 510 U.S. 443, 459 (1994) (Stevens, J., concurring in part and concurring in the judgment).

  135

PART TWO

Chapters 6–​7

Modern Customary International Law and the Constitution In the twentieth century, a new kind of customary international obligation developed that was different from the three traditional branches of the law of nations. The law merchant governed commercial transactions between merchants of different nations and states. The law of state-​state relations governed the rights and obligations of nations toward each other and toward each other’s citizens, recognizing the right of every nation to govern its own citizens in its own territory. The law maritime governed both commercial transactions arising on or relating to the high seas, and the rights and obligations of nations in their mutual use of the seas. In the twentieth century, a new kind of customary international law emerged, known as modern customary international law. This law was not analogous to any of the traditional branches of the law of nations. The defining characteristic of modern customary international law is that it governs how nations treat their own citizens within their own territory. This kind of international obligation overturned a core premise of the traditional law of state-​state relations—​namely, that each nation had a right to govern its own citizens within its own territory. This Part explains that the role of modern customary international law in U.S. courts raises constitutional questions that are distinct from those raised by the role of the three traditional branches of the law of nations in U.S. courts. As explained in Part I of this book, the Constitution was designed to interact with each of the three traditional branches of the law of nations in distinct ways. Modern customary international law, however, did not exist at the founding. Indeed, the founders could not have anticipated its development, as it runs counter to the core premises of the law

136

136 Modern Customary International L aw

of state-​state relations that they took for granted when they drafted and adopted the Constitution. The Constitution thus contains no provisions designed to address the role of modern customary international law in U.S. courts. It is not surprising, then, that the status of modern customary international law in U.S.  courts has been the subject of intense academic debate. Two positions have long dominated this debate. Proponents of the “modern position” have contended that all customary international law constitutes federal common law—​a form of preemptive federal law that U.S. courts may apply as a rule of a decision without adoption by the political branches. Proponents of this position would treat modern customary international law as having the same status in U.S.  courts as the traditional rights of nations under the law of state-​state relations. Proponents of the “revisionist position,” on the other hand, have contended that federal courts never may apply customary international law as a rule of decision unless either the federal government has adopted it as supreme federal law or a state has adopted it as state law. Proponents of this position functionally treat modern customary international law as having no greater status in U.S. courts than the law merchant. Modern customary international law, however, is not analogous to either the law merchant or the traditional rights of foreign sovereigns under the law of state-​state relations. The provisions of the Constitution that address the status and role of those traditional branches of the law of nations have limited application to modern customary international law. The basic problem with both positions in this debate is that they treat customary international law as a monolithic body of law and propose a one-​size-​fits-​all solution. As this Part shows, however, one must analyze how modern customary international law interacts with the Constitution on its own terms. Chapter 6 describes the emergence of modern customary international law in the twentieth century and how such law differs from each of the three traditional branches of the law of nations. It explains that the role of modern customary international law in U.S. courts cannot be determined simply by analogy to any of the three traditional branches of the law of nations. Instead, the status or role of modern customary international law in U.S. courts depends on how the particular obligations it imposes interact with the structure of government that the Constitution established. Chapter  7 describes the opposing academic positions regarding the role of modern customary international law in U.S. courts. Although these positions rely on historical understandings and judicial practice, they have

  137



Modern Customary International Law

137

erred in concluding that history and precedent support a one-​size-​fits-​all approach to the status of customary international law in U.S. courts. The approach offered in this book attempts to account for the more nuanced relationship between the design of the Constitution and distinct kinds of customary international law. This Part explains that it is not possible to determine the role of modern customary international law in U.S. courts without first appreciating that, like the three traditional branches of the law of nations, modern customary international law interacts with the Constitution in its own distinct ways. Part III of the book examines when, if ever, U.S. courts may enforce uncodified rules of modern customary international law against foreign nations, the United States, or the United States’ constituent states.

138

  139

6

Modern Customary International Law

None of the three branches of the law of nations discussed thus far sought to govern how nations treated their own citizens within their own territory. Rather, the law of nations traditionally concerned the rights of independent sovereign nations vis-​à-​vis each other (the law of state-​state relations), commercial transactions between citizens of different nations (the law merchant), and maritime transactions and injuries within the instance jurisdiction of admiralty courts (the law maritime). In the twentieth century, however, a new kind of customary international law emerged that differed in at least one significant respect from the traditional branches of the law of nations—​namely, it seeks to regulate how nations treat their own citizens within their own territory. This kind of international obligation did not exist at the founding. Indeed, such an obligation would have contradicted core principles of the law of nations at that time. As discussed in Chapters  3 and 4, the law of state-​state relations traditionally gave recognized nations a perfect right to govern their own citizens within their own territory. Thus, any attempt by one nation to interfere with another nation’s “internal” conduct toward its own citizens in its own territory—​in the absence of a civil war—​was itself a violation of the law of state-​state relations, and gave the aggrieved nation just cause for war. Because the law of state-​state relations recognized each nation’s authority to govern its own citizens in its own territory in 1789, members of the founding generation did not design—​and could not have designed—​the Constitution to take account of twentieth century principles of customary international law that would The Law of Nations and the United States Constitution. Anthony J. Bellia Jr. and Bradford R. Clark. © Oxford University Press 2017. Published 2017 by Oxford University Press.

140

140 Modern Customary International L aw

seek to restrict such authority. As explained in Chapters  2 through 5, the Constitution included specific provisions designed to interact with each of the three traditional branches of the law of nations known to the founders—​the law merchant, the law of state-​state relations, and the law maritime. Importantly, Article III gave federal courts jurisdiction over specific categories of cases likely to involve the application of each of these branches of the law of nations. In cases governed by the general law merchant, the Constitution enabled federal courts to apply such law in suits between diverse parties so long as U.S. states continued to apply the same law to disputes within their regulatory authority. In cases governed by the law of state-​state relations, the Constitution established several heads of jurisdiction that enabled federal courts to uphold the rights of recognized foreign nations and thereby respect the Constitution’s allocation of powers over recognition and foreign relations to the political branches. In cases governed by the law maritime, Article III’s grant of admiralty and maritime jurisdiction enabled federal courts to apply such law in both instance and prize cases. At the same time, federal courts refused to use general statutory grants of jurisdiction to hold a foreign nation accountable for its own violations of the law of nations.1 Federal courts would take such action against a foreign nation only if the political branches clearly authorized them to do so.2 Rules of modern customary international law, by which is meant rules that regulate how a nation governs its own citizens within its own territory, did not exist at the founding. Indeed, at the time the Constitution was written, the law of state-​state relations prohibited one nation from interfering with how another nation governed its own citizens in its own territory. Because the Constitution was drafted against the baseline provided by the traditional branches of the law of nations, it contains no self-​executing provisions designed to facilitate judicial enforcement of modern customary international law against either a foreign state, the United States, or a U.S.  state. This chapter describes the emergence of modern customary international law in the twentieth century, and explains how it differs from the three traditional branches of the law of nations. Chapters 8, 9, 1. See United States v. Peters, 3 U.S. (3 Dall.) 121 (1795) (prohibiting the district court from exercising admiralty jurisdiction to adjudicate whether France had violated the law of nations by improperly seizing, and condemning as a prize, a neutral American vessel). 2. See The Schooner Exchange v. McFaddon, 11 U.S. (7 Cranch) 116, 146 (1812) (stating that “until [the sovereign] power be exerted in a manner not to be misunderstood, the sovereign cannot be considered as having imparted to the ordinary tribunals a jurisdiction, which it would be a breach of faith to exercise”).

  141



Modern Customary International Law

141

and 10 evaluate whether the Constitution permits U.S. courts to enforce modern customary international law against foreign nations, the United States, or individual states. The answers to these questions depend upon the Constitution’s allocation and division of powers, historical understandings, and Supreme Court precedent.

I Until the twentieth century, the law of nations was not concerned with a sovereign’s actions toward its own citizens taken within its own territory. Neither the law merchant nor the law maritime addressed such matters, and the law of state-​state relations was concerned only with how one nation and its citizens treated another nation and its citizens. The law of state-​state relations did not address any legal duties owed by a nation to its own citizens.3 The rights of a sovereign state included “the rights of existence, of self-​preservation, of equality, of independence, of territorial supremacy, of holding and acquiring territory, of intercourse, and of good name and reputation.”4 Because each sovereign possessed such rights, no sovereign’s rights could be unlimited; sovereign rights correlated with sovereign duties to abstain from violating the rights of other sovereigns, and to prevent its agents and citizens from interfering with such rights.5 As a result, the law of state-​state relations developed rules to ensure that one nation did not infringe upon the sovereign rights of another, including its right to govern its own citizens in its own territory. Notably, a nation’s obligations under the law of state-​state relations did not include direct obligations toward individuals, especially its own citizens. The law of state-​state relations concerned only the relations between sovereigns, and thus only sovereigns possessed rights under such law. To be sure, some sovereign rights concerned how one nation treated the citizens of another nation. For instance, a sovereign had an obligation to prevent violence against the citizens and subjects of a sovereign with whom it was at peace, and to redress such violence perpetrated by its own citizens or subjects.6 That obligation ran, however, from one sovereign to another.

3. See R.Y. Jennings, The Progress of International Law 2 (1960). 4. 1 L. Oppenheim, International Law: A Treatise 259 (8th ed. 1955). 5. Id. at 286. 6. See Anthony J. Bellia Jr. & Bradford R. Clark, The Alien Tort Statute and the Law of Nations, 78 U. Chi. L. Rev. 445, 471–​77 (2011) (describing this obligation under the law of nations).

142

142 Modern Customary International L aw

Individuals did not have rights under the law of nations that they could assert against a sovereign, including their own sovereign. To the contrary, “it was thought to be antithetical for there to be international legal rights that individuals could assert against states, especially against their own governments.”7 In short, international law did not historically regulate how a nation treated its own citizens or subjects within its own territory. In the twentieth century, however, a new kind of international obligation emerged that established restrictions on how nations treated their own citizens within their own territory. Scholars debate precisely when such customary rules of international law emerged, but the exact date is not of central importance here. The general consensus is that such rules of international law emerged during the first half of twentieth century.8 The process of international protection of human rights against governmental practices began with international agreements among nations. In 1924, the League of Nations established a Temporary Slavery Commission to protect “the right to be free from enslavement as a fundamental freedom under international law.”9 The signatories to the Slavery Convention of 1926 agreed to work toward the abolition of slavery within their own territories, and some scholars argue that the right to be free from slavery emerged as “the first recognized human right” in modern customary international law in the late 1930s.10 The League of Nations era also saw the development of the mandates system for protection of indigenous populations of former colonies and the development of protections of minorities in the redrawn Europe,11 as well as the International Labor Organization, created in 1919 as part of the Treaty of Versailles. The watershed event in the development of international human rights law occurred in the aftermath of World War II, during the Nuremberg

7. Mark Weston Janis, An Introduction to International Law 257 (4th ed. 2003). 8. See, e.g., Lea Brilmayer, International Law in American Courts: A Modest Proposal, 100 Yale L.J. 2277, 2287 (1991) (“Only in relatively recent times has it come to be accepted that a state’s treatment of its own people might give rise to a violation of international law.”). 9.  See Renee Colette Redman, The League of Nations and the Right to Be Free from Enslavement: The First Right to Be Recognized as Customary International Law, 70 Chi.-​Kent L. Rev. 759, 761 (1994). 10. Id. at 761–​63. See also A. Yasmine Rassam, Contemporary Forms of Slavery and the Evolution of the Prohibition of Slavery and the Slave Trade Under Customary International Law, 39 Va. J. Int’l L. 303 (1999). 11. See Thomas Buergenthal, The Evolving International Human Right System, 100 Am. J. Int’l L. 783 (2006).

  143



Modern Customary International Law

143

trials.12 Following World War II, customary international law began to recognize limited rules regulating a nation’s treatment of its own citizens in order to prevent the recurrence of wartime atrocities such as genocide and torture. “For the first time, customary international law [was] viewed as providing a host of rights that individuals can assert against their own governments.”13 In 1948, the United Nations General Assembly adopted the Universal Declaration of Human Rights,14 and since that time has subsequently issued many human rights declarations and resolutions. During this period, moreover, nations concluded numerous human rights conventions. On the basis of these developments, there is now a consensus that modern customary international law includes rules against genocide, crimes against humanity, torture, prolonged arbitrary detention, extrajudicial killing, and other mistreatment of persons by a government. International human rights advocates have urged recognition of numerous additional rights that citizens can assert against their own nations. “[P]‌otential candidates for rights recognized under customary international law” include “the right to free choice of employment; the right to form and join trade unions; and the right to free primary education, subject to a state’s available resources.”15 Other proposed rights under customary international law include the right of minors to be free from parental involvement in abortion decisions,16 the right to a healthy environment,17 and the right of juvenile offenders to avoid life imprisonment without parole.18

12. See Janis, supra note 7, at 257. 13. Francisco Forrest Martin et al., International Human Rights and Humanitarian Law: Treaties, Cases, and Analysis 195 (2006). 14. G.A. Res. 217(III)A, Universal Declaration of Human Rights (Dec. 10, 1948). 15. Comm. on the Enf’t of Human Rights Law, Int’l Law Ass’n, Final Report on the Status of the Universal Declaration of Human Rights in National and International Law, in International Law Association, Report of the Sixty-​Sixth Conference 525, 548 (1994) (footnotes omitted). 16.  See Nancy E. Walker et  al., Children’s Rights in the United States:  In Search of a National Policy 36–​37 (1999); Katie Hatziavramidis, Parental Involvement Laws for Abortion in the United States and the United Nations Conventions on the Rights of the Child: Can International Law Secure the Right to Choose for Minors?, 16 Tex. J. Women & L. 185, 194, 197 (2007). 17.  See John Lee, The Underlying Legal Theory to Support a Well-​Defined Human Right to a Healthy Environment as a Principle of Customary International Law, 25 Colum. J. Envtl. L. 283, 332, 339 (2000). 18. See Molly C. Quinn, Comment, Life Without Parole for Juvenile Offenders: A Violation of Customary International Law, 52 St. Louis U. L.J. 283, 284–​85, 294 (2007).

144

144 Modern Customary International L aw

As modern customary international law—​ whatever its precise contours—​emerged in the twentieth century, nations faced the question of how such law interacts with their existing forms of government. Adherence to certain bedrock rules of modern customary international law, such as those that emerged to prevent the kind of atrocities that occurred during World War II, is uncontroversial in many nations because their domestic law independently confers such protections. More difficult questions arise regarding whether and how a nation will apply rules of customary international law that domestic law does not independently recognize or may even contradict.

II Because modern customary international law did not exist before the twentieth century, the Constitution does not contain any provisions specifically designed to govern its application in U.S.  courts. Indeed, as this book has explained, there is no one-​size-​fits-​all provision in the Constitution that governs the application of the law of nations or customary international law, writ large, in U.S. courts. Rather, the Constitution was designed to interact in distinct and specific ways with each branch of the law of nations in existence at the founding. Significantly, the Constitution left each branch of the law of nations subject to different forms of political and judicial control at both the state and federal levels. As discussed in later chapters, because modern customary international law includes rules that are fundamentally different from all three traditional branches of the law of nations, one cannot simply assume that constitutional provisions designed to interact with a traditional branch of the law of nations interact in the same way with modern customary international law.

A As discussed in Chapter 2, the Constitution was designed to interact with the law merchant in limited and precise ways. Article III extended the judicial power to controversies between citizens of different states, and between U.S.  citizens and foreign citizens or subjects. This diversity of citizenship jurisdiction enabled federal courts to adjudicate disputes likely to be governed by the law merchant. During the Confederation era, state courts and juries demonstrated bias against foreign (particularly British) merchants. Leading founders such as James Madison feared that foreign

  145



Modern Customary International Law

145

merchants would not trade with Americans under these circumstances, and argued that diversity jurisdiction would reassure foreigners and foster foreign commerce. Federal court diversity jurisdiction, however, did not authorize a change in the applicable law. State courts applied the general law merchant to commercial disputes as part of their state common law, and early federal courts exercising diversity jurisdiction applied the law merchant when state courts would apply it. If, however, a state court opted to apply its own local law rather than the general law merchant, then early federal courts followed their lead. To be sure, federal courts improperly expanded their conception of “general law” following the Civil War to override applicable state law, but the Supreme Court ultimately declared this practice to be unconstitutional in Erie. Diversity jurisdiction once enabled federal courts to apply the law merchant in appropriate cases, but such jurisdiction does not provide a ready basis for federal courts to enforce modern customary international law. A defining characteristic of modern customary international law is that it restricts the way in which a nation treats its own citizens within its own territory. Controversies of this nature typically would not involve diversity of citizenship within the meaning of Article III. Moreover, even if they did, Erie held that the Constitution requires federal courts to apply state law “[e]‌xcept in matters governed by the Federal Constitution or by Acts of Congress,”19 as discussed in Chapters  2 and 7.  On this basis, Erie rejected the practice that federal courts had developed in the late eighteenth and early nineteenth centuries of applying general law (instead of state law) in diversity cases. At the same time, however, even after Erie, federal courts continued to apply certain rules derived from the traditional law of state-​state relations, such as diplomatic immunity and the act of state doctrine. Because of the unique way in which the Constitution was designed to interact with the law merchant, historical understandings and judicial practice regarding the law merchant cannot determine when, if ever, U.S. courts may apply modern customary international law.20

19. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938). 20. As Curtis Bradley has recounted, “[m]‌ost scholars now agree that, before Erie Railroad v. Tompkins, customary international law had the status in the United States of general common law rather than supreme federal law. That is, customary international law, like the ‘law merchant’ applied in Swift v. Tyson, was part of a body of law that could be applied by courts as a rule of decision in the absence of controlling positive law to the contrary.” Curtis

146

146 Modern Customary International L aw

B As discussed in Chapters 3 and 4, the Constitution includes several provisions designed to interact with the law of state-​ state relations. The Constitution’s exclusive allocation of recognition, reprisal, capture, and war powers to the federal political branches can only be understood by reference to the law of state-​state relations. This allocation of powers required U.S. courts to uphold the rights of recognized foreign nations under the law of state-​state relations. Failure to uphold such rights would have contradicted the well-​understood meaning of recognition at the time. In addition, because one nation’s violation of another nation’s perfect rights constituted just cause for war, the judiciary’s failure to uphold the rights of a recognized foreign nation could have triggered conflict with the offended nation. At the same time, the Constitution’s exclusive allocation of power to the political branches to conduct diplomacy, issue reprisals, authorize captures, and declare and make war meant that U.S. courts lacked power to hold foreign nations accountable for their own violations of the law of nations without congressional authorization. As the Marshall Court explained, “reciprocating to the subjects of a nation, or retaliating on them, its unjust proceedings towards our citizens, is a political not a legal measure.”21 Judicial enforcement of modern customary international law against foreign nations without political branch approval does not fit within this paradigm. Recognition required courts to uphold the rights of foreign nations under the law of state-​state relations, not to constrain their traditional sovereign rights. Moreover, the Constitution’s exclusive assignment of reprisal, capture, and war powers to the political branches—​in addition to the powers to conduct diplomacy—​precluded courts from pursuing redress against a foreign state without express political branch authorization. Under the Constitution, all decisions regarding whether, when, and how to hold other nations accountable for their misdeeds were the exclusive province of the political branches. In short, the Constitution’s allocation of powers A. Bradley, The Juvenile Death Penalty and International Law, 52 Duke L. J. 485, 550 (2002) (internal footnotes omitted). See also Harold Hongju Koh, Is International Law Really State Law?, 111 Harv. L. Rev. 1824, 1831 (1998) (quoting The Paquete Habana, 175 U.S. 677, 700 (1900)) (stating that “federal courts construed both commercial and noncommercial rules of customary international law so regularly that Justice Gray provoked no dissent when he wrote: ‘International law is part of our law… .’ ”). As this book explains, however, the status of modern customary international law in U.S. courts cannot be determined by analogy to any traditional branch of the law of nations. 21. The Nereide, 13 U.S. (9 Cranch) 388, 422 (1815).

  147



Modern Customary International Law

147

required U.S. courts to uphold the rights of foreign nations under the law of state-​state relations, but to refrain from enforcing U.S. rights under such law against them. Given the unique relationship between the Constitution and the law of state-​state relations, cases upholding the rights of foreign sovereigns under this traditional branch of the law of nations tell us little about the role and status of modern customary international law in U.S. courts.

C As discussed in Chapter 5, the Constitution was designed to facilitate the application of the law maritime primarily by giving the federal judiciary jurisdiction to hear admiralty and maritime cases. This grant of Article III jurisdiction enabled Congress to give federal courts jurisdiction over various kinds of cases traditionally subject to the law maritime. Congress gave federal courts exclusive jurisdiction to hear prize cases, arguably the most important category of admiralty and maritime cases because of their relation to the conduct of war and foreign relations. Congress also gave federal courts jurisdiction to hear instance cases involving private wrongs and maritime commerce governed by the general law maritime. During the nineteenth century, Congress expanded the scope of admiralty and maritime jurisdiction to include matters relating to the inland waterways, and the Supreme Court upheld this expansion as constitutional. In the twentieth century, the Court interpreted Article III’s grant of jurisdiction to include authority for federal courts to incorporate general maritime law as a form of preemptive federal law in most cases. Thus, today federal courts exercise broad authority over cases falling within their admiralty and maritime jurisdiction. The federal courts’ admiralty and maritime jurisdiction has little, if any, relevance to the application of modern customary international law in U.S. courts. It is possible that some cases involving such law could arise on the high seas or navigable waters of the United States, but the distinctive feature of modern customary international law is that it regulates how nations treat their own citizens in their own territory. Cases of this kind fall well outside the federal courts’ admiralty and maritime jurisdiction.

D In short, Article III of the Constitution was not originally designed to address judicial enforcement of uncodified modern customary international law against foreign states for acts taken in their own territory

148

148 Modern Customary International L aw

against their own citizens. As explained in Chapters 2 through 5, Article III was designed to facilitate judicial enforcement of the three traditional branches of the law of nations. Diversity jurisdiction enabled merchants from different jurisdictions to adjudicate their disputes in federal court. Various heads of jurisdiction—​including diversity, admiralty, and ambassadorial jurisdiction—​enabled foreign sovereigns to assert their rights under the law of state-​state relations. Admiralty and maritime jurisdiction permitted federal courts to hear both public and private maritime disputes under the law of state-​state relations and the law maritime. More broadly, Article III contains no provision authorizing federal courts to hear cases with the party alignment characteristic of suits seeking to enforce modern customary international law—​namely, suits between a nation and its own citizens, or between citizens of the same nation. At the time the Constitution was adopted, there was no such thing as modern customary international law, by which is meant rules that regulate how a nation governs its own citizens within its own territory. Although the Constitution was designed to facilitate judicial enforcement of the three traditional branches of the law of nations in varying ways, it was not designed to facilitate judicial enforcement of international obligations owed by a nation to its own citizens. For these reasons, the status of modern customary international law in U.S. courts cannot be determined simply by analogy to the status of any of the traditional branches of the law of nations in U.S. courts. In the last several decades, scholars have vigorously debated whether courts may apply modern customary international law as a form of federal common law without authorization from the political branches. Chapter 7 describes this debate, and explains that it has proceeded from a mistaken premise—​namely, that the Constitution treats all forms of customary international law in the same way. As Chapters 8, 9, and 10 explain, the status of modern customary international law in federal courts—​like the status of any other branch of the law of nations—​turns on an independent evaluation of how the particular obligations it imposes interact with the text and structure of the Constitution.

  149

7

The Inadequacy of Existing Theories of Customary International Law and the Constitution

The emergence of modern customary international law in the twentieth century has posed challenges for courts and commentators. Because the Constitution was not designed to interact with such law, it is unclear whether or how such law applies in U.S. courts. Some scholars argue that courts should apply all rules of customary international law as federal law regardless of whether the political branches have adopted them through normal lawmaking procedures. This approach is usually called the “modern position.” Other scholars argue that courts should not apply any rule of customary international law until the federal political branches have adopted it as federal law or relevant state actors have adopted it as state law. This approach is usually called the “revisionist position.” Still other scholars suggest an “intermediate position” that U.S. courts should apply customary international law as non-​binding general law, much as they did in the nineteenth century. None of these positions adequately takes account of the differences between modern customary international law and the three traditional branches of the law of nations, and the distinct ways in which each type of international law has interacted with the Constitution. In order to take account of these differences, one must evaluate how each type of customary international law interacts with the precise provisions of the Constitution and the structure of government they create. The modern position, the revisionist position, and the intermediate position all err in assuming that the Constitution interacts with all forms The Law of Nations and the United States Constitution. Anthony J. Bellia Jr. and Bradford R. Clark. © Oxford University Press 2017. Published 2017 by Oxford University Press.

150

150 Modern Customary International L aw

of customary international law in a single way. As discussed in prior chapters, the Supreme Court has understood the Constitution to interact with each of the three traditional branches of the law of nations in distinct ways depending on the branch at issue and how it is to be applied. Because modern customary international law postdates the Constitution by over a century and differs in material respects from all three traditional branches of the law of nations, there is no ready-​made solution to the problem of how modern customary international law interacts with the Constitution. All three competing positions err in treating customary international law as a monolithic whole and in proposing a one-​size-​fits-​all approach to such law under the Constitution. These all-​or-​nothing approaches to the status of customary international law in U.S. courts fit poorly with the design of the Constitution and the more nuanced ways in which it has interacted with different kinds of international law. Throughout U.S. history, as explained, federal courts have applied (or declined to apply) each branch of the law of nations on the basis of its own unique relationship with the text of the Constitution and its allocation of powers. The Court has not treated the Constitution as amenable to any single, overarching answer to how customary international law applies in U.S. courts. Rather, in order to determine whether (and how) any given rule of customary international law applies in U.S. courts, one must ascertain the way in which the rule interacts with the Constitution’s text and structure in light of how the rule is sought to be applied.

I The modern position maintains that U.S. courts should treat all customary international law as a form of supreme federal common law, regardless of whether the political branches have adopted it pursuant to federal lawmaking procedures. On this view, customary international law both preempts contrary state law and supports federal question jurisdiction in federal court without any formal adoption by the political branches.1 1. See, e.g., Lea Brilmayer, Federalism, State Authority, and the Preemptive Power of International Law, 1994 Sup. Ct. Rev. 295, 295; Ryan Goodman & Derek P. Jinks, Filartiga’s Firm Footing: International Human Rights and Federal Common Law, 66 Fordham L. Rev. 463, 472 (1997); Louis Henkin, International Law as Law in the United States, 82 Mich. L. Rev. 1555 (1984); Harold Hongju Koh, Is International Law Really State Law?, 111 Harv. L. Rev. 1824, 1826–​27 (1998); Beth Stephens, The Law of Our Land: Customary International Law as Federal Law After Erie, 66 Fordham L.  Rev. 393, 397 (1997). For a more cautious argument that federal courts may “make federal common law interstitially in the area of foreign affairs to

  151



The Inadequacy of Existing Theories

151

A Proponents of this position often cite a brief essay written by Professor Philip Jessup one year after the Supreme Court’s landmark decision in Erie. Erie famously declared that “[e]‌xcept in matters governed by the Federal Constitution or by Acts of Congress, the law to be applied in any case is the law of the State.”2 Jessup argued that “Mr. Justice Brandeis was surely not thinking of international law when he wrote his dictum.”3 In Jessup’s view, “[i]t would be as unsound as it would be unwise to make our state courts our ultimate authority for pronouncing the rules of international law.”4 Accordingly, Jessup concluded that “[a]ny question of applying international law in our courts involves the foreign relations of the United States and can be brought within a federal power.”5 Twenty-​five years later, the Supreme Court cited Professor Jessup’s essay in Banco Nacional de Cuba v. Sabbatino to support the proposition that the Constitution requires state and federal courts to apply the act of state doctrine in its traditional formulation and to treat it “as an aspect of federal law.”6 The Restatement (Third) of Foreign Relations Law, in turn, cited Sabbatino not for this proposition, but for two very different propositions—​first, that “[i]‌nternational law … [is] law of the United States,” and, second, that “[c]ourts in the United States are bound to give effect to international law.”7 These were curious conclusions to draw from Sabbatino because the Sabbatino Court had determined that “international law does not require application of the [act of state] doctrine,”8 and “that the act of state doctrine is applicable even if international law has

serve important federal interests,” see Daniel J. Meltzer, Customary International Law, Foreign Affairs, and Federal Common Law, 42 Va. J. Int’l L. 513, 536 (2002). 2. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938). 3. Philip C. Jessup, The Doctrine of Erie Railroad v. Tompkins Applied to International Law, 33 Am. J. Int’l L. 740, 743 (1939). 4. Id. 5. Id. 6. 376 U.S. 398, 425 (1964). 7. Restatement (Third) of the Foreign Relations Law of the United States §§ 111(1), (3), reporters’ notes 1, 3 (Am. Law Inst. 1987)  [hereinafter Restatement (Third) of Foreign Relations]. 8. Sabbatino, 376 U.S. at 421.

152

152 Modern Customary International L aw

been violated.”9 Nonetheless, a reporters’ note written by Professor Louis Henkin highlighted the Sabbatino Court’s discussion of Jessup’s views and claimed that “the implications of Sabbatino” support “the modern view … that customary international law in the United States is federal law and its determination by the federal courts is binding on the State courts.”10 In a contemporaneous law review article, Professor Henkin spelled out this argument in greater detail. Although acknowledging that the “Act of State doctrine is not a principle of international law, but instead a principle of judge-​made, domestic ‘foreign relations law,’ ” Henkin nonetheless argued that Sabbatino supports the modern position on the following grounds: [I]‌n deciding that the Act of State doctrine is federal law, binding on the states and not within the scope of Erie v. Tompkins, the [Sabbatino] Court invoked Judge Jessup’s views rejecting the applicability of Erie to international law. As a result, there is now general agreement that international law, as incorporated into domestic law in the United States, is federal, not state law; that cases arising under international law are “cases arising under … the Laws of the United States” and therefore are within the judicial power of the United States under article III of the Constitution; that principles of international law as incorporated in the law of the United States are “Laws of the United States” and supreme under article VI; that international law, therefore, is to be determined independently by the federal courts, and ultimately by the United States Supreme Court, with its determination binding on the state courts; and that a determination of international law by a state court is a federal question subject to review by the Supreme Court.11 No Supreme Court opinion has ever embraced Professor Henkin’s understanding of Sabbatino. Nonetheless, largely in reliance on Henkin’s account, many international law scholars have come to regard the modern position as “an ‘unquestioned’ principle of the law of foreign relations.”12 9. Id. at 431. 10. Restatement (Third) of Foreign Relations, supra note 7, § 111 reporters’ note 3. 11.  Henkin, supra note 1, at 1559–​ 60 (alteration in original) (footnotes omitted) (citing Restatement (Third) of Foreign Relations, supra note 7, § 111, reporters’ note 3). 12. Brilmayer, supra note 1, at 295; see also Koh, supra note 1, at 1825 (describing the modern position as “the hornbook rule”). See also William S. Dodge, Customary International

  153



The Inadequacy of Existing Theories

153

As discussed below, the modern position provoked a challenge by so-​ called revisionist scholars, who claimed that the Supreme Court’s decision in Erie precludes federal courts from using customary international law to preempt contrary state law. Erie held that “[e]‌xcept in matters governed by the Federal Constitution or by Acts of Congress, the law to be applied in any case is the law of the State.”13 In defending the modern position against the revisionist challenge, Professor Harold Koh responded that Erie is inapplicable to the enforcement of customary international law in federal courts because the Constitution grants the federal government exclusive power over foreign affairs.14 In addition, Professor Koh, along with Professor Gerald Neuman, invoked language from pre-​Erie Supreme Court opinions—​such as The Paquete Habana—​stating that “[i]nternational law is part of our law.”15 They argued that only the modern position can account for such language.16 Finally, they stressed that the revisionist position would prevent federal courts from applying important categories of uncodified customary international law. For example, Professor Neuman cited consular immunity “as an uncomplicated example to illustrate the need for federal common law in domestic litigation.”17 Similarly, Professor Koh invoked the traditional immunity of visiting heads of state to demonstrate the need to treat customary international law as federal common law.18 Notwithstanding these arguments, the modern position lacks support in historical understandings of the Constitution and in Supreme Court precedent. As noted, the modern position places heavy reliance on Sabbatino. The Court’s actual decision, however, contradicts the modern position.

Law in the Supreme Court, 1946–​ 2000, in International Law in the U.S. Supreme Court: Continuity and Change 353, 363 (David L. Sloss, Michael D. Ramsey & William S. Dodge eds., 2011) (arguing that Sabbatino endorsed Jessup’s position, namely, that “cases arising under customary international law were within the judicial power of the federal courts under Article III, and customary international law was supreme over state law under the Supremacy Clause of Article VI”). 13. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938). 14. Koh, supra note 1, at 1831–​32. 15. 175 U.S. 677, 700 (1900). 16. See Koh, supra note 1, at 1828 n.23; Gerald L. Neuman, Sense and Nonsense about Customary International Law: A Response to Professors Bradley and Goldsmith, 66 Fordham L. Rev. 371, 374–​75 (1997). 17. Neuman, supra note 16, at 391. 18. Koh, supra note 1, at 1829.

154

154 Modern Customary International L aw

As explained in Chapter 4, Sabbatino refused to enforce an asserted rule of customary international law against Cuba because the act of state doctrine prohibited the Court from doing so. Specifically, the Sabbatino Court refused even to consider whether Cuba had violated a rule of customary international law against expropriating private property because separation of powers principles required the Court to adhere to the act of state doctrine in its traditional formulation. To be sure, the Court expressed some skepticism as to whether the rule advocated actually amounted to a rule of customary international law. But the Court also deemed it unnecessary to resolve that question. Assuming the validity of the rule in question, the Court held that the act of state doctrine applies “even if the complaint alleges that the taking violates customary international law.”19 This statement reveals that the Sabbatino Court regarded the act of state doctrine as federal law, but did not consider rules of customary international law such as the one at issue in Sabbatino to be federal law. The actual opinion thus contradicts Professor Henkin’s reading of Sabbatino as establishing “that customary international law in the United States is federal law.”20 If the Court had regarded both customary international law and the act of state doctrine as federal law, the Court would have written a different opinion. In particular, the Court would have addressed why one form of federal law (the act of state doctrine according to the Sabbatino Court) trumps another form of federal law (norms of customary international law according to Professor Henkin). The Court’s opinion contains no such explanation. Rather, the Court simply applied the act of state doctrine and, in accordance with its long-​ standing practice in earlier cases, refused to use uncodified principles of the law of nations to hold another nation accountable for its alleged misconduct. To be sure, Sabbatino did rely on Professor Jessup’s essay, but not for the proposition that modern customary international law is federal law. The Court cited Jessup to support the distinct proposition that the act of state doctrine is federal law. The Court understood the act of state doctrine to arise “out of the basic relationships between branches of government in a system of separation of powers.”21 Because the doctrine stemmed from the constitutional structure and thus had “ ‘constitutional’ underpinnings,”22

19. Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 428 (1964). 20. Restatement (Third) of Foreign Relations, supra note 7, § 111 reporters’ note 3. 21. Sabbatino, 376 U.S. at 423. 22. Id.

  155



The Inadequacy of Existing Theories

155

the Sabbatino majority considered it “fair to assume that the Court did not have rules like the act of state doctrine in mind when it decided Erie R. Co. v. Tompkins.”23 Because the act of state doctrine is best understood as “a consequence of domestic separation of powers,”24 the states have no more authority to alter the doctrine than any other aspect of the constitutional design. In other words, Erie was inapplicable because the rule of decision in Sabbatino was derived from the Constitution rather than unwritten or general law. It was in this context that the Sabbatino Court pointed to Professor Jessup’s article as providing a useful analogy. According to the Court: Professor Philip C.  Jessup … recognized the potential dangers were Erie extended to legal problems affecting international relations. He cautioned that rules of international law should not be left to divergent and perhaps parochial state interpretations. His basic rationale is equally applicable to the act of state doctrine.25 Proponents of the modern position read this passage as endorsing the view that modern rules of customary international law limiting traditional sovereign rights should be regarded as federal law. There are several difficulties with this reading, however. At the time Professor Jessup wrote his article (1939), it was not yet established that international law included modern rules restricting the power of nations to govern their own citizens within their own territories.26 Rather, when Jessup wrote, such law was primarily concerned with state-​state relations—​that is, protecting traditional rights of sovereigns and defining obligations of states vis-​à-​vis one another. Thus, understood in historical context, Jessup’s article was arguing that rules derived from the law of state-​state relations should be regarded as federal law rather than “left to divergent and perhaps parochial state interpretations.”27 As

23. Id. at 425. 24. W.S. Kirkpatrick & Co. v. Envtl. Tectonics Corp., 493 U.S. 400, 404 (1990). 25. Sabbatino, 376 U.S. at 425. 26. The emergence of modern customary international law, as explained in Chapter 6, is usually traced to the signing of the United Nations Charter in 1945 and the prosecution and the establishment of the Nuremberg Tribunal shortly thereafter to prosecute German officials for committing atrocities against Germans (and others) in Germany (and elsewhere). 27.  Sabbatino, 376 U.S.  at 425. We agree with this argument for the reasons set forth in Chapter 4.

156

156 Modern Customary International L aw

discussed in Chapters 3 and 4, such rules included rights to neutral use of the high seas, diplomatic immunity, and territorial sovereignty. It is thus not surprising that the Sabbatino Court invoked the article to support its application of the act of state doctrine because the doctrine reflects long-​ standing judicial respect for the territorial sovereignty of foreign nations under the law of state-​state relations. The Court proceeded to apply the doctrine simultaneously to uphold territorial sovereignty and to reject the application of customary international law to hold a recognized foreign sovereign accountable for acts taken within its own territory.28 In short, proponents of the modern position have taken the Sabbatino Court’s reliance on Jessup’s essay out of context. They have both ignored the Court’s refusal to apply a rule of customary international law to curtail Cuba’s territorial sovereignty and anachronistically claimed that Jessup was referring to modern rules of customary international law rather than to the traditional law of state-​state relations.

B In addition to relying on Sabbatino, proponents of the modern position invoke founding-​era statements—​and more recent judicial statements as well—​to the effect that the law of nations is “part of the law of the land” or “part of our law.”29 As discussed in Chapter 4, such statements appear 28. It is noteworthy that Justice Byron White’s dissent in Sabbatino understood the majority opinion to prevent federal courts from enforcing customary international law against Cuba without express authorization from Congress. Justice White was “dismayed that the Court has, with one broad stroke, declared the ascertainment and application of international law beyond the competence of the courts of the United States in a large and important category of cases.” Id. at 439 (White, J., dissenting). He expressed disappointment that the Court declared “that the acts of a sovereign state with regard to the property of aliens within its borders are beyond the reach of international law in the courts of this country.” Id. As he read the Court’s opinion, Sabbatino meant that “[h]‌owever clearly established that [international] law may be, a sovereign may violate it with impunity, except insofar as the political branches of the government may provide a remedy.” Id. If Sabbatino stands for the proposition that modern customary international law is federal common law—​as proponents of the modern position have argued—​then Justice White’s dissent makes little sense. 29.  See, e.g., Koh, supra note 1, at 1825 n.8, 1828 n.23; Jordan J. Paust, In Their Own Words:  Affirmations of the Founders, Framers, and Early Judiciary Concerning the Binding Nature of the Customary Law of Nations, 14 U.C. Davis J. Int’l L. & Pol’y 205 passim (2008); Stephens, supra note 1, at 416–​17 & nn.113 & 118. Such statements, it is argued, demonstrate that the founders expected federal courts to apply the customary law of nations as preemptive federal law. See Jordan J. Paust, International Law as Law of the United States 7–​8 (2d ed. 2003) (arguing that early practice demonstrates the understanding that courts may enforce customary international law as preemptive federal law); Jordan J. Paust, Customary

  157



The Inadequacy of Existing Theories

157

in early grand jury instructions and related documents,30 as well as in a few Supreme Court opinions. These references, however, were all made in the context of upholding the sovereign rights of foreign states under the law of state-​state relations,31 long before modern rules of customary international law emerged in the twentieth century to restrict such rights. Even when made, such statements had no application to other parts of the law of nations, such as the law merchant. Thus, taken in context, the statements in question support only the narrower conclusion that the law of state-​state relations “is part of our law,” but say nothing about the status of other branches of the law of nations (which were not at issue) or modern customary international law (which did not yet exist). Because the modern position relies so heavily upon such statements, it is worth pausing to consider them in some detail. The grand jury instructions that several Supreme Court justices delivered in the 1790s exemplify the limited meaning of these statements. The statements in question referred to judicial respect for the rights of foreign sovereigns under the law of state-​state relations. They said nothing about modern customary international law because such law did not yet exist. In the face of war between Britain and France, President George Washington adopted a policy of neutrality in accordance with the law of state-​state relations. In his famous Neutrality Proclamation of 1793, President Washington declared that the United States would remain neutral in the war between Britain and France and gave “instructions to those officers to whom it belongs, to cause prosecutions to be instituted against all persons, who shall … violate the law of nations, with respect to the powers at war.”32 Congress had established various federal statutory crimes in 1790, but did not include violations of U.S.  neutrality among

International Law and Human Rights Treaties Are Law of the United States, 20 Mich. J. Int’l L. 301, 301 (1998) (“The Founders clearly expected that customary law of nations was binding, was supreme law … and would be applicable in United States federal courts.”). 30. See Anthony J. Bellia Jr. & Bradford R. Clark, The Federal Common Law of Nations, 109 Colum. L. Rev. 1, 47–​55 (2009). 31.  See Mark Weston Janis, The American Tradition of International Law:  Great Expectations 1789–​1914, at 62 (2004) (observing that Marshall Court opinions referring to international law as “part of the law of the United States[,]‌… most famously involved ticklish questions about respecting foreign sovereigns”). 32. George Washington, Proclamation of Neutrality: Philadelphia, April 22, 1793, in 32 The Writings of George Washington 430, 430–​31 (John C. Fitzpatrick ed., 1931).

158

158 Modern Customary International L aw

them.33 Accordingly, federal officers could only prosecute violations of the Neutrality Proclamation, if at all, as common law crimes. Several Supreme Court justices enthusiastically took up the cause in support of U.S. neutrality. For example, in charging a federal grand jury in Richmond, Virginia, Chief Justice John Jay explained that the circuit court had “cognizance only of offences against the laws of the United States,” and that “[t]‌he Constitution, the statutes of Congress, the laws of nations, and treaties constitutionally made compose the laws of the United States.”34 Accordingly, Jay charged that “[i]f in this district you should find any persons engaged in fitting out privateers or enlisting men to serve against either of the belligerent powers, and in other respects violating the laws of neutrality, you will present them.”35 In directing grand jurors to make presentments for common law crimes premised upon violations of the law of nations, Jay stated that the obligation to do so derived in part from the deference that courts and individuals owed to the political branches’ exclusive powers over peace, war, and reprisals.36 For similar reasons, Justice James Wilson charged a federal grand jury in Pennsylvania that “the common 33. See Crimes Act of 1790, ch. 9, 1 Stat. 112. 34. John Jay, Charge to Grand Jury, Richmond, Virginia (May 22, 1793), reprinted in 3 The Correspondence and Public Papers of John Jay 478, 478–​79 (Henry P.  Johnston ed., New York, G.P. Putnam’s Sons 1891) [hereinafter Jay, Public Papers]. 35. Id. at 483. 36.  By “infractions,” Jay necessarily meant infractions attributable to the United States under the law of nations. But he did not mean that criminal offenses attributable to other nations for acts taken in their own territory were part of the U.S. code of criminal jurisprudence. At the time, the law of nations prohibited the courts of one nation from hearing a criminal prosecution for actions taken within the territorial jurisdiction of another nation. See Anthony J. Bellia Jr. & Bradford R. Clark, The Alien Tort Statute and the Law of Nations, 78 U. Chi. L. Rev. 445, 482–​85 (2011). If the law of nations was “part” of U.S. law, so too was this prohibition. In Jay’s view, the Constitution’s allocation of powers required individuals, courts, and grand jurors to respect the rights of foreign sovereigns and leave retaliatory action to the political branches. He thus asked the grand jury to indict individuals who usurped congressional authority by breaching U.S. neutrality toward the belligerent powers. “Questions of peace and war and reprisals and the like do not belong to courts of justice, nor to individual citizens, nor to associations of any kind, and for this plain reason: because the people of the United States have been pleased to commit them to Congress.” Jay, Public Papers, supra note 34, at 483–​84. Although the Court eventually held that federal courts lacked constitutional authority to adjudicate federal crimes that Congress had not created by statute, Jay’s immediate goal was to punish individuals whose actions threatened to place the United States in breach of the law of state-​state relations. By encouraging the grand jury to charge such individuals with a crime, Jay explicitly sought to preserve the constitutional prerogatives of the political branches or, as he put it, “of those who annul violated treaties, order reprisals, or declare

  159



The Inadequacy of Existing Theories

159

law” had been “received in America,” that “the law of nations” to “its full extent is adopted by her,” and that “infractions of that law form a part of her code of criminal jurisprudence.”37 Based on Wilson’s charge, the grand jury indicted Gideon Henfield for agreeing to serve as the captain of a French privateer charged with attacking British ships.38 At trial, Henfield’s counsel protested the lack of a federal statute authorizing the prosecution. In charging the petit jury, Wilson responded that “the acts of hostility committed by Gideon Henfield are an offence against this country.”39 In addition, Wilson explained that “[a]‌s a citizen of the United States, [Henfield] was bound [by the law of nations] to act no part which could injure the nation; he was bound to keep the peace in regard to all nations with whom we are at peace.”40 Notwithstanding Wilson’s instructions, the jury acquitted Henfield, forcing Congress to enact a statutory crime punishing breaches of neutrality.41 Henfield’s Case highlights some of the early confusion regarding the relationship between the law of state-​state relations and the federal system established by the Constitution. As President Washington recognized, the United States had an obligation under the law of state-​state relations to remain neutral in the conflict between Britain and France and therefore to prevent U.S. citizens from aiding either of the belligerents. Although criminal punishment could satisfy this obligation, neither the law of nations alone nor the President’s Proclamation could authorize criminal liability in the United States. In other words, although the law of nations required nations to remain neutral, such law did not automatically make breaches of neutrality a domestic crime in any given nation. Rather, how criminal offenses were defined and punished was strictly a matter of local law at the time, not one of general law.42 Thus, the question was whether

war.” Id. at 485. In other words, Jay wanted federal courts to recognize a common law crime against the United States that would enable federal courts to uphold the rights of foreign sovereigns, and thereby ensure that constitutional authority over peace, war, and reprisals would remain where it belonged—​in the political branches. 37. Henfield’s Case, 11 F. Cas. 1099, 1106–​07 (C.C.D. Pa. 1793) (No. 6360). 38. Id. at 1115–​17. 39. Id. at 1120. 40. Id. 41. See Act of June 5, 1794, ch. 50, § 1, 1 Stat. 381, 381–​82. 42. Thus, the debate about federal common law crimes at this time was not about whether the law of nations “criminalized” certain conduct. See, e.g., David L. Sloss, Michael D. Ramsey

160

160 Modern Customary International L aw

there was any basis in local U.S. law for treating a breach of neutrality as a federal crime.43 As noted, Justice Wilson’s grand jury charge stated that “the common law” had been “received in America,” that “the law of nations” to “its full extent is adopted by her,” and that “infractions of that law form a part of her code of criminal jurisprudence.”44 In other words, he argued that the United States had received the common law and that federal courts had authority to adjudicate common law crimes against the United States (a matter of local U.S. law) for violation of the law of nations. These views, however, did not prevail. Although the individual states had received the common law (including common law crimes and the law of nations), the United States as a whole had not done so, and the question in Henfield’s Case was whether federal courts could adopt common law crimes on their own for the nation. The issue was subsequently debated between Federalists and Jeffersonian Republicans in the months preceding Jefferson’s election in 1800. James Madison argued that there could be no federal common law crimes because Congress had not adopted the common law for the United States as a whole, and in any event such adoption would exceed Congress’s enumerated powers.45 In 1812, the Supreme Court held that federal courts lacked authority to adjudicate and punish federal common law crimes, and—​apparently referring to the earlier public debate—​stated that the question had “been long since settled in public opinion.”46 According to the Court, before the United States may prosecute an offender, “[t]‌he

& William S. Dodge, International Law in the Supreme Court to 1860, in International Law in the U.S. Supreme Court: Continuity and Change 7, 26 (David L. Sloss, Michael D. Ramsey & William S. Dodge eds., 2011) (“Among other things, federal prosecutors invoked the law of nations, which (they said) made violating neutrality criminal.”). Instead, the debate was over whether federal courts could apply local U.S. common law to punish violations of the law of nations as crimes against the United States. 43. Neither the justices nor the President suggested that the President possessed constitutional authority to adopt federal crimes on his own, so the Neutrality Proclamation could not support Henfield’s prosecution. 44. Henfield’s Case, 11 F. Cas. at 1106–​07. 45. See Letter from James Madison to Thomas Jefferson (Jan. 18, 1800), in 6 The Writings of James Madison 347, 380 (Gaillard Hunt ed., 1906) (arguing that if Congress could adopt the common law, then its power would “no longer [be] under the limitations marked out in the Constitution” and it “would be authorized to legislate in all cases whatsoever”); see also Wheaton v. Peters, 33 U.S. (8 Pet.) 591, 658 (1834) (“The common law could be made a part of our federal system, only by legislative adoption.”). 46. United States v. Hudson & Goodwin, 11 U.S. (7 Cranch) 32, 32 (1812).

  161



The Inadequacy of Existing Theories

161

legislative authority of the Union must first make an act a crime, affix a punishment to it, and declare the Court that shall have jurisdiction of the offence.”47 Four years later, the Court adhered to this position in a case involving a federal common law prosecution of an American for forcibly rescuing a prize in violation of the law of nations.48 The Supreme Court’s rejection of federal common law crimes to enforce the law of nations did not mean that the law of state-​state relations could never apply in U.S. courts. The constitutional problem with the early grand jury charges was not that courts sought to uphold the rights of foreign nations under the law of state-​state relations. The problem, instead, was that federal courts attempted to use common law crimes (a matter traditionally subject to local law) as a means of doing so. As explained in Chapters 3 and 4, the Court regularly applied the law of state-​state relations—​in cases where plaintiffs had an authorized local right of action—​to uphold the rights of recognized foreign nations in U.S. courts. Courts upheld such rights not because the law of nations was itself a form of federal law, but because the Constitution’s allocation of specific war and foreign relations powers to the political branches required them to do so. An important example of this standard use of the law of state-​state relations occurred in cases of admiralty and maritime jurisdiction. In such actions, as explained in Chapter 5, Congress had authorized federal courts to hear traditional causes of action belonging to courts of admiralty.49 Accordingly, early federal courts routinely applied such law in ways that were necessary to uphold the constitutional prerogatives of the political branches over war and foreign relations. The Supreme Court’s iconic statements referring to the law of nations as “part of the law of land” or “part of our law” can only be properly understood in this context. Three such statements have received considerable attention. In 1815, in The Nereide, the Court referred to the law of nations as “part of the law of the land.”50 In The Paquete Habana, the Court stated 47. Id. at 34. 48. United States v. Coolidge, 14 U.S. (1 Wheat.) 415 (1816). 49.  See Act of Sept. 29, 1789, ch. 21, 1 Stat. 93, 93–​94 (providing that, in cases of equity or admiralty and maritime jurisdiction, “the forms and modes of proceedings … shall be according to the course of the civil law”); Act of May 8, 1792, ch. 36, 1 Stat. 275, 276 (providing that, in cases “of equity” and “of admiralty and maritime jurisdiction,” the “forms and modes of proceeding” were to be “according to the principles, rules and usages which belong to courts of equity and to courts of admiralty respectively, as contradistinguished from courts of common law”). 50. 13 U.S. (9 Cranch) 388, 423 (1815).

162

162 Modern Customary International L aw

that “[i]‌nternational law is part of our law.”51 Finally, in Sabbatino, the Court, citing both The Nereide and The Paquete Habana, stated “that United States courts apply international law as part of our own in appropriate circumstances.”52 Proponents of the modern position characterize these statements as evidence that modern customary international law should be considered a form of federal law. All of these statements, however, were made in cases upholding the rights of foreign sovereigns derived from the law of state-​state relations. None applied modern customary international law to hold foreign sovereigns accountable for violations of such law. Accordingly, taken in context, these statements support only the more limited proposition that the rights of recognized foreign sovereigns under the law of state-​state relations are “part of our law.” As explained in Chapters 3 and 4, upholding these rights was necessary to preserve the Constitution’s exclusive allocation of recognition, war, and other foreign relations powers to the political branches. These statements either say nothing about modern customary international law because it did not yet exist, or contradict the modern position because they prohibit courts—​without political branch authorization—​from overriding the traditional rights of foreign sovereigns (as modern customary international law seeks to do). In other words, these iconic statements about international law merely confirm the Supreme Court’s long-​held position that courts must enforce the rights of foreign sovereigns under the law of state-​state relations as a necessary means of upholding the Constitution’s allocation of powers. Although we have examined these cases in other chapters, it is worth revisiting them here briefly because proponents of the modern position have relied so heavily upon them. As discussed in Chapter 4, The Nereide53 arose out of the War of 1812 (between the United States and Britain) and held a U.S.  privateer liable for violating the neutral rights of Spain by improperly capturing goods belonging to a neutral (Spanish) individual found on an enemy (English) vessel. Under the law of state-​state relations, Spain had a right to neutral use of the high seas during the conflict, and the Supreme Court upheld this right notwithstanding the privateer’s assertion that “Spain … would subject American property, under similar circumstances, to confiscation.”54 The Court made clear that “retaliating” against 51. 175 U.S. 677, 700 (1900). 52. Banco Nacional de Cuba v. Sabbatino, 376 U.S. 393, 423 (1964). 53. The Nereide, 13 U.S. (9 Cranch) 388 (1815). 54. Id. at 422.

  163



The Inadequacy of Existing Theories

163

Spain or its subjects for any such policy “is a political not a legal measure,” and “is for the consideration of the government not of its Courts.”55 Accordingly, the Court reserved to the political branches whether, when, and how to retaliate against Spain, and simply upheld Spain’s sovereign rights under the law of state-​state relations. It was in this context of explaining the proper allocation of powers between the political branches and the courts that the Nereide Court made its famous statement about the law of nations being part of the law of the land. According to the Court: If it be the will of the government to apply to Spain any rule respecting captures which Spain is supposed to apply to us, the government will manifest that will by passing an act for the purpose. Till such an act be passed, the Court is bound by the law of nations which is a part of the law of the land.56 In context, this statement confirmed the Court’s understanding that—​ under the Constitution’s allocation of powers—​the judiciary must apply the law of state-​state relations to uphold the rights of a neutral nation until Congress and the President direct otherwise. The same analysis sheds light on the Supreme Court’s famous statement in The Paquete Habana.57 The case, as explained, arose during the Spanish-​American War when U.S.  naval forces captured two Spanish fishing vessels headed to Cuba, a Spanish colony at the time. U.S. forces sought to condemn the vessels and their cargo in a federal admiralty court as prizes of war. Historically, the laws of war (part of the law of state-​state relations) gave opposing nations an unrestricted right to capture ships of the other nation, including fishing vessels. After examining the current state of the law, however, the Supreme Court concluded that an exemption for fishing vessels had “gradually ripen[ed] into a rule of international law,”58 and applied this rule to restore the captured Spanish vessels and their cargoes to their original owners.

55. Id. 56. Id. at 423. 57. 175 U.S. 677 (1900). 58. Id. at 686.

164

164 Modern Customary International L aw

In explaining its decision, The Paquete Habana Court again indicated that the judiciary had a duty to uphold the rights of foreign sovereigns under the law of state-​state relations unless the political branches instructed otherwise. According to the Court: International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for their determination. For this purpose, where there is no treaty, and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations … .59 Significantly, the Court specifically tied its use of “international law” to the determination of “questions of right.” This is not surprising because public international law in 1900—​also known as the law of state-​state relations—​ concerned only “questions of right” between nations. By this time, public international law had come to recognize the right of nations to engage in coastal fishing even during war. Accordingly, the Court applied customary international law to uphold Spain’s right in the absence of a “controlling executive or legislative act”60 to the contrary. This allocation of powers approach also explains Sabbatino’s statement “that United States courts apply international law as part of our own in appropriate circumstances.”61 As discussed in Chapter 4, following Cuba’s confiscation of American sugar companies, Cuba sought to recover the proceeds from sugar sales claimed by the original owners. The Supreme Court applied the act of state doctrine to uphold Cuba’s claim to the proceeds notwithstanding the owners’ assertion that Cuba’s expropriation violated a norm of customary international law. The act of state doctrine was originally derived from the law of state-​state relations because that branch of the law of nations traditionally included the right of recognized nations to govern within their own territory without interference from other nations. By 1964, however, international law recognized exceptions to such territorial sovereignty. Nonetheless, the Sabbatino Court adhered

59. Id. at 700. 60. Id. The Court also referred to a controlling “judicial decision,” which appears to refer to judicial precedent ascertaining the content of international law. Id. 61. Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 423 (1964) (emphasis added).

  165



The Inadequacy of Existing Theories

165

to the act of state doctrine and applied it to shield Cuba’s conduct from scrutiny in U.S. courts on separation of powers grounds. According to the Court, the judiciary may not examine the validity of a taking of property within its own territory by a foreign sovereign government, extant and recognized by this country at the time of suit, in the absence of a treaty or other unambiguous agreement regarding controlling legal principles, even if the complaint alleges that the taking violates customary international law.62 As discussed in Chapter  4, the Sabbatino Court explained that the “act of state doctrine” has “ ‘constitutional’ underpinnings”63 because it “arises out of the basic relationships between branches of government in a system of separation of powers.”64 These relationships required courts to apply the law of state-​state relations to uphold the rights of recognized foreign sovereigns, but prohibited courts from applying norms of customary international law (such as the one asserted in Sabbatino) to override the territorial sovereignty of recognized foreign sovereigns. In other words, although The Nereide and The Paquete Habana establish that “United States courts apply international law as a part of our own in appropriate circumstances,”65 Sabbatino made clear that U.S. courts cannot invalidate the acts of a recognized foreign government “even if international law has been violated.”66 The modern position misreads the Supreme Court’s statements in these cases by incorrectly assuming that modern customary international law and the traditional law of state-​state relations are interchangeable under the Constitution. The modern position reasons that because U.S courts traditionally upheld rights of foreign nations under the law of state-​ state relations, they likewise should necessarily enforce modern customary international law against such nations, even if it means restricting the traditional rights of foreign sovereigns or holding foreign sovereigns

62. Id. at 428. 63. Id. at 423. 64. Id. 65. Id. (citing The Nereide, 13 U.S. (9 Cranch) 388 (1815), and The Paquete Habana, 175 U.S. 677 (1900)). 66. Id. at 431.

166

166 Modern Customary International L aw

accountable for their violations of such law. Professors Koh and Neuman have made this argument explicitly by invoking consular immunity and head-​of-​state immunity (rights drawn from the law of state-​state relations) to demonstrate the need to treat modern customary international law as federal common law.67 This claim of equivalency represents a simple category mistake. The Constitution includes various provisions (described in Chapter 3) that require courts to uphold the traditional rights of foreign sovereigns under the law of state-​state relations. These constitutional provisions, however, do not likewise require—​or even permit—​courts to hold foreign nations accountable for actions taken in their own territories. To the contrary, as Sabbatino demonstrates, Articles I  and II reserve to the political branches any and all decisions regarding whether, when, and how to hold foreign nations accountable for their misconduct. In sum, the modern position conflates the constraints imposed by modern customary international law with the rights recognized by the law of state-​state relations and assumes that U.S. courts must treat both forms of customary international law in the same way under the Constitution. The Constitution was designed to interact with the three traditional branches of the law of nations—​the law merchant, the law of state-​state relations, and the law maritime—​in distinct ways. Accordingly, courts developed distinct lines of precedent dealing with each branch under the Constitution. Modern customary international law represents a new and distinct branch of international law unknown to the founders. How judges have historically treated one traditional branch of the law of nations—​namely, the law of state-​state relations—​cannot in itself determine how they should treat other kinds of international obligations, including rules of modern customary international law. Moreover, the judiciary’s historic practice of upholding the rights of foreign nations under the law of state-​state relations does not establish the distinct proposition that courts may hold foreign nations accountable for violating international law. Courts historically have respected the rights of foreign nations under the law of state-​state relations in order to uphold the political branches’ exclusive power to recognize foreign nations, and to avoid usurping the political branches’ exclusive power to hold other nations accountable for violating the law of nations. This rationale does not

67. See supra notes 14–​18 and accompanying text.

  167



The Inadequacy of Existing Theories

167

support judicial application of customary international law (whether the law of state-​state relations or modern customary international law) to hold other nations accountable for violating such law. Because the Constitution interacts with different kinds of international law—​and different uses of international law—​in different ways, it does not give courts license to treat all forms and uses of international law alike.

II Proponents of the revisionist position similarly treat judicial enforcement of customary international law under the Constitution as a monolithic issue. In rejecting the modern position, they argue that courts should never apply customary international law to preempt state law or support federal question jurisdiction unless the political branches have incorporated it into federal law by adopting it in an applicable statute or treaty.68 Alternatively, they maintain that courts may apply customary international law as state law to the extent that states have adopted it. Revisionists contend that judicial application of customary international law in the absence of adoption by the political branches or the states raises serious questions concerning democratic legitimacy, separation of powers, and federalism. The revisionist position relies on the fact that the Constitution designates as “the supreme Law of the Land” only the Constitution itself, as well as “Laws” and “Treaties” adopted by the political branches of the federal government pursuant to precise procedures spelled out in the document.69 According to the revisionist position, judicial application of customary international law without adoption by the political branches lacks democratic legitimacy and circumvents the constitutional procedures for creating “the supreme Law of the Land.”

A The revisionist challenge to the modern position began in 1986 when Professor Phillip Trimble argued on the basis of popular sovereignty that “courts should never apply customary international law except pursuant to

68. See, e.g., Curtis A. Bradley & Jack L. Goldsmith, Customary International Law as Federal Common Law: A Critique of the Modern Position, 110 Harv. L. Rev. 815, 870 (1997). 69. U.S. Const. art. VI, cl. 2; see Bradford R. Clark, Separation of Powers as a Safeguard of Federalism, 79 Tex. L. Rev. 1321 (2001).

168

168 Modern Customary International L aw

political branch direction.”70 Professors Curtis Bradley and Jack Goldsmith expanded the revisionist critique by invoking Erie and principles of judicial federalism. They noted that the nature of customary international law had changed over time from primarily governing “relations among nations, such as the treatments of diplomats and the rules of war,” to now governing aspects of “the relationship between a nation and its own citizens.”71 In their view, the Constitution gives federal courts no more power to apply one kind of customary international law than another. Instead, Erie “requires a domestic source of authority (the federal government or a state government) before federal courts can apply [any] such law.”72 Accordingly, Bradley and Goldsmith concluded that customary international law “should not be a source of law for courts in the United States unless the appropriate sovereign—​the federal political branches or the appropriate state entity—​makes it so.”73 Like the modern position, the revisionist position proposes a one-​size-​ fits-​all approach to the status of customary international law in U.S. courts. In doing so, it fails to recognize that the Constitution was designed to interact differently with distinct branches of the law of nations, and that the Constitution requires courts to apply different branches of the law of nations in distinct ways. In overlooking these distinctions, the revisionist position makes the same category mistake as the modern position does. Whereas the modern position claims that federal courts must apply all customary international law as preemptive federal law, the revisionist position claims that federal courts cannot apply any customary international law as preemptive federal law (absent political branch adoption). The revisionist position would thus prohibit courts not only from applying modern rules of customary international law, but also from upholding traditional rights of foreign sovereigns under the law of state-​state relations, such as head of state immunity. On this view, “federal courts cannot legitimately

70. Phillip R. Trimble, A Revisionist View of Customary International Law, 33 UCLA L. Rev. 665, 716 (1986). 71. Bradley & Goldsmith, supra note 68, at 818. 72. Id. at 853. 73. Curtis A. Bradley & Jack L. Goldsmith, Federal Courts and the Incorporation of International Law, 111 Harv. L. Rev. 2260, 2260 (1998); see also John O. McGinnis & Ilya Somin, Should International Law Be Part of Our Law?, 59 Stan. L. Rev. 1175 (2007) (arguing that the democracy deficit in international law militates against its adoption as a domestic rule of decision absent adoption through the domestic political process).

  169



The Inadequacy of Existing Theories

169

federalize” any species of customary international law in the absence of adoption by the political branches.74 This prohibition sweeps too broadly because it fails to account for the original constitutional design and the substantial body of precedent applying the law of state-​state relations as a means of upholding the Constitution’s allocation of powers. As explained in Chapters  3 and 4, Articles I and II of the Constitution were designed to enable Congress and the President to make two fundamental decisions with substantial implications for when and how U.S. courts apply the law of state-​state relations. The first decision was whether to recognize a foreign nation or government. Recognition obligated the United States—​including its courts—​to respect the sovereign rights of the nation in question. The second decision was whether to hold a foreign nation accountable for any violation of U.S. rights. Unless the political branches acted clearly to override the sovereign rights of the nation in question, U.S. courts lacked authority to do so on their own. Courts have long upheld this constitutional allocation of powers both by enforcing the sovereign rights of recognized foreign nations under the law of state-​state relations and by refraining from holding recognized foreign nations accountable for violating U.S. rights in the absence of clear instructions from the political branches to do so. Were the judiciary to depart from either of these practices, it would override the constitutional prerogatives of the political branches to make specific foreign relations decisions regarding recognition and reprisal. By allocating exclusive authority to the political branches to recognize foreign nations, on the one hand, and to conduct diplomacy, issue reprisals, authorize captures, and declare and make war, on the other hand, the Constitution required federal courts to uphold the rights of foreign sovereigns under the law of state-​state relations unless and until directed otherwise by the political branches. The revisionist position overlooks these features of the constitutional design and how they interact with the law of state-​state relations. In doing so, the revisionist position essentially treats all forms of customary international law as having the same status under the Constitution as the law merchant. Revisionists contend that because Erie held that federal courts may not apply certain forms of general law (including the law merchant) in preference to state law, federal courts may not apply any form of general

74. Bradley & Goldsmith, supra note 73, at 2270.

170

170 Modern Customary International L aw

customary international law (including the law of state-​state relations) in the absence of political branch adoption. But the Constitution was designed to interact with the law merchant and the law of state-​state relations in very different ways. The Supreme Court rejected federal judicial application of the general law merchant because nothing in the Constitution required its application and the states had exercised their constitutional authority to alter such law as a matter of local state law. The Constitution’s allocation of powers, however, required states to respect the traditional rights of recognized foreign sovereigns under the law of state-​state relations. Articles I  and II allocated to the federal political branches exclusive authority to recognize foreign nations and decide whether to override their rights as recognized sovereigns—​a constitutional allocation of powers binding on states no less than courts. On this understanding, the Constitution itself requires respect for the traditional rights of recognized foreign sovereigns under the law of state-​state relations, rendering Erie inapplicable to the enforcement of such rights. Revisionists have misconstrued Erie by conflating the law of state-​state relations and the law merchant under the Constitution, and by treating as interchangeable judicial decisions applying these distinct branches of the law of nations.

B This analysis reveals an important point about the status of the law of state-​state relations in federal courts. Although such law is not itself a form of supreme federal law, the Constitution sometimes requires courts to apply such law as a consequence of domestic separation of powers. This constitutional requirement has implications both for when the law of nations takes precedence over contrary state law and for when federal courts have subject matter jurisdiction to hear claims based on the law of nations. The key to understanding these issues is to identify precisely when the Constitution does, and does not, require courts to apply the law of nations. Revisionist scholars have failed to appreciate this nuanced relationship between the Constitution and the law of nations. Because the Constitution itself gives the political branches the power to recognize foreign nations, the exercise of that power requires state and federal courts alike to uphold the traditional sovereign rights of such nations as an incident of recognition. This is not because the law of state-​state relations constitutes federal common law. Rather, it is because the Constitution gives the political

  171



The Inadequacy of Existing Theories

171

branches the power to recognize foreign nations, and recognition necessarily includes respect for certain sovereign rights. As the Supreme Court put it in United States v. Pink, “our constitutional system” does not accord states the power to take any action that “amounts in substance to a rejection of a part of the policy underlying recognition by this nation.”75 When the Constitution requires courts and states to uphold the traditional sovereign rights of recognized foreign nations, the denial of such rights violates the Constitution and supports the exercise of federal question jurisdiction within the meaning of Article III. As explained in Chapter  3, Article III extends the judicial power of the United States to certain cases and controversies that were likely to involve the law of state-​state relations at the founding.76 In addition, Article III extended the federal judicial power to “all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority.”77 Contrary to the revisionist position, the Constitution requires states and courts to uphold certain claims of right under customary international law, and such claims therefore “arise under” federal law within the meaning of Article III and related statutes. In short, whenever the Constitution requires states and courts to uphold the rights of recognized nations, the denial of such rights raises a federal question within the Article III jurisdiction of federal courts. Federal courts had little reason to consider when the law of state-​state relations supported federal question jurisdiction in the early decades following ratification of the Constitution. Most federal court cases that involved the law of state-​state relations during this period fell within the federal courts’ admiralty and maritime jurisdiction, most notably prize cases. Article III gave federal courts jurisdiction over such cases independently

75. 315 U.S. 203, 233 (1942). In addition, as discussed in Chapter 4, the Constitution’s exclusive allocation of the powers to conduct diplomacy, as well as reprisal, captures, and war powers, to the political branches means that neither courts nor states can take it upon themselves to hold recognized foreign nations accountable for violating U.S. rights under the law of nations. Such decisions must be made by the political branches in the exercise of their exclusive authority. 76. U.S. Const. art. III, § 2 (extending the judicial power to “all Cases affecting Ambassadors, other public Ministers and Consuls”; “all Cases of admiralty and maritime Jurisdiction”; and “Controversies … between a State, or the Citizens thereof, and foreign States, Citizens or Subjects”). 77. Id.

172

172 Modern Customary International L aw

of whether they also supported federal question jurisdiction.78 Moreover, Congress did not enact a statute giving inferior federal courts general federal question jurisdiction until 1875.79 This meant that most cases brought in federal court before that time were heard under other heads of Article III jurisdiction, such as admiralty and maritime jurisdiction or diversity of citizenship jurisdiction. The First Congress did give the Supreme Court limited appellate jurisdiction to review federal questions decided in state court. Section 25 of the Judiciary Act of 1789 authorized the Supreme Court to review the final judgment of a state court of last resort when it denied the assertion of a federal right.80 Section 25 gave the Supreme Court few opportunities to consider questions regarding the law of state-​state relations, however, because such questions were generally heard not by state courts, but by lower federal courts in the exercise of their admiralty and diversity jurisdiction.81 This meant that the Supreme Court reviewed such cases, if at all, based on the same heads of jurisdiction. The lack of broad statutory jurisdiction to hear federal question cases in the early republic does not suggest—​as revisionists maintain—​that all cases involving the law of state-​state relations fell outside the scope of Article III’s arising under jurisdiction. To the contrary, the Marshall Court’s

78. See Anthony J. Bellia Jr. & Bradford R. Clark, The Federal Common Law of Nations, 109 Colum. L. Rev. 1, 56 (2009). 79.  Act of Mar. 3, 1875, § 1, 18 Stat. 470. The jurisdiction to which Article III extends the federal judicial power is generally not self-​executing; federal courts may exercise it only if Congress has authorized them to do so. Because Congress did not authorize inferior federal courts to exercise a general arising under jurisdiction until 1875, they could not exercise such jurisdiction before then, and thus they had no reason to consider whether cases governed by the law of state-​state relations were cases arising under federal law. See Sloss et al., supra note 42, at 31. 80. Judiciary Act of 1789, ch. 20, § 25, 1 Stat. 73, 85–​86. Today, the federal code provides: Final judgments or decrees rendered by the highest court of a State in which a decision could be had, may be reviewed by the Supreme Court by writ of certiorari where the validity of a treaty or statute of the United States is drawn in question or where the validity of a statute of any State is drawn in question on the ground of its being repugnant to the Constitution, treaties, or laws of the United States, or where any title, right, privilege, or immunity is specially set up or claimed under the Constitution or the treaties or statutes of, or any commission held or authority exercised under, the United States. 28 U.S.C. § 1257(a) (2012). 81.  Prize cases, in particular, were never heard in state court because, as discussed in Chapter 5, the Judiciary Act gave lower federal courts exclusive jurisdiction to hear such cases.

  173



The Inadequacy of Existing Theories

173

discussion of this branch of the law of nations made clear that the Court often felt bound to apply such law as a consequence of the Constitution’s allocation of war and foreign relations powers to the political branches of the federal government. In the twentieth century, the Supreme Court confirmed that the Constitution requires courts and states to uphold certain traditional sovereign rights of recognized foreign nations. This constitutional requirement supports the exercise of federal question jurisdiction in such cases within the meaning of Article III. The Supreme Court’s act of state doctrine cases illustrate these points. As discussed in Chapter  4, the Court applied the act of state doctrine in several cases to uphold the territorial sovereignty of recognized foreign nations. To understand how the Constitution’s allocation of powers may preempt state law and support Article III federal question jurisdiction in certain cases involving the law of nations, it is necessary to recall the essential facts of these cases. In Belmont and Pink, the Court determined that the President’s recognition of the Soviet Union preempted state authority to invalidate the Soviet Union’s prior confiscation of Russian corporations and their assets. The United States (as the Soviet Union’s assignee) brought Belmont in federal court to recover funds held by a New  York banker on behalf of a Russian corporation nationalized by the Soviet Union. The lower courts applied New York law and dismissed the United States’ claim because New  York had a policy against enforcing confiscatory decrees regarding property located in New  York at the time of confiscation. The Supreme Court reversed on the ground that the President’s recognition of the Soviet Union validated the confiscations and was binding on U.S. courts and states by virtue of the act of state doctrine.82 Recognition triggered the act of state doctrine because territorial sovereignty was a traditional right of recognized foreign nations under the law of state-​state relations. The Supreme Court found it “irrelevant” that the Russian corporation’s property was located in New York at the time of confiscation because confiscation of the corporation took place in Russia.83 According to the Court, U.S. recognition of the Soviet Union retroactively validated the confiscation, and no state power “can be interposed as an obstacle to the effective operation of a federal constitutional power”—​in this case, the recognition power.84

82. United States v. Belmont, 301 U.S. 324, 330 (1937). 83. Id. at 332. 84. Id.

174

174 Modern Customary International L aw

Although the issue of federal question jurisdiction was not squarely presented in Belmont, the Supreme Court’s disposition of the case made clear that the President’s recognition of the Soviet Union triggered the act of state doctrine and that a state’s failure to adhere to that doctrine raised a federal constitutional question. The Court confirmed this conclusion five years later in Pink. As in Belmont, Pink involved title to assets owned by a nationalized Russian corporation but held by the state of New York. The United States (as the Soviet Union’s assignee) brought suit in New York state court to recover the funds, and the New York Court of Appeals dismissed the claim on the ground that the funds had continuously been in the state’s possession before and after the confiscation and thus were governed by state law. The Supreme Court reversed on the basis of Belmont and the act of state doctrine, emphasizing the importance of recognition as a matter of federal law: “The action of New York in this case amounts in substance to a rejection of a part of the policy underlying recognition by this nation of Soviet Russia. Such power is not accorded a State in our constitutional system.”85 Because the New York Court of Appeals rejected a federal constitutional claim in Pink, the Supreme Court necessarily had federal question jurisdiction to review its decision. Sabbatino confirmed that the act of state doctrine has “constitutional underpinnings”86 and “must be treated exclusively as an aspect of federal law.”87 Cuba originally brought the case in federal court on the basis of diversity of citizenship jurisdiction, but the Supreme Court made clear that Erie did not require federal courts to apply state law to resolve the competing claims over the disputed funds. Instead, the Court felt “constrained to make it clear that an issue concerned with a basic choice regarding the competence and function of the Judiciary and the National Executive in ordering our relationships with other members of the international community must be treated exclusively as an aspect of federal law.”88 Accordingly, the Court applied the act of state doctrine as a matter of federal law, making it clear that the doctrine not only preempts contrary state law, but supports federal question jurisdiction within the meaning of Article III.

85. United States v. Pink, 315 U.S. 203, 233 (1942). 86. Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 431 (1964). 87. Id. at 425. 88. Id.

  175



The Inadequacy of Existing Theories

175

The Court’s rationale in Belmont, Pink, and Sabbatino confirmed that the act of state doctrine is not the only consequence of the political branches’ recognition of a foreign nation. Just as recognition signified respect for another nation’s territorial sovereignty, recognition also signified respect for other sovereign rights derived from the law of state-​ state relations. These rights included diplomatic immunity and head of state immunity, and a court’s denial of such rights would raise a federal question no less than a denial of the act of state doctrine. Imagine, for example, that in Bergman v.  De Sieyes89 the plaintiff had sued the diplomat of a recognized foreign nation in state (rather than federal) court, and that the state court had denied diplomatic immunity under state law. The defendant could have sought review in the Supreme Court on the ground that the Constitution’s allocation of recognition, reprisal, capture, and war powers to the federal political branches required the state court to uphold diplomatic immunity. This case would arise under federal law90—​specifically, the Constitution. The same analysis applies to the claim in Samantar v. Yousuf,91 discussed in Chapter 8, that U.S. courts must recognize immunity in favor of the head of a recognized foreign state under customary international law (as the successor to the law of state-​state relations). Under the Supreme Court’s precedents, denial of such immunity in state court would have raised a federal question and supported Article III jurisdiction. Notwithstanding the Marshall Court’s invocation of the Constitution’s allocation of powers in early cases, revisionist scholars have argued that it was well understood historically that the Supreme Court lacked federal question jurisdiction to review state court judgments involving the law of nations because such law was not federal law.92 It is true that the law of nations was considered to be general law rather than federal law,93 and

89. 170 F.2d 360 (2d Cir. 1948). 90.  See Bradford R. Clark, Federal Common Law:  A  Structural Reinterpretation, 144 U. Pa. L. Rev. 1245, 1320 n.349 (1996). 91. 560 U.S. 305, 130 S. Ct. 2278 (2010). 92.  See, e.g., Bradley & Goldsmith, supra note 68, at 824–​25. Cf. Michael G. Collins, The Diversity Theory of the Alien Tort Statute, 42 Va. J. Int’l L. 649, 655–​58 (2002) (suggesting that the inclusion in Article III of admiralty, ambassadorial, and alienage jurisdiction meant that violations of the law of nations would not give rise to federal question jurisdiction). 93. See Anthony J. Bellia Jr. & Bradford R. Clark, General Law in Federal Court, 54 Wm. & Mary L. Rev. 655 (2013).

176

176 Modern Customary International L aw

that not all cases arising under the law of nations necessarily arose under federal law. That is why cases arising under the law merchant (or general commercial law) did not arise under federal law. At the same time, the revisionist position fails both to distinguish adequately among the three main branches of the law of nations and to appreciate that each branch interacts with the Constitution in distinct ways. As Chapters 3 and 4 explained, the Constitution sometimes requires courts to apply the law of state-​state relations to uphold the rights of recognized foreign nations. In these limited circumstances, the denial of such rights raises a question arising under the Constitution and supports federal question jurisdiction. The relationship between the Constitution and the law of state-​state relations also distinguishes several precedents cited by revisionist scholars in support of their view that the Supreme Court lacks federal question jurisdiction to review state court decisions involving the law of nations. Unlike Belmont, Pink, Sabbatino, and Samantar, none of the cases cited by revisionist scholars involved a denial of a recognized foreign nation’s rights under the law of state-​state relations, and thus none of these cases arose under the constitutional provisions requiring courts to uphold such rights.94 In relying on these cases, revisionists have mistakenly lumped together all branches of the law of nations and assumed that the Constitution never requires courts to apply any rules derived from the law of nations (even those governing the rights of recognized foreign nations). The first case that revisionists cite for the proposition that cases involving the law of nations do not arise under federal law is the 1875 case of New York Life Insurance Co. v. Hendren.95 In that case, a citizen of Virginia brought a breach of contract action in Virginia state court seeking to recover on a life insurance policy issued by a New York insurance company. The question before the Supreme Court was what effect the Civil War had on the life insurance policy under the general laws of war. The Court held that it lacked jurisdiction to hear the case because no “Federal question was decided or necessarily involved in the judgment rendered by the court

94. These cases are cited in Bradley & Goldsmith, supra note 68, at 824 nn.48 & 53. For a thorough discussion of these cases, see Carlos M. Vázquez, Customary International Law as U.S. Law: A Critique of the Revisionist and Intermediate Positions and a Defense of the Modern Position, 86 Notre Dame L. Rev. 1495, 1525–​33 (2011). As Professor Vázquez points out, one such case, Huntington v. Attrill, 146 U.S. 657 (1892), is inapposite to this question because it involved the law merchant. Vázquez, supra at 1526. 95. 92 U.S. 286 (1875).

  177



The Inadequacy of Existing Theories

177

below.”96 The Court explained that it may act only “upon questions actually presented to the court below, not upon such as might have been presented or brought into the case, but were not.”97 Thus, “[t]‌he case … having been presented to the court below for decision upon principles of general law alone, and it nowhere appearing that the constitution, laws, treaties, or executive proclamations, of the United States were necessarily involved in the decision,” the Court had “no jurisdiction.”98 Hendren did not establish that the Supreme Court lacks jurisdiction to hear appeals involving the law of state-​state relations in all cases. Hendren did not involve a claim that the Constitution required the application of the law of nations to uphold the rights of a recognized foreign nation (such as diplomatic immunity or head of state immunity). Rather, the case appears to have involved only a claim by the insured that the general commercial law should take account of the Civil War and its possible effect on the rights and obligations of the parties to the contract. In addition, Hendren may have rested on statutory limitations on the Supreme Court’s appellate jurisdiction. At the time the Court decided Hendren, it could only review a state court decision that was against a title, right, or privilege specially set up or claimed by either party under the Constitution, a treaty, or a statute of the United States.99 Because neither party specifically claimed a title, right, or privilege under federal law, the Court lacked statutory jurisdiction.100 Hendren in no way precludes Supreme Court jurisdiction in a case where a party does “set up” a right, title, privilege, or immunity under the Constitution, such as, for example, a claim by the head of a recognized foreign nation that a state court has failed to afford the immunity required by the Constitution as an incident of recognition. Another case revisionists have cited is the Supreme Court’s 1886 decision in Ker v. Illinois.101 In Ker, an Illinois defendant was charged in Illinois state court with larceny and embezzlement. After committing these alleged crimes, the defendant fled to Lima, Peru, where he remained

96. Id. at 286. 97. Id. at 287. 98. Id. 99. See supra note 80 and accompanying text. 100. For additional arguments that Hendren is too vague to be read broadly, see Vázquez, supra note 94, at 1529–​31. 101. 119 U.S. 436 (1886).

178

178 Modern Customary International L aw

after his indictment. The Governor of Illinois enlisted the assistance of the President to obtain the defendant’s extradition from Peru pursuant to a treaty between the two nations. The President gave a warrant to a messenger to deliver to the Peruvian authorities, and instructed him to bring the defendant back to the United States for trial. Ker alleged that the messenger forcibly arrested him and placed him on a U.S. ship without first making a demand on Peruvian officials. Ker was subsequently tried and convicted in Illinois. He sought review of his state court conviction in the U.S. Supreme Court on the grounds that his conviction violated due process of law, an act of Congress, and a treaty of the United States. The Court rejected each of these claims. In addition, the Court declined to decide the “question of how far [Ker’s] forcible seizure in another country, and transfer by violence, force, or fraud to this country, could be made available to resist trial in the State court, for the offense now charged upon him”102 because the Court did “not see that the Constitution, or laws, or treaties, of the United States guarantee him any protection.”103 In the course of this discussion, the Court noted that the state court was free to decide the effect of Ker’s seizure “as a question of common law, or of the law of nations.”104 The Court also observed that “though we might or might not differ with the Illinois court on that subject, it is one in which we have no right to review their decision.”105 Revisionist scholars have pointed to this language to suggest broadly that the Court lacks jurisdiction to review questions involving the law of nations. In context, however, Ker’s language does not support this conclusion. The question at issue in Ker was whether the defendant had a remedy in federal court for his irregular seizure in Peru. Having concluded that neither the Constitution nor laws nor treaties of the United States afford him any protection, the Court had no basis to exercise appellate jurisdiction over any state court disposition of the issue. Even assuming that Ker’s seizure by the United States violated Peru’s territorial rights under a treaty or the law of state-​state relations, the Court’s disposition of the case essentially held that Ker lacked standing to assert Peru’s rights. Indeed,

102. Id. at 444. 103. Id. 104. Id. 105. Id.

  179



The Inadequacy of Existing Theories

179

the Court went out of its way to point out that its disposition did “not leave the prisoner or the government of Peru without remedy for his unauthorized seizure within its territory.”106 Peru, the Court noted, could have demanded extradition of the messenger for kidnapping, and then tried him “in its courts for this violation of its laws.”107 Likewise, Ker was not “without redress” because he could have sued his captor “in an action of trespass and false imprisonment.”108 Neither of these remedies, however, had yet been pursued. The only issue before the Supreme Court in Ker was whether it could set aside the defendant’s state law conviction because of his irregular apprehension, and the Court found no basis in federal law to do so. The final case cited by revisionists is Oliver American Trading Co. v. Mexico,109 decided in 1924. Oliver considered the question whether the Supreme Court could exercise an unusual form of statutory review over an issue of foreign sovereign immunity. District court decisions were ordinarily appealable to the U.S. Courts of Appeals. Section 238 of the Judicial Code, however, provided that, upon certification from a district court, the Supreme Court could hear direct appeals and writs of error “[i]‌n any case in which the jurisdiction of the [district] court is in issue.”110 Before hearing an extraordinary appeal under this provision, the Court found that it had “the duty of determining for itself whether the question which was certified is in truth one of the jurisdiction of the lower court as a federal court.”111 The Court held that such a question “is not presented where the question of jurisdiction to be decided turns upon matters of general law applicable alike to actions brought in other tribunals”—​such as the question of foreign sovereign immunity presented in that case.112 This narrow statutory ruling said nothing about whether Article III permits the Supreme Court to exercise federal question jurisdiction to review a state court’s denial of sovereign immunity to a recognized foreign nation.

106. Id. 107. Id. 108. Id. 109. 264 U.S. 440 (1924). 110. Judicial Code of 1911, Pub. L. No. 61-​475, § 238, 36 Stat. 1087, 1157, amended by Act of Jan. 28, 1915, Pub. L. No. 63-​241, § 2, 38 Stat. 803, 804. 111. Oliver Am. Trading Co., 264 U.S. at 442–​43. 112. Id.

180

180 Modern Customary International L aw

Nor did the case even suggest that the Supreme Court could not review the lower federal courts’ immunity determinations through its ordinary modes of appellate jurisdiction.113 In short, none of the decisions cited by revisionist scholars held that the Supreme Court lacks Article III arising under jurisdiction to review a state court’s denial of the sovereign rights of a recognized foreign nation under the law of state-​state relations. The Court’s subsequent decisions in Belmont, Pink, and Sabbatino make clear that the Constitution sometimes requires U.S. courts to uphold such rights as an incident of recognition. In such cases, a state court’s denial of those rights presents a question “arising under” federal law within the meaning of Article III. Revisionists also cite an incident involving New  York’s 1840 arrest and subsequent prosecution of Alexander McLeod, a British subject who allegedly murdered a U.S. citizen when British military forces sank the Caroline, an American-​owned steamer.114 Great Britain wrote to U.S. Secretary of State Daniel Webster that McLeod should be released on the ground that he was immune from prosecution under the law of nations because the sinking of the Caroline was the act of a foreign public official obeying superior orders. Webster agreed that McLeod was not responsible in these circumstances, but disclaimed any authority to terminate ongoing state criminal proceedings.115 Revisionists describe this incident as one in which “the federal government disclaimed the power to interfere with or review the state proceedings, even though it acknowledged its responsibility to other nations for these violations of international law.”116

113. In De Rees v. Costaguta, 254 U.S. 166 (1920), upon which the Supreme Court relied in Oliver American Trading Co., the Court explained this clearly: It is equally well settled that, where the question of jurisdiction presented and decided turns upon questions of general law, determinable upon principles alike applicable to actions brought in other jurisdictions, the jurisdiction of the court as a federal court is not presented in suchwise as to authorize the jurisdictional appeal directly to this court; and the question must be decided as other questions are, by the usual course of appellate procedure, giving review in the Circuit Court of Appeals. De Rees, 254 U.S. at 173. 114. See Bradley & Goldsmith, supra note 68, at 825 & n.56. For a full account of the incident, see David J. Bederman, The Cautionary Tale of Alexander McLeod:  Superior Orders and the American Writ of Habeas Corpus, 41 Emory L.J. 515, 515–​20 (1992); R.Y. Jennings, The Caroline and McLeod Cases, 32 Am. J. Int’l L. 82, 82–​99 (1938). 115.  See Letter from Mr. Webster to Mr. Fox (Apr. 24, 1841), reprinted in 29 British and Foreign State Papers, 1840–​1841, at 1129, 1131–​32 (1857). 116. Bradley & Goldsmith, supra note 68, at 825.

  181



The Inadequacy of Existing Theories

181

Although Webster disclaimed executive authority to interfere with an ongoing state prosecution, he did not disclaim the Supreme Court’s authority to review a final judgment by the state’s highest court. Indeed, so as not to delay his trial,117 McLeod opted not to seek Supreme Court review of the state supreme court’s denial of his state law habeas corpus petition.118 Because McLeod was subsequently acquitted at trial, there was no further opportunity for Supreme Court review.119 The incident, however, did prompt Congress to enact the Habeas Corpus Act of 1842, which for the first time permitted foreign citizens to seek a federal writ of habeas corpus when detained by a state for acts done under the authority of a foreign state.120 In light of the foregoing, the McLeod incident actually supports—​rather than refutes—​the proposition that Article III permits U.S. courts to review a state’s denial of a foreign nation’s rights under the law of state-​state relations. In the end, the revisionist position suffers from the same fundamental flaw as the modern position. It treats customary international law as an undifferentiated body of general law that interacts with the Constitution in only one way. Both the original constitutional design and federal judicial practice, however, reveal that the Constitution sometimes requires U.S. courts to uphold the rights of foreign nations under the law of state-​ state relations, differentiating this branch of the law of nations from other forms of general law such as the law merchant.

III As an alternative to both the modern and revisionist positions, some scholars have proposed an intermediate position under which courts would treat customary international law as neither federal nor state law, but as non-​binding transnational or general law of the kind they applied during the Swift era. For example, Professor Michael Ramsey has suggested that federal courts may enforce customary international law as a rule of decision if it does not displace otherwise constitutional state or federal law.121 Similarly, Professor Ernest Young has suggested that customary international law is neither state nor federal law, but “general” law that “would 117. See Jennings, supra note 114, at 95. 118. People v. McLeod, 1 Hill 377 (N.Y. Sup. Ct. 1841). 119. See Bederman, supra note 114, at 526. 120. See Act of Aug. 29, 1842, ch. 252, 5 Stat. 539 (codified at 28 U.S.C. § 2241(c)(4) (2012)). 121. See Michael D. Ramsey, The Constitution’s Text in Foreign Affairs 342–​61 (2007).

182

182 Modern Customary International L aw

remain available for both state and federal courts to apply in appropriate cases as determined by traditional principles of the conflict of laws.”122 Although these suggestions avoid some of the difficulties with the modern and revisionist positions, they still pay too little attention to the Constitution’s allocation of powers to Congress and the President over war and foreign relations. This allocation of powers requires courts to apply the law of state-​state relations notwithstanding contrary state law in at least some contexts. Consider, for example, diplomatic immunity (before it was codified by federal statute). In Bergman v.  De Sieyes,123 discussed in Chapter 4, the Second Circuit—​consistent with the tenets of the revisionist position—​applied state law to decide whether a diplomat in transit enjoyed immunity from suit in New York. The Second Circuit upheld diplomatic immunity on the ground that New York law incorporated customary international law (and therefore recognized immunity as a matter of state law). The intermediate position would have worked well in Bergman because there was no conflict between state law and the law of state-​state relations. But assume, hypothetically, that state law had conflicted with diplomatic immunity under the law of state-​state relations. Like the revisionist position, the intermediate position would require courts to apply state law over the general law of nations. As the Supreme Court’s decisions in Belmont and Pink demonstrate, however, this approach would contradict the Constitution’s allocation of powers—​in particular, the assignment of the recognition power to the political branches.124 Because the United States had recognized France, the Constitution required U.S.  courts to uphold the immunity of its ambassadors as an incident of recognition.

IV Before we proceed to consider the implications of this analysis for judicial enforcement of customary international law today, it is worth pausing

122. Ernest A. Young, Sorting Out the Debate over Customary International Law, 42 Va. J. Int’l L. 365, 369–​70 (2002); see also A.M. Weisburd, State Courts, Federal Courts, and International Cases, 20 Yale J. Int’l L. 1, 48–​49 (1995) (analogizing customary international law to “the law of a foreign country,” only applicable in “American courts in appropriate cases”). 123. 170 F.2d 360 (2d Cir. 1948). 124. As discussed in Chapter 4, United States v. Belmont, 301 U.S. 324 (1937), and United States v. Pink, 315 U.S. 203 (1942), involved the Supreme Court’s retroactive application of the act of state doctrine to shield Soviet confiscations of private property from scrutiny under state law following the President’s recognition of the Soviet Union.

  183



The Inadequacy of Existing Theories

183

to consider a 2004 case—​Sosa v.  Alvarez-​Machain125—​that proponents of both the modern and revisionist positions claim as support for their respective approaches. The case does not, in fact, support either position because it did not involve judicial application of uncodified principles of customary international law. Rather, it involved application of a federal statute that the Supreme Court understood to authorize judicial enforcement of a limited number of customary international law rules analogous to those known to the First Congress. Even in the face of this statutory authorization to apply the law of nations, the Court construed the statute narrowly to avoid interfering with the political branches’ conduct of foreign relations. Sosa involved a claim under the Alien Tort Statute (ATS). The ATS was a provision of the Judiciary Act of 1789 that lay largely dormant until litigants began invoking it in the 1980s as a means of pursuing international human rights claims in federal courts.126 As enacted in 1789, the ATS provided that “the district courts … shall [] have cognizance, concurrent with the courts of the several States, or the circuit courts, as the case may be, of all causes where an alien sues for a tort only in violation of the law of nations or a treaty of the United States.”127 The Supreme Court interpreted the statute for the first time in Sosa, and unanimously rejected the plaintiff’s reliance on the ATS. The case began when Alvarez (a Mexican doctor) sued Sosa (a Mexican national) and other Mexican nationals under the ATS for kidnapping Alvarez in Mexico and bringing him to the United States to stand trial for the alleged torture and murder of a U.S. law enforcement officer in Mexico.128 The Court construed the ATS narrowly and held that federal courts lacked jurisdiction to hear the case. The Sosa Court began by holding that “the ATS is a jurisdictional statute creating no new causes of action.”129 The Court characterized as “implausible” the plaintiff’s argument that “the ATS was intended not simply as a jurisdictional grant, but as authority for the creation of a new

125. 542 U.S. 692 (2004). 126. Judiciary Act of 1789, ch. 20, 1 Stat. 73. 127. Id. at 76–​77. 128.  Sosa, 542 U.S.  at 697–​98. Alvarez also sued four United States Drug Enforcement Administration agents and the United States, but these claims were dismissed before the case got to the Supreme Court. 129. Id. at 724.

184

184 Modern Customary International L aw

cause of action for torts in violation of international law.”130 At the same time, the Court believed that the “jurisdictional grant is best read as having been enacted on the understanding that the common law would provide a cause of action for the modest number of international law violations with a potential for personal liability at the time.”131 According to the Court, the First Congress would have expected the ATS to apply to “those torts corresponding to Blackstone’s three primary offenses [against the law of nations]: violation of safe conducts, infringement of the rights of ambassadors, and piracy.”132 Under these circumstances, the Court held that federal courts can recognize new claims “based on the present-​day law of nations” only if they “rest on a norm of international character accepted by the civilized world and defined with a specificity comparable to the features of the 18th-​century paradigms we have recognized.”133 Applying this standard, the Court concluded that Alvarez’s claim for arbitrary abduction and detention in Mexico did not qualify as a tort in violation of the law of nations within the meaning of the ATS.134 Even though the Sosa Court understood the ATS to authorize federal courts to adjudicate a limited number of claims under the law of nations, the Court offered two reasons grounded in the Constitution’s allocation of powers “for judicial caution.” First, “the potential implications for the foreign relations of the United States of recognizing [new private causes of action for violating international law] should make courts particularly wary of impinging on the discretion of the Legislative and Executive Branches in managing foreign affairs.”135 The Court elaborated that “[s]‌ince many attempts by federal courts to craft remedies for the violation of new norms of international law would raise risks of adverse foreign policy

130. Id. at 713. 131. Id. at 724. As a historical matter, the First Congress would not have expected “the common law” in the abstract to supply a cause of action because the same Congress enacted the Process Act of 1789 just five days later. The Process Act, in turn, instructed federal courts to use state forms and modes of proceeding—​the traditional source of a cause of action—​in common law actions, including tort suits under the ATS. See Anthony J. Bellia Jr. & Bradford R. Clark, The Original Source of the Cause of Action in Federal Courts: The Example of the Alien Tort Statute, 101 Va. L. Rev. 609 (2015). 132. Sosa, 542 U.S. at 724. 133. Id. at 724–​25. 134. Id. at 724, 738. 135. Id. at 727.

  185



The Inadequacy of Existing Theories

185

consequences, they should be undertaken, if at all, with great caution.”136 Second, courts “have no congressional mandate to seek out and define new and debatable violations of the law of nations, and modern indications of congressional understanding of the judicial role in the field have not affirmatively encouraged greater judicial creativity.”137 This lack of congressional authorization for courts to apply customary international law in “new and debatable” ways convinced the Court that it should use “great caution in adapting the law of nations to private rights.”138 The Supreme Court continued its cautious approach to the ATS in Kiobel v. Royal Dutch Petroleum Co.139 There, a group of Nigerian nationals (residing in the United States as legal residents) filed an ATS suit in federal court against certain Dutch, British, and Nigerian corporations, alleging that they aided and abetted the Nigerian government in committing various international human rights violations in Nigeria, including extrajudicial killings, crimes against humanity, and torture.140 The Supreme Court applied the presumption against extraterritorial application of U.S.  law (in this case, the ATS) to affirm the dismissal of the case. In so doing, the Court noted that “the danger of unwarranted judicial interference in the conduct of foreign policy is magnified in the context of the ATS.”141 In addition, the Court thought it “implausible to suppose that the First Congress wanted their fledgling Republic—​struggling to receive international recognition—​to be the first,”142 in the words of Justice Story, “to be the custos morum of the whole world.”143 The Supreme Court’s cautious approach to the ATS in both Sosa and Kiobel comports with the Court’s long-​standing refusal to hold foreign nations accountable for their misconduct—​including violations of customary international law—​ without unmistakably clear congressional authorization to do so. The ATS was enacted in 1789—​a time when the

136. Id. at 727–​28. 137. Id. at 728. 138. Id. 139. 133 S. Ct. 1659 (2013). 140. Id. at 1662–​63. 141. Id. at 1664. 142. Id. at 1668. 143. Id. (quoting United States v. La Jeune Eugenie, 26 F. Cas. 832, 847 (No. 15,551) (C.C.D. Mass. 1822)).

186

186 Modern Customary International L aw

law of nations was categorically different than the kind of new rules of modern customary international law that developed in the twentieth century. To avoid usurping Congress’s authority in the field of foreign relations, the Court has restricted jurisdiction under the ATS to claims closely analogous to the kinds of claims that it imagined the First Congress had in mind when it enacted the statute. This approach ensures that federal courts will respect the political branches’ exclusive constitutional authority to decide whether, when, and how to hold foreign nations accountable for violating customary international law. Seen in this light, the Court’s narrow reading of the ATS continued its long-​ standing practice—​typified by its decisions during the Quasi-​War with France—​of construing federal statutes narrowly to avoid unauthorized judicial interference with the traditional rights of recognized foreign nations.144 As mentioned, proponents of both the modern position and the revisionist position have claimed Sosa as support for their respective positions.145 The Sosa Court, however, did not—​and did not have to—​choose sides in this debate. Whatever one thinks of Sosa’s interpretation of the ATS,146 the decision was, at bottom, an interpretation of a federal statute. The Supreme Court read the statute to authorize federal courts to apply the law of nations in relatively narrow circumstances. Thus, the Court had no need to endorse or reject the modern position, which presupposes that federal courts may apply uncodified customary international law as federal common law in the absence of congressional authorization

144. See Little v. Barreme, 6 U.S. (2 Cranch) 170 (1804), discussed in Chapters 8 and 9, and Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64 (1804), discussed in Chapter 4. 145.  Compare Ralph G. Steinhardt, Laying One Bankrupt Critique to Rest: Sosa v.  Alvarez-​ Machain and the Future of International Human Rights Litigation in U.S. Courts, 57 Vand. L. Rev. 2241, 2259 (2004) (arguing that Sosa “confirms Paquete Habana’s axiomatic proposition that ‘international law is part of our law’ and does not require further implementation by statute, treaty, or executive proclamation to be binding in domestic courts”) (footnote omitted) (quoting The Paquete Habana, 175 U.S. 677, 700 (1900)), with Curtis A. Bradley, Jack L. Goldsmith & David H. Moore, Sosa, Customary International Law, and the Continuing Relevance of Erie, 120 Harv. L.  Rev. 869 (2007) (arguing that Sosa supports the proposition that federal courts cannot incorporate customary international law as federal law in the absence of authorization in a federal statute or treaty). 146. In our view, the ATS was originally meant to give aliens access to U.S. courts to seek redress against Americans who committed intentional torts against their person or personal property. Under the law of nations at the time, the United States had an obligation to redress such injuries or face retaliation by foreign nations. See Anthony J. Bellia Jr. & Bradford R. Clark, The Alien Tort Statute and the Law of Nations, 78 U. Chi. L. Rev. 445 (2011).

  187



The Inadequacy of Existing Theories

187

to do so.147 Nor did the Court have any reason to endorse or reject the revisionist position. Because the Court understood the ATS to incorporate a narrow set of customary international law norms in keeping with the expectations of the First Congress, the Court had no reason to address whether federal courts could enforce norms of customary international law not incorporated by the ATS. In short, Sosa simply interpreted and applied a federal statute, thus rendering the decision of little direct relevance to the ongoing debate over whether, when, and how U.S. courts may apply customary international law in the absence of political branch authorization to do so. All three existing theories regarding the status of customary international law in U.S.  courts fail to differentiate various kinds of customary international law and how they interact with the Constitution’s allocation of powers. Existing theories also fail to differentiate distinct uses of international law—​specifically, the use of international law to uphold rights of foreign sovereigns under such law, and the use of international law to hold foreign sovereigns accountable for their violations. The modern position would treat all forms of customary international law—​including modern rules that did not exist at the founding—​as supreme federal law, no matter how applied. The revisionist position would not recognize any rules of customary international law as federal law unless adopted by the political branches of the federal government. The intermediate position would treat all forms of customary international law as general law, without regard to their interactions with the constitutional structure. Thus, all three positions fail to appreciate that the Constitution has interacted in distinct ways with different branches of the law of nations. Judicial use of the law of state-​state relations to uphold the rights of recognized foreign nations has played an important but limited role in upholding the constitutional prerogatives of Congress and the President over recognition, war, reprisals, and captures. Judicial application of other 147. To be sure, the Court mentioned federal common law, but only as a source of judicial authority to implement the statute by recognizing a limited number of causes of action in accordance with the expectations of the Congress that enacted it. The Sosa Court explained that the ATS “was enacted on the congressional understanding that courts would exercise jurisdiction by entertaining some common law claims derived from the law of nations.” Sosa v. Alvarez-​Machain, 542 U.S. 692, 731 n.9 (2004). Contrary to the modern position, the Court stated that its position did not imply that “the grant of federal-​question jurisdiction would be equally as good for our purposes as [the ATS].” Id.

188

188 Modern Customary International L aw

branches of the law of nations has not played the same role because other branches of the law of nations do not interact in the same way with the Constitution’s allocation of war and foreign relations powers. Because different branches of the law of nations have interacted differently with the Constitution, a one-​size-​fits-​all approach to the status of customary international law in U.S. courts cannot be justified under the Constitution.

  189

PART THREE

Chapters 8–​10

Enforcement of Customary International Law in U.S. Courts This Part considers the extent to which the Constitution requires or allows U.S.  courts to enforce customary international law in various contexts. Specifically, it addresses the extent to which U.S.  courts may apply customary international law to constrain or redress actions by (1)  foreign nations, governments, or officials; (2) the United States or its officials; or (3) U.S. states or their officials. Although these contexts overlap, they are sufficiently distinct to warrant separate treatment. These chapters consider only the status of uncodified customary international law. The specific question addressed here is whether and to what extent U.S. courts may apply customary international law in the absence of adoption by the political branches as supreme federal law. Scholars have analyzed this question using certain conventional sources of constitutional meaning. In particular, they have examined historical understandings and practices, and evaluated judicial precedent. The remaining chapters look to the same conventional sources in considering this question. Chapter 8 begins by examining the circumstances in which U.S. courts may enforce customary international law against foreign nations. When the political branches of the United States exercise their constitutional powers to recognize a foreign nation, recognition signifies that the United States (including its courts) will respect the rights of the nation in question under the law of nations. This is what recognition meant at the founding and continues to mean today. While recognized nations have rights under the law of nations, they also have obligations toward other nations, including the United States. When a foreign nation fails to live up to these obligations, courts are sometimes asked to adjudicate the violation and hold

190

190 E nforcement of Customary International L aw

the offending nation accountable in some way. From the founding to the present, however, the Supreme Court has declined to permit U.S. courts to undertake this role without clear authorization from the political branches to do so. The reason for the Court’s refusal has been that the Constitution allocates exclusive authority to the political branches to hold foreign nations accountable for their violations of international law. This constitutional allocation of powers applies whether a foreign nation violates traditional rights under the law of state-​state relations or rules of modern customary international law. In both cases, the Constitution’s allocation of powers requires courts to wait for authorization before attempting to redress or even adjudicate a foreign nation’s violations. Chapters  9 and 10 consider when U.S.  courts may apply customary international law to constrain or redress actions by the United States or by a U.S. state, respectively. As Chapter 8 suggests, U.S. courts have historically enforced the traditional sovereign rights of recognized foreign states against competing U.S. interests. This kind of enforcement upholds the Constitution’s allocation of the recognition power to the political branches by leaving it to these actors—​rather than courts—​to decide whether, when, and how to abrogate such rights. The Constitution’s allocation of the recognition power, however, does not likewise support judicial enforcement of nontraditional rules of modern customary international law. Scholars have made three arguments that U.S. courts should enforce such law against the United States or U.S. states. First, certain scholars have argued that modern customary international law is the modern-​day equivalent of the traditional law of state-​state relations and should be enforced in the same way as such law. As explained, however, modern customary international law rejects certain premises of the traditional law of state-​state relations that the Constitution’s allocation of powers presupposed. Thus, modern customary international law does not interact with the Constitution in the same way that the traditional law of state-​state relations interacts with it. Moreover, the law of state-​state relations, in and of itself, was never enforceable in U.S.  courts. It was enforceable against the United States only in those contexts in which the Constitution’s allocation of powers required its enforcement to preserve the constitutional prerogatives of the political branches. Thus, even if modern customary international law and the law of state-​state relations are interchangeable, historical understandings and precedent do not demonstrate that U.S. courts may enforce modern customary international law in any and all circumstances. In the end, any argument that U.S. courts

  191



Enforcement of Customary International Law

191

may enforce modern customary international law against the United States or its constituent states requires an independent justification under the Constitution. Second, scholars have argued that recognition of a foreign nation should now be taken to signify that the United States has consented to have its own courts enforce rules of modern customary international law against the United States and its constituent states. Treating such rules as enforceable incidents of recognition, however, would contradict the well-​ accepted and long-​standing meaning of recognition, as well as key features of the federal constitutional structure. In particular, this understanding of recognition would contradict certain aspects of the constitutional design meant to check and balance federal power. Third, scholars have argued that federal courts must enforce customary international law against U.S. states as a form of “dormant foreign relations preemption.” Although the Supreme Court endorsed this concept in the late 1960s, it has not since relied on the doctrine, and its continued validity remains unclear. In any event, even if still viable, the doctrine does not support unqualified enforcement of modern customary international law against U.S. states.

192

  193

8

Judicial Enforcement of Customary International Law Against Foreign Nations

This chapter focuses on whether U.S.  courts may apply customary international law against foreign nations, governments, or officials to redress, or otherwise hold them accountable for, their misconduct. Since the founding, U.S. courts have refused to enforce traditional rules of the law of state-​state relations against foreign nations or their officials. The structural rationale that has justified this practice applies equally, if not more so, to enforcement of rules of modern customary international law against foreign nations or their officials. To understand why U.S. courts have not undertaken to apply the law of nations against foreign nations, it is helpful to distinguish, on the one hand, the application of customary international law to uphold the traditional rights of foreign nations from, on the other hand, the application of customary international law to redress or constrain the conduct of foreign nations. The Constitution, as historically understood and applied by the Supreme Court, treats these two categories differently. As discussed in Chapters 3 and 4, courts have long enforced the traditional rights of foreign sovereigns under the law of state-​state relations as a means of upholding the Constitution’s allocation of the recognition, war, and other foreign relations powers to the political branches of the federal government. At the same time, courts have consistently refused to apply the law of nations or customary international law to invalidate the actions of recognized foreign nations or otherwise hold them accountable for violating such law. The Law of Nations and the United States Constitution. Anthony J. Bellia Jr. and Bradford R. Clark. © Oxford University Press 2017. Published 2017 by Oxford University Press.

194

194 E nforcement of Customary International L aw

This refusal reflects the judiciary’s understanding that the Constitution grants the political branches of the federal government exclusive authority to make such decisions on behalf of the United States pursuant to their exclusive powers to conduct diplomacy, authorize reprisals or captures, and commence and conduct war.

I Before addressing whether U.S. courts may apply customary international law against foreign nations, governments, or officials, it is useful to distinguish judicial application of customary international law to uphold the rights of recognized foreign nations in U.S. court—​a topic that the next chapter will address in more detail. The reasons that courts traditionally have upheld the rights of foreign nations under the law of nations do not apply to judicial enforcement of the law of nations to hold foreign nations accountable for their violations of such law. Thus, it is important to distinguish these different potential uses of customary international law in U.S. courts at the outset. Throughout much of U.S.  history, the rights of recognized foreign nations under the law of state-​state relations were uncodified in U.S. law. The political branches have now codified most traditional rights of sovereigns in statutes, treaties, and conventions. For example, in 1978 Congress codified traditional principles of diplomatic immunity in the Diplomatic Relations Act.1 The Act incorporated the Vienna Convention on Diplomatic Relations as U.S. law, required diplomats to obtain liability insurance, authorized suits against insurers, and codified other aspects of diplomatic immunity. By codifying diplomatic immunity, Congress gave courts clear instructions in enacted federal law on when to recognize and when to deny such immunity. Prior to the Act, courts applied diplomatic immunity as an aspect of the uncodified general law of nations. As discussed in Chapter 4, courts had a sound basis in the constitutional structure for applying such immunity even before Congress codified it. Diplomatic immunity was a long-​standing incident of recognition, binding upon federal and state courts alike, and a denial of diplomatic immunity would have “amount[ed] in substance to a rejection of a part of the

1. See Diplomatic Relations Act of 1978, Pub. L. No. 95-​393, 92 Stat. 808 (codified as amended at 22 U.S.C. §§ 254a–​254e (2000)).

  195



Judicial Enforcement Against Foreign Nations

195

policy underlying recognition by this nation”—​a power “not accorded a State in our constitutional system.”2 Notwithstanding the move toward codification, some traditional rights of foreign nations remain uncodified, and thus present the question whether U.S. courts should uphold these rights on their own. Head of state immunity is the most prominent right of recognized foreign nations that remains uncodified, and it provides a useful case study of how a traditional right under the law of state-​state relations interacts with the Constitution absent express adoption or abrogation by the political branches. Head of state immunity derives from the law of state-​state relations. Chief Justice John Marshall recognized this immunity as early as 1812 in The Schooner Exchange. According to Marshall, “the whole civilized world” recognizes “the exemption of the person of the sovereign from arrest or detention within a foreign territory.”3 Head of state immunity is closely related to the broader doctrine of foreign sovereign immunity under the law of state-​state relations. Federal and state courts traditionally resolved claims of foreign sovereign immunity by looking to the general law of nations.4 As the Supreme Court has observed, “[ f ]‌or more than a century and a half, the United States generally granted foreign sovereigns complete immunity from suit in the courts of this country.”5 During this time, federal and state courts had little reason to consider the precise status of this immunity under the constitutional scheme because they simply applied the immunity as general law. Had it been necessary, however, courts could have grounded foreign sovereign immunity in the political branches’ exclusive constitutional powers over recognition, war, reprisals, and captures. When the United States recognized a foreign nation as an independent sovereign, it necessarily signified that the United States would respect the rights of that nation under the law of state-​state relations—​including the rights to head of state immunity and foreign sovereign immunity. In 1952, the State Department issued the Tate Letter, endorsing the “restrictive” theory of foreign sovereign immunity. By this time, the

2. United States v. Pink, 315 U.S. 203, 233 (1942). 3. The Schooner Exchange v. McFaddon, 11 U.S. (7 Cranch) 116, 137 (1812). 4.  See Ingrid Wuerth, Foreign Official Immunity Determinations in U.S. Courts:  The Case Against the State Department, 51 Va. J. Int’l L. 915, 924 (2011) [hereinafter Wuerth, Foreign Official Immunity]. 5. Verlinden B.V. v. Cent. Bank of Nigeria, 461 U.S. 480, 486 (1983).

196

196 E nforcement of Customary International L aw

restrictive theory had largely replaced absolute immunity under international law.6 Under this new theory, “immunity is confined to suits involving the foreign sovereign’s public acts, and does not extend to cases arising out of a foreign state’s strictly commercial acts.”7 Nonetheless, in response to diplomatic and political pressure, the State Department sometimes “file[d]‌‘suggestions of immunity in cases where immunity would not have been available under the restrictive theory.’ ”8 In time, the State Department urged Congress to foreclose this option by codifying the availability of foreign sovereign immunity in U.S. courts. Congress acquiesced, enacting the Foreign Sovereign Immunities Act (FSIA) in 1976.9 The Act essentially codified the restrictive theory of foreign sovereign immunity and “transfer[red] primary responsibility for immunity determinations from the Executive to the Judicial Branch.”10 The FSIA did not explicitly address head of state immunity. Some lower federal courts nonetheless construed the Act to govern not only the immunity of foreign states, but also the immunity of high-​ranking foreign officials.11 In Samantar v. Yousuf,12 the Supreme Court rejected this interpretation of the Act and held that the phrase “foreign state,” as used in the statute, does not “include an official acting on behalf of the foreign state.”13 Samantar involved a suit against the former Prime Minister of Somalia for acts of torture and extrajudicial killing that he allegedly authorized while he was head of state. Although the Court found the FSIA to be inapplicable, it stated that on remand the defendant “may be entitled to immunity under the common law.”14 The Court did not discuss either

6. Letter from Jack B. Tate, Acting Legal Adviser, U.S. Dep’t of State, to Philip B. Perlman, Acting Att’y Gen. (May 19, 1952), in 26 Department of State Bulletin 984, 985 (1952). 7. Verlinden, 461 U.S. at 487. 8. Austria v. Altmann, 541 U.S. 677, 690 (2004) (quoting Verlinden, 461 U.S. at 487). 9. Pub. L. No. 94-​583, 90 Stat. 2891 (1976) (codified as amended at 28 U.S.C. §§ 1330, 1332(a), 1391(f), 1441(d), 1602–​11 (2006 & supp. 2010)). 10. Altmann, 541 U.S. at 691. 11. See In re Terrorist Attacks on Sept. 11, 2001, 538 F.3d 71, 83 (2d Cir. 2008); Keller v. Cent. Bank of Nigeria, 277 F.3d 811, 815 (6th Cir. 2002); Byrd v. Corporacion Forestal y Industrial de Olancho S.A., 182 F.3d 380, 388 (5th Cir. 1999); El-​Fadl v. Cent. Bank of Jordan, 75 F.3d 668, 671 (D.C. Cir. 1996); Chuidian v. Philippine Nat’l Bank, 912 F.2d 1095, 1103 (9th Cir. 1990). 12. 560 U.S. 305 (2010). 13. Id. at 319. 14. Id. at 325-​26.

  197



Judicial Enforcement Against Foreign Nations

197

the precise content of such “common law” or the constitutional basis for applying it in federal court,15 leaving these questions open for lower courts.16 Head of state immunity provides a useful lens through which to examine the ongoing debate over the status of customary international law in U.S.  courts. For proponents of the modern position—​who believe that all customary international law constitutes a form of federal law—​courts should apply whatever immunities customary international law recognizes. For proponents of the revisionist position—​who believe that state law governs the status of customary international law in the absence of a federal statute or treaty—​courts should apply head of state immunity only if federal or state law incorporates such immunity. Neither approach, however, adequately takes account of the Constitution’s allocation of powers or judicial precedent upholding that allocation by enforcing the rights of recognized foreign nations. The Supreme Court has long understood the Constitution’s allocation of powers to require U.S.  courts to uphold the rights of recognized foreign nations under the law of state-​state relations.

15. The Supreme Court did, however, suggest that the State Department may retain a “role in determinations regarding individual official immunity” similar to the role it played in determinations of foreign sovereign immunity prior to the enactment of the FSIA. Id. at 323. Commentators are divided on the propriety and effect of case-​by-​case suggestions of immunity by the executive branch. Compare Wuerth, Foreign Official Immunity, supra note 4, at 923 (arguing against judicial deference to executive suggestions of immunity), with Lewis S. Yelin, Head of State Immunity as Sole Executive Lawmaking, 44 Vand. J. Transnat’l L. 911, 918 (2011) (arguing in favor of judicial deference to executive suggestions of immunity). 16. On remand, the district court denied head of state immunity based on a Statement of Interest filed by the State Department urging denial of immunity. The United States Court of Appeals for the Fourth Circuit affirmed the denial of immunity. See Yousuf v. Samantar, 699 F.3d 763 (4th Cir. 2012), cert. denied 134 S. Ct. 897 (2014). The Fourth Circuit distinguished two kinds of immunity:  “head of state” immunity under which a sitting head of state is immune from the jurisdiction of a foreign state’s courts, id. at 769, and “foreign official” or “official acts” immunity under which foreign officials are immune from “ ‘claims arising out of their official acts while in office.’ ” Id. at 769, 774 (quoting Restatement (Third) of Foreign Relations Law § 464, reporter note 14). The Fourth Circuit held “that the State Department’s pronouncement as to head of state immunity is entitled to absolute deference.” Id. at 772. Such deference follows from the President’s power to receive ambassadors, which includes the power to recognize foreign heads of state. In this case, the Fourth Circuit reasoned that the defendant could not claim head of state immunity because the State Department “has never recognized Samantar as the head of state for Somalia” and does not currently recognize any “entity as the official government of Somalia, from which immunity would derive in the first place.” Id. The court also denied Samantar’s separate claim of foreign official immunity on the ground that the acts involved violated jus cogens norms of customary international law, and thus should be considered private rather than official acts. Id. at 775–​78.

198

198 E nforcement of Customary International L aw

Under this structural approach, when the political branches have exercised their constitutional authority to recognize a foreign nation or government, U.S. courts should uphold head of state immunity as an incident of recognition. In other words, under this approach, the Constitution itself—​ through the recognition power and its exercise—​requires courts to give immunity to the heads of state recognized by the political branches. Head of state immunity was originally part of the law of state-​state relations. Customary international law currently recognizes two kinds of immunity. Ratione personae is a status-​based immunity that provides sitting heads of state with absolute immunity from suit while in office.17 Ratione materiae is a conduct-​based immunity that shields former heads of state only for official acts taken while in office.18 Historically, if a court denied either form of immunity, it would have contradicted recognition and provided the offended nation with just cause for war. Today, respect for both forms of immunity remains an integral part of the political branches’ constitutional power to recognize foreign states, governments, and heads of state.19 Recognition by the political branches signifies that the United States will respect the rights of the state in question under the law of nations. Thus, failure by either state or federal courts to afford immunity to a sitting head of a state recognized by the United States would contradict the political branches’ decision to recognize the state or government in question. Under the Constitution’s allocation of powers, then, recognition provides heads of recognized foreign states with immunity in federal and state courts unless and until the political branches take action to abrogate such immunity.20 Understanding head of state immunity as an incident of recognition is more consistent with historical understandings of the Constitution and Supreme Court precedent than simply labeling it “common law” (as the Samantar Court did), “federal common law” (as the modern position would), or “state law” (as the revisionist position would). 17. See Curtis A. Bradley & Jack L. Goldsmith, Foreign Sovereign Immunity, Individual Officials, and Human Rights Litigation, 13 Green Bag 2d 9, 18 (2009). 18. Id. 19. See Chimène I. Keitner, The Common Law of Foreign Official Immunity, 14 Green Bag 2d 61, 70–​71 (2010). 20.  This understanding suggests that the Fourth Circuit correctly denied immunity in Samantar both because the United States did not recognize a government in Somalia and because the State Department informed the court that Samantar should not be granted immunity.

  199



Judicial Enforcement Against Foreign Nations

199

II Although the Supreme Court has long upheld the rights of recognized foreign nations under the law of state-​state relations, it has refused to hold such nations accountable for their violations of such law. As discussed in Chapters  3 and 4, the constitutional rationale for judicial application of the law of state-​state relations to uphold the rights of recognized foreign nations does not extend to judicial application of such law to constrain the conduct of those nations. To the contrary, the Constitution’s allocation of powers to the political branches to conduct diplomacy, issue reprisals, authorize captures, and declare and make war was traditionally understood to preclude U.S. courts from invalidating the acts of recognized foreign nations or otherwise holding them accountable for their violations of customary international law (absent congressional authorization). As discussed in Chapter  7, proponents of the modern position have erroneously conflated judicial application of the law of state-​state relations to uphold the traditional rights of foreign sovereigns with judicial application of modern customary international law to constrain the conduct of such sovereigns. Hence, they have invoked head of state immunity as evidence that courts should treat all forms of customary international law as federal law—​and enforce customary international law not only to uphold rights of foreign nations, but also to hold foreign nations accountable for violating such law. This approach, however, would contradict the Constitution’s allocation of powers by permitting courts to usurp the political branches’ exclusive authority to decide whether, when, and how to hold foreign nations accountable for their violations of international law. In keeping with this allocation of powers, the Supreme Court has consistently declined—​from the founding to the present—​to invalidate the acts of recognized foreign nations or otherwise hold foreign nations accountable for their violations of customary international law absent express authorization from the political branches to do so.

A The Supreme Court’s rationale in the early cases for declining to hold foreign nations accountable for violations of their obligations under the law of state-​state relations was that the Constitution’s exclusive allocation of powers to the political branches to pursue satisfaction through diplomacy, reprisals, and war precluded courts from attempting to redress such

200

200 E nforcement of Customary International L aw

violations on their own. As early as 1793, Chief Justice John Jay explained why the Constitution required courts to leave it to the political branches to decide whether the United States should hold a foreign nation accountable for its violation of U.S. rights under the law of nations: Such measures involve a variety of political considerations, such, for instance, as these:  Is it advisable immediately to declare war? Would it be more prudent first to remonstrate, or demand reparation, or direct reprisals? Are we ready for war? Would it be wise to risk it at this juncture, or postpone running that risk until we can be better prepared for it? These and a variety of similar considerations ought to precede and govern the decision of those who annul violated treaties, order reprisals, or declare war.21 Along these lines, in United States v. Peters,22 discussed in Chapter 4, the Supreme Court refused even to consider the legality of France’s condemnation of an American ship even though the original owner sought restoration on the ground that the ship’s capture by a French national violated America’s right to neutral use of the high seas under the law of state-​ state relations. The Peters Court characterized the district court’s decision to take jurisdiction of the case as being “in contempt of the government of the United States, against the laws of nations, and the treaties subsisting between the United States and the French Republic, and against the laws and customs of the United States.”23 In short, judicial intervention was inappropriate because the Constitution gave the political branches exclusive authority to decide whether, when, and how to hold France accountable for its violations of the law of nations. Two decades later, Chief Justice Marshall made similar observations in several cases refusing to hold foreign nations accountable for alleged violations of U.S. rights. For example, in The Schooner Exchange v. McFaddon,24 the Supreme Court declined to decide whether French nationals had violated the law of nations by seizing an American ship on the high seas and 21. John Jay, Charge to Grand Jury, Richmond, Virginia (May 22, 1793), reprinted in 3 The Correspondence and Public Papers of John Jay 478, 484–​85 (Henry P.  Johnston ed., New York, G.P. Putnam’s Sons 1891) (emphasis omitted). 22. 3 U.S. (3 Dall.) 121 (1795). 23. Id. at 131 (emphases omitted). 24. 11 U.S. (7 Cranch) 116 (1812).

  201



Judicial Enforcement Against Foreign Nations

201

outfitting it as a French warship. The Court found an implied immunity for warships that only “the sovereign power of the nation” could destroy.25 Responding to the claim that France had violated the law of nations by improperly seizing a neutral American ship, Chief Justice Marshall stated that he found “great weight” in the argument “that the sovereign power of the nation is alone competent to avenge wrongs committed by a sovereign, that the questions to which such wrongs give birth are rather questions of policy than of law, [and] that they are for diplomatic, rather than legal discussion.”26 Similarly, in The Nereide,27 the claimants sought to hold a United States privateer liable for violating the neutral rights of Spain by capturing goods belonging to a neutral (Spanish) individual found on an enemy (English) vessel. The privateer urged the Court to uphold the capture on the ground that “Spain … would subject American property, under similar circumstances, to confiscation.”28 The Court emphatically rejected this defense on the ground “that reciprocating to the subjects of a nation, or retaliating on them, its unjust proceedings towards our citizens, is a political not a legal measure. It is for the consideration of the government not of its Courts.”29 Echoing Chief Justice Jay’s 1793 grand jury charge, Chief Justice Marshall explained why courts must leave any decision to hold foreign nations accountable for violating the law of nations to the political branches: The degree and the kind of retaliation depend entirely on considerations foreign to this tribunal. It may be the policy of the nation to avenge its wrongs in a manner having no affinity to the injury sustained, or it may be its policy to recede from its full rights and not to avenge them at all. It is not for its Courts to interfere with the proceedings of the nation and to thwart its views. It is not for us to depart from the beaten track prescribed for us, and to tread the devious and intricate path of politics.30

25. Id. at 146. 26. Id. at 145–​46. 27. 13 U.S. (9 Cranch) 388 (1815). 28. Id. at 422. 29. Id. 30. Id. at 422–​23.

202

202 E nforcement of Customary International L aw

Accordingly, the Nereide Court found the U.S.  privateer liable for violating Spain’s rights, but refused even to consider avenging Spain’s alleged policy in violation of U.S. rights.

B In Banco Nacional de Cuba v. Sabbatino,31 the Supreme Court offered essentially the same rationale—​albeit in more general terms—​for its refusal to hold Cuba accountable for its alleged violation of U.S. rights under customary international law. It is not entirely clear in Sabbatino whether Cuba was alleged to have violated a traditional right under the law of state-​state relations or a modern rule of customary international law. The distinction is not important in this context, however, because Sabbatino’s rationale would apply in either case. The reason U.S. courts historically have not enforced traditional rules of the law of nations against foreign nations applies equally, if not more so, to judicial enforcement of modern customary international law against recognized nations. All of the Supreme Court’s decisions—​ from Peters through Sabbatino—​involved requests that U.S. courts in some way hold a foreign nation accountable for violating the rights of the United States or its citizens under the law of nations or customary international law. In each case, the Court declined to redress the injury—​or even adjudicate whether a violation had occurred—​on the ground that the Constitution gave the political branches exclusive power to decide whether, when, and how to hold a foreign nation accountable for its misconduct. This rationale applies with at least as much force to a foreign nation’s alleged violation of the rights of its own citizens under modern customary international law. In keeping with this understanding, the Supreme Court has consistently declined to apply the law of nations or customary international law to hold a foreign nation accountable for violations of such law in the absence of clear instructions from the political branches to do so.32 Sabbatino is significant because it is the Supreme Court’s most recent decision to consider whether U.S. courts may hold a recognized foreign nation accountable for violating a rule of customary international law

31. 376 U.S. 398, 425 (1964). 32. The only cases in which U.S. courts have considered enforcing modern customary international law against foreign states or officials have been cases brought under the Alien Tort Statute (ATS), as discussed in Chapter 7. The question before the Supreme Court in these cases was whether Congress had authorized federal courts to hear the action under the ATS.

  203



Judicial Enforcement Against Foreign Nations

203

without formal authorization from the political branches. The Sabbatino Court held that U.S. courts may not question the validity of the official acts of a recognized foreign state taken within its own territory “even if [customary] international law has been violated.”33 The Sabbatino Court rested this holding not on international law, but on the Constitution’s allocation of powers to the political branches of the federal government. As discussed in Chapter  4, Sabbatino involved Cuba’s nationalization of sugar companies located in Cuba, but partly owned by Americans. Cuba sought to recover the proceeds from sugar sales following the expropriation. The original owners claimed that Cuba had violated a rule of customary international law that prohibited discriminatory takings of private property without compensation. Cuba invoked the act of state doctrine to uphold its title and shield its conduct from judicial scrutiny. The Supreme Court applied the act of state doctrine to resolve the case in favor of Cuba. According to the Sabbatino Court, the act of state doctrine “precludes the courts of this country from inquiring into the validity of the public acts a recognized foreign sovereign power committed within its own territory.”34 Although the Court acknowledged that “international law does not require application of the [act of state] doctrine,”35 it nonetheless chose to adhere to the doctrine in its “traditional formulation.”36 The Court did so because it felt “constrained to make it clear that an issue concerned with a basic choice regarding the competence and function of the Judiciary and the National Executive in ordering our relationships with other members of the international community must be treated exclusively as an aspect of federal law.”37 The Supreme Court confirmed the constitutional rationale for the act of state doctrine a quarter century later when it characterized the doctrine as “a consequence of domestic separation of powers, reflecting ‘the strong sense of the Judicial Branch that its engagement in the task of passing on the validity of foreign acts of state may hinder’ the conduct of foreign affairs.”38

33. Sabbatino, 376 U.S. at 431. 34. Id. at 401. 35. Id. at 421. 36. Id. at 401. 37. Id. at 425. 38.  W.S. Kirkpatrick & Co. v.  Envtl. Tectonics Corp., 493 U.S. 400, 404 (1990) (quoting Sabbatino, 376 U.S. at 423).

204

204 E nforcement of Customary International L aw

In applying the act of state doctrine, the Supreme Court refused to enforce an asserted rule of customary international law that would have constrained Cuba’s traditional territorial sovereignty. The Sabbatino Court’s rationale sounded in general notions of separation of powers, particularly the need for courts to refrain from taking action that could interfere with the executive branch’s conduct of foreign relations. On the one hand, the Court stressed the potential negative consequences of “courts characterizing foreign expropriations, however justifiably, as invalid under international law.”39 “Such decisions would, if the acts involved were declared invalid, often be likely to give offense to the expropriating country” because “the concept of territorial sovereignty is so deep seated.”40 On the other hand, “[c]‌onsiderably more serious and far-​reaching consequences would flow from a judicial finding that international law standards had been met if that determination flew in the face of a State Department proclamation to the contrary.”41 Such a finding would interfere with the executive branch’s role “as an advocate of standards it believes desirable for the community of nations and protective of national concerns.”42 Either way, the Court concluded, “the possibility of conflict between the Judicial and Executive Branches could hardly be avoided.”43 As noted in Chapter 4, the Supreme Court’s holding could have drawn additional support from the Constitution’s specific allocation of powers to the political branches. Before the advent of modern customary international law, the political branches’ recognition of a foreign sovereign required courts to respect the traditional rights of the sovereign in question—​including the traditional right to territorial sovereignty. At the same time, the Constitution’s allocation of the reprisal, captures, and war powers to the political branches prohibited courts from acting on their own to hold recognized foreign nations accountable for violating customary international law. Under any reading of Sabbatino’s constitutional rationale, it is clear that the Court did not consider uncodified customary international law to have the status of federal law in and of itself, or to be judicially enforceable against foreign nations. On the contrary, the Court openly refused to apply 39. Sabbatino, 376 U.S. at 430. 40. Id. at 431–​32. 41. Id. at 432. 42. Id. at 433. 43. Id.

  205



Judicial Enforcement Against Foreign Nations

205

such law against a recognized foreign nation because the Constitution’s allocation of powers constrained it from doing so. This understanding of the Constitution’s allocation of powers has prevailed in the Supreme Court from the founding to the present. In all relevant cases, the Court has held that—​in the absence of political branch authorization—​U.S.  courts lack constitutional authority to hold foreign nations accountable for their violations of customary international law.

C Although the Supreme Court has understood the Constitution’s allocation of powers to preclude courts from unilaterally holding foreign nations accountable for their violations of customary international law, the Constitution authorizes Congress and the President to determine whether, when, and how the United States should redress such misconduct. As Chief Justice Marshall explained in The Nereide,44 “retaliating” against foreign nations “is a political not a legal measure.”45 For this reason, “[t]‌he degree and the kind of retaliation” depend on political considerations that fall outside judicial competence and authority.46 In the exercise of their constitutional powers, the political branches may decide whether it should “be the policy of the nation to avenge its wrongs in a manner having no affinity to the injury sustained,” or whether it should “be its policy to recede from its full rights and not to avenge them at all.”47 Congress and the President also have the option to enlist the assistance of courts in holding foreign nations or officials accountable for their violations of customary international law. An early example of how this allocation of powers worked in practice occurred during the so-​called Quasi-​War with France. Following President Washington’s Proclamation of Neutrality during France’s war with Great Britain, France began to target American ships. As discussed in Chapter 4, U.S. courts typically took a hands-​off approach, leaving the political branches to decide whether and how to respond to French aggression.48 Beginning in 1798, Congress responded by enacting a series of statutes authorizing certain 44. 13 U.S. (9 Cranch) 388 (1815). 45. Id. at 422. 46. Id. 47. Id. 48. See, e.g., United States v. Peters, 3 U.S. (3 Dall.) 121 (1795) (refusing to restore a ship to an American owner after it was allegedly captured by the French in violation of the law of nations).

206

206 E nforcement of Customary International L aw

hostile actions against French vessels.49 According to Chief Justice Marshall, these statutes “commenced a general resistance to the aggressions we had so long experienced and submitted to.”50 As Justice Salmon P. Chase explained, although “Congress has not declared war in general terms; … [it] has authorised hostilities on the high seas by certain persons in certain cases.”51 For this reason, he characterized the conflict with France as “a limited, partial, war.”52 This “partial” or “quasi” war authorized U.S. courts to uphold captures of French ships on the terms prescribed by Congress.53 Even though Congress authorized certain hostile actions against France, the Supreme Court was careful not to take additional actions beyond those specifically authorized by Congress. For example, in Little v. Barreme,54 the Court disallowed a U.S. capture that Congress had not authorized, and upheld an award of damages against the captain who made the capture. One of the statutes enacted by Congress during the Quasi-​War with France prohibited ships owned, hired, or employed by U.S.  residents from proceeding “to any port or place within the territory of the French Republic, or the dependencies thereof.”55 The statute declared that ships violating this prohibition shall be liable to be seized and forfeited in a condemnation proceeding in U.S. courts.56 In addition, the statute authorized the President “to give instructions to the commanders of the public armed ships of the United States” to examine ships of the United States on the high seas and to seize any ships determined to be “bound or sailing to any port or place within the territory of the French Republic, or her dependencies.”57 The President thereafter more expansively instructed the commanders of the armed vessels of the United States to prevent all intercourse “between the ports of the United States, and those of France and her dependencies.”58 He also

49. See Act of May 28, 1798, ch. 48, 1 Stat. 561, 561; Act of June 28, 1798, ch. 62, §1, 1 Stat. 574, 574; Act of July 9, 1798, ch. 68, §1, 1 Stat. 578, 578. 50. Talbot v. Seeman, 5 U.S. (1 Cranch) 1, 35 (1801). 51. Bas v. Tingy, 4 U.S. (4 Dall.) 37, 43 (1800). 52. Id. 53. See Talbot, 5 U.S. at 35–​36. 54. 6 U.S. (2 Cranch) 170 (1804). 55. Id. at 177 (emphasis omitted). 56. Id. 57. Id. at 171 (emphasis omitted). 58. Id. (emphasis added and omitted).

  207



Judicial Enforcement Against Foreign Nations

207

urged the commanders not to let American vessels “bound to or from French ports” escape.59 In accordance with the President’s instructions (but going beyond the terms of the statute), Captain George Little seized a Danish ship sailing from a French port, brought it to Boston, and sought to have the ship and its cargo condemned under the statute. The district court directed restoration of the ship and cargo as neutral property, but declined to award damages against Captain Little for his capture and detention of the ship. On appeal, the circuit court held that damages were appropriate (in addition to restoration) because the capture was not authorized by statute. The Supreme Court affirmed the circuit court’s decision and held that Little was liable for damages. The Court acknowledged that Little’s actions were consistent with the President’s orders, but concluded that orders in excess of statutory limits “cannot … legalize an act which without those instructions would have been a plain trespass.”60 Little illustrates the Court’s traditional understanding that U.S. courts may not take or uphold actions against a foreign nation for its misconduct unless Congress has plainly authorized them to do so.61 There are, of course, examples of federal statutes that expressly authorize courts to hold foreign nations or actors accountable for violating customary international law. Congress enacted the Second Hickenlooper Amendment to the Foreign Assistance Act62 immediately after the Sabbatino Court refused to invalidate an act of Cuba alleged to violate customary international law. As codified, the Amendment authorized U.S. courts to invalidate confiscatory acts of state that violate certain rules of customary international law, and provided in pertinent part: Notwithstanding any other provision of law, no court in the United States shall decline on the ground of the federal act of state doctrine

59. Id. at 178 (emphasis added and omitted). 60. Id. at 179. 61. Of course, Little v. Barreme is also at the heart of an ongoing debate about the relative constitutional war powers of Congress and the President, a matter beyond the scope of this book. For a discussion of some of these issues, see David J. Barron & Martin S. Lederman, The Commander in Chief at the Lowest Ebb—​A Constitutional History, 121 Harv. L. Rev. 941, 967–​70 (2008); Anthony J. Bellia Jr. & Bradford R. Clark, The Political Branches and the Law of Nations, 85 Notre Dame L. Rev. 1795 (2010); Henry P. Monaghan, The Protective Power of the Presidency, 93 Colum. L. Rev. 1, 24–​38 (1993). 62.  See Foreign Assistance Act of 1964 (Hickenlooper Amendment), Pub. L.  No. 88-​633, §§ 301(d)(4), 620(e)(2), 78 Stat. 1009, 1013 (codified as amended at 22 U.S.C. § 2370(e)(2) (2000)).

208

208 E nforcement of Customary International L aw

to make a determination on the merits giving effect to the principles of international law in a case in which a claim of title or other right to property is asserted by any party including a foreign state (or a party claiming through such state) based upon (or traced through) a confiscation or other taking after January 1, 1959, by an act of that state in violation of the principles of international law, including the principles of compensation and the other standards set out in this subsection … .63 In crafting this specific exception to the act of state doctrine, Congress presumed that federal courts would otherwise continue to apply the act of state doctrine. On the basis of this intervening statutory exception, however, the Second Circuit declined to apply the act of state doctrine on remand in Sabbatino, and denied Cuba’s claim to the proceeds from the expropriated sugar.64 Congress again expressly enlisted U.S.  courts to enforce certain aspects of customary international law in the Torture Victim Protection Act of 1991 (TVPA).65 The Act gives individuals (including aliens) an express federal statutory cause of action against other individuals (including aliens) for acts of torture and extrajudicial killing taken under color of law of any foreign nation.66 Congress enacted the TVPA in response to conflicting lower court interpretations of the Alien Tort Statute (ATS), a jurisdictional provision of the Judiciary Act of 1789 that, as explained in Chapter 7, largely lay dormant until 1980.67 Rather than revise or amend

63. 22 U.S.C. § 2370(e)(2) (2000). The Amendment permits the President to suspend this provision in the foreign policy interests of the United States. See id. (providing that “this subparagraph shall not be applicable … in any case with respect to which the President determines that application of the act of state doctrine is required in that particular case by the foreign policy interests of the United States and a suggestion to this effect is filed on his behalf in that case with the court”). 64. See Banco Nacional de Cuba v. Farr, 383 F.2d 166, 178 (2d Cir. 1967). 65. Pub. L. No. 102-​256, 106 Stat. 73 (1992) (codified at 28 U.S.C. § 1350 note). 66. Id. 67.  See Tel-​Oren v Libyan Arab Republic, 726 F2d 774 (DC Cir 1984)  (disallowing Israeli citizens to use the ATS to sue the Palestine Liberation Organization for an armed attack on a civilian bus that killed and injured civilians in Israel); Filartiga v Pena-​Irala, 630 F2d 876 (2d Cir 1980) (allowing citizens of Paraguay to use the ATS to sue another citizen of Paraguay for wrongfully causing their son’s death in Paraguay by the use of torture). For a discussion of these decisions, see Bradford R. Clark, Tel-​Oren, Filartiga, and the Meaning of the Alien Tort Statute, 80 U. Chi. L. Rev. Dialogue 177 (2013).

  209



Judicial Enforcement Against Foreign Nations

209

the ATS, Congress chose to enact a substantive statute authorizing the judiciary to redress certain egregious violations of customary international law. As in the case of the Second Hickenlooper Amendment, federal courts have not hesitated to adjudicate these violations of customary international law given the TVPA’s unambiguous authorization of such adjudication.68 A final example involves congressional abrogation of foreign sovereign immunity. As discussed above, recognized foreign nations traditionally enjoyed absolute sovereign immunity in U.S.  courts under the law of state-​state relations.69 Congress codified foreign sovereign immunity in the FSIA, but authorized courts to recognize several important exceptions. The statute provides that foreign states are “immune from the jurisdiction of the courts of the United States and of the States except as provided” in the FSIA.70 The statute contains several exceptions that abrogate immunity for claims involving “commercial activity,”71 “property taken in violation of international law,”72 and acts of terrorism such as “torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support” for such activities.73 These provisions expressly authorize federal courts to hear certain claims against foreign nations, notwithstanding their traditional sovereign immunity. Although the FSIA permitted victims of state-​sponsored terrorism to sue a foreign nation in federal court, enforcement of any resulting judgment remained difficult. When the terrorism exception was adopted, the FSIA permitted enforcement only against foreign-​state property located in the United States used for commercial activity,74 and shielded from execution property “of a foreign central bank or monetary authority held for its own account.”75 In 2002, Congress made execution of such judgments easier by permitting execution against “the blocked assets of [a]‌ 68. See, e.g., Ford ex rel. Estate of Ford v. Garcia, 289 F.3d 1283 (11th Cir. 2002). 69. See Verlinden B.V. v. Cent. Bank of Nigeria, 461 U.S. 480, 486 (1983). 70. 28 U.S.C. § 1604 (2012). 71. Id. § 1605(a)(2). 72. Id. § 1605(a)(3). 73. Id. § 1605A(a)(1). 74. Id. §§ 1610(a)(7), (b)(3). 75. Id. § 1611(b)(1).

210

210 E nforcement of Customary International L aw

terrorist party”76 designated by the executive branch pursuant to other statutes.77 In 2016 in Bank Markazi v.  Peterson, the Supreme Court upheld Congress’s power to permit the execution of terrorism-​related judgments in these ways.78 The case involved consolidated suits against the Islamic Republic of Iran for various state-​sponsored acts of terrorism, including the 1983 bombing of the U.S. Marines barracks in Beirut, Lebanon. After obtaining default judgements against Iran, the claimants sought to enforce their judgments against assets held in a New York bank on behalf of Bank Markazi (Iran’s Central Bank). Iran contested enforcement on the ground that the assets in question were held by a financial intermediary on behalf of Bank Markazi and thus were not assets of the Bank itself. Congress responded by enacting another statute specifying that the assets in question were available to satisfy any judgments for terrorism-​related activities under the FSIA.79 Bank Markazi challenged the subsequent statute on a variety of constitutional grounds, including Article III and separation of powers. The Supreme Court rejected these challenges and stressed that the statute was “an exercise of congressional authority regarding foreign affairs, a domain in which the controlling role of the political branches is both necessary and proper.”80 Although historically Iran would have been immune from suit in U.S. courts, Congress abrogated its traditional immunity in a series of statutes granting federal courts jurisdiction over certain claims and facilitating execution of judgments against certain assets. According to the Court, these statutes did not violate the Constitution’s separation of powers, but instead were a proper exercise of the political branches’ express constitutional powers “over claims against foreign states and

76. Terrorism Risk Insurance Act of 2002, §201(a), Pub. L. 107-​297, 116 Stat. 2337 (codified at 28 U.S.C. § 1610 note) (TRIA). 77. Section 201(d)(2) of the TRIA provides that “blocked assets” are those seized by the executive branch pursuant to the Trading With the Enemy Act, ch. 106, 40 Stat. 411 (1917) (codified at 50 U.S.C. App. 1), or the International Emergency Economic Powers Act, Pub. L. 95-​223, 91 Stat. 1625 (1977) (codified at 50 U.S.C. § 1570). 78. 136 S. Ct. 1310 (2016). 79. See Iran Threat Reduction and Syria Human Rights Act of 2012, Pub. L. 112-​158, § 502, 126 Stat. 1214, 1258 (codified at 22 U.S.C. § 8772). 80. Bank Markasi, 136 S. Ct. at 1328.

  211



Judicial Enforcement Against Foreign Nations

211

the disposition of foreign-​state property in the United States.”81 Like the Second Hickenlooper Amendment, the statutes that permitted recovery in Bank Markazi expressly authorized courts to proceed against foreign nations to redress their violations of international law. U.S.  courts have historically declined to apply traditional rules of the law of state-​state relations to constrain or redress the conduct of foreign nations, governments, or officials unless the courts had proper authorization from the political branches to do so. This practice is in keeping with the Constitution’s allocation of exclusive power to the political branches to conduct diplomacy, issue reprisals, authorize captures, and commence and conduct war. This allocation of powers gave the political branches exclusive constitutional authority to decide whether, when, and how to hold foreign nations accountable for violating the law of nations. This structural rationale applies equally to alleged violations of modern customary international law by foreign nations. From the founding to the present, the Court has never taken it upon itself to hold foreign nations accountable for their alleged violations of the law of nations or customary international law. Were U.S.  courts to undertake this role without clear authorization from the political branches, courts would be making decisions that the Constitution reserves exclusively to the political judgment of Congress and the President.

81. Id. As discussed in Chapter 4, the Supreme Court invalidated the confiscation of British property found in the United States during the War of 1812 because Congress had not clearly authorized such action. See Brown v. United States, 12 U.S. (8 Cranch) 110 (1814). In Peterson, by contrast, the Court upheld execution of certain judgments against Iranian assets in the United States because Congress expressly authorized this course.

212

  213

9

Judicial Enforcement of Customary International Law Against the United States

This chapter considers when—​ in light of historical understandings and judicial practice—​U.S. courts may apply uncodified customary international law to constrain or redress actions by the United States or its officials. Although customary international law generally binds the United States as a matter of international law, the United States—​like all nations—​decides for itself whether, when, and how its domestic legal system will enforce such law. As explained in Chapter  1, the individual states received the law of nations as part of the common law of England after declaring their independence from Great Britain. The Constitution, however, contained no provisions generally adopting either the common law or the law of nations as the supreme law of the land. Instead, the Constitution included various provisions giving the federal government the means to uphold the rights of foreign states under the law of state-​state relations as then understood, to enforce U.S. rights under the same law, and to facilitate judicial application of the law merchant, the law of state-​ state relations, and the law maritime in appropriate cases. These provisions enabled the United States to take certain actions thought necessary at the time to comply with and enforce the law of nations. As discussed in prior chapters, the law of state-​state relations was arguably the most important branch of the law of nations at the founding because it governed relations between nations and determined questions of war and peace. The Constitution empowered the political branches of The Law of Nations and the United States Constitution. Anthony J. Bellia Jr. and Bradford R. Clark. © Oxford University Press 2017. Published 2017 by Oxford University Press.

214

214 E nforcement of Customary International L aw

the federal government to recognize foreign nations and governments through the traditional means of making treaties, exchanging ambassadors, and enacting legislation. Once the political branches recognized a foreign nation or government, the Constitution required U.S.  courts to uphold the incidents of recognition until the political branches directed otherwise. Specifically, recognition signified that the United States—​ including its courts—​ would uphold the rights of foreign sovereigns under the law of state-​state relations. Failure to uphold such rights would have both contradicted recognition and risked hostilities with the nation in question. Courts applied the law of state-​state relations in these circumstances not because the Constitution adopted such law, but because the political branches’ exercise of their constitutional power to recognize foreign nations obligated courts to respect recognition by upholding the rights accompanying that status. As discussed in Chapters 3 and 4, this allocation of powers rationale explains why U.S. courts have upheld the traditional rights of recognized foreign sovereigns against competing claims by U.S.  citizens. At the founding, recognition meant that one nation recognized another as a free and independent sovereign entitled to all of the rights and immunities established by the law of state-​state relations. These rights and immunities included sovereign immunity, diplomatic immunity, neutral use of the high seas, and the right to internal governance within a nation’s own territory. Once the United States formally recognized a foreign nation, that nation enjoyed all of these rights and immunities in U.S. courts with no further action by the political branches. The act of recognition alone was sufficient to compel courts to uphold these rights and immunities. Of course, the political branches could (and sometimes did) alter or abrogate these rights, but until they did so the Constitution obligated courts to respect the traditional rights of recognized nations under the law of state-​ state relations. Although recognition required U.S. courts to uphold the rights of foreign nations, recognition alone was not historically understood to require or permit U.S.  courts to enforce customary international law to restrict how the United States treated its own citizens within its own territory. Customary international law did not historically apply to such internal affairs, and thus recognition signified nothing about how a nation would govern itself. As discussed in Chapter 6, modern customary international law differs from—​and, indeed, overturns a basic premise of—​the traditional law of state-​state relations by restricting how nations treat their own

  215



Judicial Enforcement Against the United States

215

citizens within their own territory. Under the law of state-​state relations as it existed at the founding, recognition signified only how one nation and its citizens would treat another nation and its citizens. The law of state-​state relations did not govern how one nation treated its own citizens within its own territory. To the contrary, the law of state-​state relations affirmatively prohibited one nation from attempting to regulate the internal conduct of another nation. Recognition thus served to protect a nation’s authority within its own territory, not to limit it. Any suggestion that U.S.  recognition of another nation now authorizes U.S.  courts to enforce modern customary international law to limit how the United States treats its own citizens would both redefine the long-​settled meaning of recognition and violate other provisions of the Constitution—​specifically, those that establish separation of powers, checks and balances, and the political and procedural safeguards of federalism. Although historical understandings and judicial practice suggest that U.S. courts should uphold the traditional rights of recognized foreign sovereigns against the United States, they do not establish the quite different proposition that U.S. courts may enforce modern customary international law against the United States without specific authorization from the political branches to do so.

I Before examining whether U.S.  courts may enforce modern customary international law against the United States, it is worth reiterating the constitutional basis upon which U.S. courts have enforced the traditional rights of recognized foreign nations under the law of state-​state relations against the United States. In light of this background, Section II will analyze whether the structural rationale for judicial enforcement of the traditional rights of recognized foreign nations against the United States extends to judicial enforcement of modern customary international law against the United States.

A At the founding, recognition signified that one nation would respect the sovereign rights of another. These rights concerned how one nation and its citizens would treat another nation and its citizens. For example, the law of state-​state relations gave nations rights to neutral use of the high seas,

216

216 E nforcement of Customary International L aw

to conduct diplomatic relations, and to govern their own citizens within their own territory. U.S.  courts routinely enforced these rights against Americans in favor of foreign nations recognized by the United States. Failure of U.S. courts to uphold the rights of recognized foreign nations under the law of state-​state relations would have contradicted recognition and risked embroiling the United States in hostilities—​or even war—​with the nation in question. Several examples, discussed at length in earlier chapters, illustrate this traditional consequence of recognition. In United States v.  Peters,1 James Yard, an American citizen, filed a libel action in U.S. district court against the Cassius, a ship commissioned by France to cruise against enemy vessels. Yard alleged that the Cassius had improperly captured his neutral U.S. vessel on the high seas and that a French court had erroneously condemned it as a lawful prize. Yard sought recovery against the Cassius for the improper capture. The Supreme Court did not decide Yard’s claim that the Cassius (and thus France) had violated his right to neutral use of the high seas. Instead, the Court dismissed his action on the ground that U.S. courts could not second-​ guess a French prize court’s determination that the prize was lawful. Under the law of state-​state relations, nations had the right to adjudicate the legality of prizes captured by their vessels, and the courts of other nations were obligated to accept their decisions. If the injured party wished to pursue a claim, he could seek to have his government espouse his claim or take other actions such as retorsion, reprisal, or even war. Absent authorization from the political branches to second-​guess France’s prize determinations, however, U.S. courts were bound by the Constitution’s allocation of powers to uphold France’s right to adjudicate the prize. In keeping with these principles, the Peters Court dismissed Yard’s action in order to uphold the rights of a recognized foreign nation under the law of state-​state relations and to avoid “disturb[ing] the peace and harmony subsisting between the United States and the French Republic.”2 Respect for the rights of recognized foreign nations under the law of state-​state relations also led the Supreme Court to apply the so-​called Charming Betsy canon, as explained in Chapter  4, to uphold the neutral rights of a recognized foreign nation against an American claimant. In Murray v. The Schooner Charming Betsy,3 the Court construed the 1. 3 U.S. (3 Dall.) 121 (1795). 2. Id. at 131-​32 (emphasis omitted). 3. 6 U.S. (2 Cranch) 64 (1804).

  217



Judicial Enforcement Against the United States

217

Non-​Intercourse Act of 1800 narrowly to avoid interference with another nation’s rights.4 Although the Act prohibited commercial intercourse between residents of the United States and residents of any French territory, it did not specify its impact on neutral nations. The case considered the legality of the seizure of an American-​built Danish vessel purchased at a Danish island from an American captain and used by an American-​born Danish burgher to conduct trade with a French island.5 If found to have been authorized by the Act, the seizure would have violated Denmark’s right under the law of state-​state relations to engage in neutral commerce on the high seas. The Court rejected the capture because it construed the Non-​Intercourse Act not to authorize seizure of the vessel. According to the Court, a federal statute “ought never to be construed to violate the law of nations if any other possible construction remains, and consequently can never be construed to violate neutral rights, or to affect neutral commerce, further than is warranted by the law of nations as understood in this country.”6 The Court added that if Congress had intended to restrict Denmark’s neutral rights, “such extraordinary intent ought to have been plainly expressed.”7 The Supreme Court’s decision in The Nereide8 also upheld the rights of recognized nations under the law of state-​state relations against the United States. The case involved the question whether a federal court should hold a U.S. privateer liable for violating the neutral rights of Spain by capturing goods belonging to a neutral (Spanish) individual found on an enemy (English) vessel during the War of 1812. The privateer asked the Court not to enforce Spain’s rights on the ground that “Spain … would subject American property, under similar circumstances, to confiscation.”9 The Court rejected this argument on the ground “that reciprocating to the subjects of a nation, or retaliating on them, its unjust proceedings towards our citizens, is a political not a legal measure. It is for the consideration of the government not of its Courts.”10 Accordingly, the Court upheld Spain’s

4. Non-​Intercourse Act, ch. 10, § 1, 2 Stat. 7, 8 (1800) (expired 1801). 5. Charming Betsy, 6 U.S. (2 Cranch) at 64–​65, 120–​21. 6. Id. at 118. 7. Id. at 119. 8. 13 U.S. (9 Cranch) 388 (1815). 9. Id. at 422. 10. Id.

218

218 E nforcement of Customary International L aw

neutral rights and affirmed that the U.S. privateer was liable in damages for the capture. In these cases, the Supreme Court enforced the traditional rights of recognized foreign nations under the law of state-​state relations to constrain or redress actions by the United States or its citizens. The rights in question were well known to the founders as part of the background law against which the recognition power was adopted and exercised. Accordingly, judicial enforcement of these rights was necessary to uphold the Constitution’s allocation of powers to the political branches.

B The Supreme Court has enforced not only the rights of recognized foreign nations known to the founders, but also rights that emerged over time. In The Paquete Habana,11 for example, the Court enforced a new right under the law of state-​state relations that did not exist at the founding. The case arose during the Spanish-​American War when U.S. naval forces captured two Spanish fishing vessels attempting to reach the Spanish colony of Cuba. A U.S. district court condemned the vessels and cargoes as prizes of war, but the Supreme Court determined that coastal fishing vessels were exempt from capture under an emerging practice of nations that had “gradually ripen[ed] into a rule of international law.”12 The Court stressed that U.S. courts must ascertain and administer international law “as often as questions of right depending upon it are duly presented for their determination.”13 The Paquete Habana, Peters, The Schooner Charming Betsy, and The Nereide all involved “questions of right” under the law of state-​state relations on behalf of a recognized foreign nation. In all of these cases, the Supreme Court upheld the rights of recognized foreign nations to defeat contrary claims by Americans. These rights were either established at the founding or emerged later as part of the customary law governing state-​ state relations. Extending judicial recognition to newly-​emerging rights did not require an unwarranted extension of the Supreme Court’s structural rationale for upholding the rights of recognized foreign nations against

11. 175 U.S. 677 (1900). 12. Id. at 686. 13. Id. at 700.

  219



Judicial Enforcement Against the United States

219

the United States. The Court has long upheld the rights of recognized nations as a means of respecting the Constitution’s allocation of powers to the political branches, including the power to recognize foreign nations. Since the founding, recognition has signified that the United States recognizes the rights of foreign nations under the law of state-​state relations. Accordingly, failure by U.S. courts to respect such rights would contradict the political branches’ exercise of their constitutional power to recognize foreign nations. The same rationale provides a constitutional basis for U.S.  courts to uphold later emerging rights of recognized foreign nations against the United States, such as the immunity of coastal fishing vessels. Such rights did not exist when the Constitution was adopted, but—​like traditional rights—​they govern how one nation and its citizens treat another nation and its citizens. When two nations recognize each other, recognition signifies that each nation will uphold those international rights and obligations that independent nations customarily uphold in their relations with each other. Once such rights and obligations attain the status of customary international law, they become part of the presumed meaning of recognition. The United States remains free to abrogate any or all of these rights and obligations, but—​under the Constitution’s allocation of powers—​such abrogation requires action by the political branches, not the courts.

C Although the Supreme Court has instructed U.S. courts to uphold newly emerging rights of recognized foreign nations against the United States, it has not permitted U.S. courts to disregard the old rights of such nations against the United States, even when they no longer enjoy general acceptance. Banco Nacional de Cuba v.  Sabbatino14—​discussed at length in Chapter 4—​illustrates this phenomenon. Following Cuba’s expropriation of Cuban sugar companies owned in part by U.S. citizens, a dispute arose regarding who was entitled to the proceeds of subsequent sugar sales—​ Cuba or the original owners. Cuba invoked the act of state doctrine to prevent U.S. courts from invalidating its acts of confiscation (and thus its right to the proceeds). The original owners argued that customary international law no longer recognized Cuba’s territorial sovereignty in these

14. 376 U.S. 398 (1964).

220

220 E nforcement of Customary International L aw

circumstances and in fact prohibited the kind of discriminatory expropriation of private property that Cuba had undertaken in this case. The Supreme Court ruled in favor of Cuba on the ground that, “in the absence of a treaty or other unambiguous agreement regarding controlling legal principles,” U.S. courts may “not examine the validity of a taking of property within its own territory by a foreign sovereign government, extant and recognized by this country at the time of suit, … even if the complaint alleges that the taking violates customary international law.”15 Sabbatino would have been an unremarkable decision had it occurred decades earlier. The law of state-​state relations traditionally recognized a nation’s right to govern within its own territory, and the act of state doctrine reflected this tradition. By 1964, however, customary international law increasingly recognized exceptions to territorial sovereignty and did not require strict adherence to the act of state doctrine in all circumstances. Nonetheless, the Sabbatino Court chose to adhere to the act of state doctrine in its “traditional formulation”16 even though the original owners alleged that Cuba’s conduct violated customary international law. The effect of the Court’s decision was to shield the conduct of a recognized foreign nation taken within its own territory from scrutiny in U.S. courts unless and until the political branches affirmatively authorized such scrutiny. Taken together, The Paquette Habana and Sabbatino instruct U.S. courts to enforce both traditional and newly-​ emerging rights of recognized nations against the United States under customary international law, but not to curtail the traditional rights of such nations even if customary international law now does so. In other words, the Court has understood the Constitution to require U.S. courts to expand the effect of recognition to include respect for the new customary rights of foreign nations against the United States, but not to contract the effect of recognition to limit the traditional rights of such nations against the United States. The first proposition appears to assume that expanding the rights of recognized foreign nations (in accordance with customary international law) is necessary to avoid judicial interference with the political branches’ conduct of foreign relations. The second proposition appears to presuppose that contracting the rights of recognized foreign nations would constitute just such interference. Of course, as discussed in Section III of this chapter, the political

15. Id. at 428. 16. Id. at 401.

  221



Judicial Enforcement Against the United States

221

branches—​as opposed to courts—​have full authority to alter U.S. foreign relations by curtailing the rights of recognized foreign nations as they see fit. An alternative rationale for the Court’s decision in Sabbatino—​as we suggested in Chapter  4—​is that the Constitution’s allocation of powers requires courts to refrain from holding foreign nations accountable for violating customary international law unless the political branches have given them express authorization to do so. As the Court noted in Sabbatino, although customary international law does not require the act of state doctrine, judicial invalidation of acts such as Cuba’s would be likely to give offense to the expropriating country “since the concept of territorial sovereignty is so deep seated.”17 On this understanding, it is the prerogative of the political branches, not the courts, to decide whether to risk the consequences of holding other nations accountable for actions taken within their own territory in violation of customary international law. On either understanding—​that courts must apply the act of state doctrine as an incident of recognition or as a means of upholding the exclusive power of the political branches to decide whether to hold another nation accountable for violating U.S. rights—​the act of state doctrine, as described in Sabbatino, has “ ‘constitutional’ underpinnings”18 and “arises out of the basic relationships between branches of government in a system of separation of powers.”19 The “presumption against extraterritoriality” applied by the Supreme Court to limit the effect of U.S. statutes bears a close relation to the act of state doctrine. Both doctrines have their roots in traditional notions of territorial sovereignty under the law of state-​state relations, and both doctrines prevent U.S.  courts—​as opposed to Congress and the President—​from regulating activities within the territory of foreign nations. As explained in Chapter 3, each nation traditionally enjoyed the right to govern within its territorial domains under the law of state-​state relations. According to Vattel, no nation “[has] the least authority to interfere in the government of another state.”20 “Of all the rights that can belong to a nation, sovereignty

17. Id. at 432. 18. Id. at 431. 19. Id. at 423. 20. 2 Emmerich de Vattel, The Law of Nations bk. II, § 54, at 138 (London, J. Newberry et al. 1759).

222

222 E nforcement of Customary International L aw

is, doubtless, the most precious, and that which others ought the most scrupulously to respect, if they would not do it an injury.”21 Interference with another nation’s governance of its own citizens within its own territory constituted just cause for war. Of course, in the case of a civil war, nations could choose sides by assisting the rebellion.22 Such action, however, posed a serious risk of retaliation by the original sovereign, and thus any decision to intervene in a civil war was understood to be a political rather than legal decision. Following Sabbatino, the Supreme Court has continued to respect foreign sovereignty—​and the Constitution’s allocation of powers—​by applying a presumption against the extraterritorial application of U.S. laws. This presumption is a canon of statutory construction used to interpret acts of Congress. U.S.  courts will not read an act of Congress to apply beyond the territory of the United States unless Congress has made clear that the statute applies extraterritorially. This presumption ensures that the political branches—​rather than the courts—​make the fundamental decision to apply U.S. law to events that occur within the territory of other nations. In 2010, in Morrison v.  National Australia Bank, the Supreme Court described the presumption against extraterritoriality as follows: It is a longstanding principle of American law that legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States. This principle represents a canon of construction, or a presumption about a statute’s meaning, rather than a limit upon Congress’s power to legislate. It rests on the perception that Congress ordinarily legislates with respect to domestic, not foreign matters. Thus, unless there is the affirmative intention of the Congress clearly expressed to give a statute extraterritorial effect, we must presume it is primarily concerned with domestic conditions. The canon or presumption applies regardless of whether there is a risk of conflict between the American statute and a foreign law. When a statute gives no clear indication of an extraterritorial application, it has none.23

21. Id. 22. Id. § 56, at 139. 23. 561 U.S. 247, 255 (2010) (internal quotation marks and citations omitted).

  223



Judicial Enforcement Against the United States

223

In Morrison, the Court applied the presumption to hold that the Securities Exchange Act does not provide “a cause of action to foreign plaintiffs suing foreign and American defendants for misconduct in connection with securities traded on foreign exchanges.”24 By applying the presumption, U.S. courts avoid imputing to Congress the intent to regulate matters traditionally with the exclusive regulatory jurisdiction of another nation. Although the presumption requires Congress to legislate with greater clarity, it does not mean that Congress lacks authority to regulate matters within the territorial jurisdiction of another nation. Instead, the presumption ensures that courts will read statutes to apply extraterritoriality only when they are confident that Congress has manifested a clear intent to that effect.25 Understood in these terms, the presumption against extraterritoriality is an application of the Charming Betsy canon. As discussed in Chapter 4, the Charming Betsy Court explained that a federal statute “ought never to be construed to violate the law of nations if any other possible construction remains.”26 That case involved a potential violation of the law of state-​ state relations based on interference with another nation’s neutral rights on the high seas.27 At the founding, however, the law of state-​state relations also generally prohibited one country from attempting to regulate matters within the territorial jurisdiction of another. Broadly understood, the Charming Betsy canon instructed courts to construe federal statutes to respect not only foreign nations’ neutral rights, but all of their perfect rights under the law of state-​state relations, including the right to govern within their territory. Thus, like the Charming Betsy canon, the presumption against extraterritoriality ensured that U.S. courts did not disregard the incidents of recognition or give another nation just cause to retaliate against the United States absent clear congressional authorization. Even though customary international law has increasingly recognized exceptions to territorial sovereignty, U.S.  courts continue to apply 24. Id. at 250–​51. 25. Judicial doctrines designed to avoid unauthorized interference with the territorial sovereignty of other nations date back at least to the Marshall Court. See, e.g., The Apollon, 22 U.S. (9 Wheat.) 362, 370 (1824) (“The laws of no nation can justly extend beyond its own territories, except so far as regards its own citizens.”). 26. Murray v. The Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804). 27. Id. (explaining that a federal statute “can never be construed to violate neutral rights, or to affect neutral commerce, further than is warranted by the law of nations as understood in this country”).

224

224 E nforcement of Customary International L aw

the presumption against extraterritoriality to U.S.  statutes, just as they continue to adhere to the act of state doctrine. Both doctrines uphold the traditional meaning of recognition, and both doctrines uphold the constitutional structure by ensuring that the political branches—​rather than courts—​make any decision on behalf of the United States to interfere with the territorial sovereignty of a recognized foreign nation. In 2013, the Supreme Court even applied the presumption against extraterritoriality to the Alien Tort Statute (ATS), a jurisdictional provision of the Judiciary Act of 1789 (discussed in Chapter 7). As enacted in 1789, the ATS provided that “the district courts … shall … have cognizance, concurrent with the courts of the several States, or the circuit courts, as the case may be, of all causes where an alien sues for a tort only in violation of the law of nations or a treaty of the United States.”28 In Kiobel v. Royal Dutch Petroleum Co., as explained in Chapter  7, a group of Nigerian nationals (living in the United States as legal residents) filed an ATS suit in federal court against certain Dutch, British, and Nigerian corporations, alleging that they aided and abetted the Nigerian government in committing various international human rights violations in Nigeria, including extrajudicial killings, crimes against humanity, and torture.29 The Supreme Court applied the presumption against extraterritoriality to restrict the application of the ATS and to affirm the dismissal of the case. The Kiobel Court acknowledged that the presumption ordinarily applies to determine the extraterritorial application of statutes regulating conduct, and that the ATS is “strictly jurisdictional” and “does not directly regulate conduct or afford relief.”30 Nonetheless, the Court determined that “the principles underlying the canon of interpretation similarly constrain courts considering causes of action that may be brought under the ATS.”31 In particular, the Court explained that “the danger of unwarranted judicial interference in the conduct of foreign policy is magnified in the context of the ATS.”32 To rebut the presumption against extraterritoriality, the ATS would have needed to evince a clear indication of extraterritoriality, and

28. Judiciary Act of 1789, ch. 20, § 9, 1 Stat. 73, 76–​77 (codified as amended at 28 U.S.C. § 1350 (2006)). 29. 133 S. Ct. 1659, 1662–​63 (2013). 30. Id. at 1664 (quoting Sosa v. Alvarez-​Machain, 542 U.S. 692, 713 (2004)). 31. Id. 32. Id.

  225



Judicial Enforcement Against the United States

225

the Court found no such indication in the text and history of the statute. Quoting Justice Joseph Story, the Court thought it “implausible to suppose that the First Congress wanted their fledgling Republic—​struggling to receive international recognition—​to be the first” nation to purport to be the “custos morum of the whole world.”33 For these reasons, the Kiobel Court applied the presumption against extraterritoriality to prevent an expansive application of the ATS not clearly authorized by Congress.34 In the most prominent Supreme Court cases involving the law of nations in U.S. history, the Supreme Court has enforced the rights of recognized foreign nations under customary international law to constrain or redress actions by the United States or its citizens. Such enforcement has served to uphold the political branches’ constitutional power to recognize foreign nations and to conduct foreign relations more generally. All of the cases discussed thus far have involved enforcement of the type of rights traditionally conferred by the law of state-​state relations—​rights that concerned how one nation and its citizens treated another nation and its citizens. The Supreme Court has yet to decide whether nations recognized by the United States may seek judicial enforcement of the distinct kinds of obligations provided by modern customary international law in recent decades.

II The constitutional rationale for judicial enforcement of the traditional rights of recognized foreign nations against the United States does not apply to judicial enforcement of distinct norms of modern customary international law against the United States. Traditional rights under the law of state-​state relations governed how one nation and its citizens treated another nation and its citizens. Recognition signified that one nation would respect the rights possessed by another nation. As discussed in Chapter 6, modern customary international law includes rules that depart from this paradigm. Instead of governing how one nation treats another, these rules

33. Id. at 1668 (quoting United States v. La Jeune Eugenie, 26 F. Cas. 832, 847 (C.C.D. Mass. 1822) (No. 15,551)). 34. The Supreme Court again reaffirmed the presumption against extraterritoriality in RJR Nabisco, Inc. v.  European Cmty., 136 S.  Ct. 2090, 2100 (2016) (“Absent clearly expressed congressional intent to the contrary, federal laws will be construed to have only domestic application.”).

226

226 E nforcement of Customary International L aw

govern how one nation treats its own citizens within its own territory. The law of state-​state relations traditionally did not impose such constraints, and indeed affirmatively precluded them as a violation of sovereignty. In other words, when two nations recognized one another, recognition historically signified respect for the sovereignty of each nation to govern its own citizens in its own territory, and thus affirmatively precluded any attempt by either nation to restrict the internal governance of the other. Notwithstanding the traditional meaning of recognition, some commentators have argued that courts today should understand recognition to create a judicially-​enforceable obligation to comply with all established rules of modern customary international law, even if they concern how a nation treats its own citizens within its own territory. For example, Professor Carlos Vázquez has argued that U.S.  recognition of a foreign nation should now be taken to signify that the United States will not only uphold the recognized nation’s traditional rights under the law of state-​ state relations, but also comply with all limitations on its own internal governance that modern customary international law may impose. He argues that recognition requires the United States to comply with modern customary international law because “[a]‌nation’s obligations under the international law of human rights are obligations toward other states, not just toward individuals.”35 On this view, recognition requires U.S. courts not only to uphold the traditional rights of recognized foreign nations, but also to enforce the constraints found in modern customary international law against the United States. There is general agreement that the United States has an international obligation to comply with customary international law and that other nations may hold the United States accountable for violations of such law. This is a basic tenet of international law and foreign relations. Professor Vázquez would take this international obligation a step further, however, by interpreting the Constitution to impose it as a self-​executing domestic legal obligation. He argues that once the United States recognizes a foreign nation, U.S.  courts may—​indeed, must—​enforce modern customary international law against the United States at least until the political branches opt out of such enforcement. This argument, however, would alter the meaning of recognition reflected in historical understandings

35. Carlos M. Vázquez, Customary International Law as U.S. Law: A Critique of the Revisionist and Intermediate Positions and a Defense of the Modern Position, 86 Notre Dame L. Rev. 1495, 1624 (2011).

  227



Judicial Enforcement Against the United States

227

and Supreme Court precedent, and give recognition an effect that contradicts several basic features of the constitutional structure designed to check and balance federal power.

A At the founding, the exercise of the recognition power would not have been understood to limit a nation’s power to govern its own citizens within its own territory. Recognition signified one nation’s respect for another nation’s sovereign rights, but indicated nothing about how the nation conferring recognition would govern its own citizens within its own territory. To the contrary, mutual recognition signified that each nation acknowledged the other’s right to internal governance under the law of nations, absent circumstances giving rise to civil war. The Supreme Court embraced this understanding in 2014 in Zivotofsky v. Kerry.36 According to the Court, at the founding, “prominent international scholars suggested that receiving an ambassador was tantamount to recognizing the sovereignty of the sending state.”37 “Recognition,” the Court explained, “is a ‘formal acknowledgement’ that a particular ‘entity possesses the qualifications for statehood’ or ‘that a particular regime is the effective government of a state,’ ”38 and “may also involve the determination of a state’s territorial bounds.”39 The Zivotofsky Court’s understanding of recognition supports the proposition that U.S.  courts must enforce the traditional sovereign rights of recognized foreign nations. It does not, however, support judicial enforcement of modern customary international law to constrain the internal governance of the United States. The Zivotofsky Court noted that “[l]‌egal consequences follow recognition,”40 and gave as examples the rights of recognized sovereigns to “sue in United States courts,”41 to “benefit from sovereign immunity when they are sued,”42 and to “receive deference

36. 135 S. Ct. 2076 (2015). 37. Id. at 2085. 38.  Id. at 2084 (quoting Restatement (Third) of the Foreign Relations Law of the United States § 203 cmt. a, p. 84 (Am. Law Inst. 1986)). 39. Id. 40. Id. 41. Id. 42. Id.

228

228 E nforcement of Customary International L aw

in domestic courts under the act of state doctrine.”43 All of these consequences of recognition concern how the United States and its courts must treat recognized foreign sovereigns, but none suggests that recognition requires U.S. courts to constrain how the United States treats its own citizens within its own territory. If U.S.  recognition of a foreign nation had the effect that Professor Vázquez would give it, then certain consequences would follow that contradict established constitutional doctrines. First, if recognition of another country by the United States meant that the United States thereby agreed to be held responsible in its own courts for violating the rights of its own citizens under modern customary international law, then it is difficult to see why recognition would not likewise mean that the United States had agreed to be held responsible for such violations in the courts of other nations. But the Supreme Court has explained that absent a domestically enforceable treaty obligation, no judgment by a foreign court or international tribunal enforcing an international obligation against the United States has binding effect in U.S. courts.44 Under Professor Vázquez’s theory, recognition would dispense with the need for a domestically enforceable treaty in this context. Similarly, under his theory, a foreign nation’s recognition of the United States presumably would mean that the recognizing nation had likewise agreed to be held accountable in both U.S. courts and its own courts for its own violations of modern customary international law. On this view, China’s recognition of the United States would mean that Chinese citizens could sue China, its government, or officials in U.S. courts for violations of modern customary international law in China. As explained in Chapters 4 and 8, however, the Supreme Court has never interpreted the Constitution to permit U.S.  courts to hold foreign nations accountable for violations of customary international law—​whether traditional or modern—​in the absence of express and unambiguous authorization from the political branches to do so. The Court has not done so because the Constitution gives the political branches the exclusive power to decide whether, when, and how to hold another nation accountable for its violations of international law. Treating recognition as a license to hold nations

43. Id. 44. Medellin v. Texas, 552 U.S. 491 (2008).

  229



Judicial Enforcement Against the United States

229

accountable would effectively transfer this constitutional power from the political branches to the courts.

B As discussed at greater length in Chapter 10, Professor Vázquez’s understanding of recognition would not only redefine the Court’s long-​held view of recognition, but also conflict with other parts of the Constitution. It is one thing to say that the constitutional meaning of recognition may evolve over time. It is another to say that such evolution may go so far as to override other constitutional provisions. The evolution of recognition that Professor Vázquez proposes goes too far because it would contradict other, more precise constitutional provisions. The Constitution grants the federal government enumerated powers to pursue various ends. It also prescribes precise procedures that the federal government must use to adopt “the supreme Law of the Land.” As discussed in Chapter  10, all of these procedures incorporate checks and balances by conditioning federal lawmaking on the participation and assent of multiple actors, including in every case either the Senate or the states. Article V generally requires two-​thirds of both the House of Representatives and the Senate to propose constitutional amendments, and three-​fourths of the states to ratify them.45 Article I requires the concurrence of the House, the Senate, and the President to enact federal laws, or two-​thirds of both Houses of Congress if the President withholds consent.46 Article II permits the President to make treaties with foreign nations, but only with the consent of two-​thirds of the senators present.47 The requirement that all three forms of supreme federal law be adopted by specific, finely wrought procedures makes such law more difficult to adopt. In particular, the requirement that multiple participants in the lawmaking process must agree before a proposal becomes law creates the effect of a supermajority requirement—​an effect that is compounded by the additional requirement that individual actors (such as the House and the Senate) sometimes must act by supermajority as well. These requirements create multiple veto gates, under which any participant can prevent

45. U.S. Const. art. V. 46. Id. art. I, § 7, cl. 2. 47. Id. art. II, § 2, cl. 2.

230

230 E nforcement of Customary International L aw

the adoption of supreme federal law by withholding assent.48 As explained in more detail in Chapter 10, these procedures impose important “procedural safeguards of federalism” by making it harder to adopt all forms of supreme federal law capable of preempting state law. In addition, as also explained in more detail in Chapter 10, by requiring the approval of the Senate or the states, all three federal lawmaking procedures give smaller states disproportionate authority in the lawmaking process. Permitting the President alone—​through recognition—​to transform modern customary international law into enforceable domestic law would circumvent these procedural requirements. The Supreme Court has interpreted the Constitution to give the President exclusive power to recognize foreign nations on behalf of the United States. As the Court concluded in Zivotofsky, “the power to recognize or decline to recognize a foreign state and its territorial bounds resides in the President alone.”49 The Court’s conclusion is consistent with the Constitution’s lawmaking procedures so long as recognition is given the ordinary meaning and effect that the Zivotofsky Court described—​namely, formal acknowledgment of the legitimacy of a foreign government or the independent sovereignty of a foreign nation. When courts uphold the rights and immunities of foreign nations vis-​à-​vis the United States as incidents of recognition, such judicial action is consistent with the Supremacy Clause and associated lawmaking procedures because respect for such rights and immunities is part of the traditional meaning of recognition. On the other hand, if the meaning of U.S. recognition of a foreign nation were transformed to alter the legal rights and duties subsisting between the United States and its own citizens, then the President would have unilateral power to circumvent the lawmaking procedures that the Constitution requires for such alterations. Given the specificity of and purposeful variation among all three federal lawmaking procedures—​and the degree of compromise required to adopt them at the Constitutional Convention—​it would be incongruous to allow the President to bypass these procedures unilaterally.50

48. All participants in federal lawmaking have an absolute veto except the President when participating in the adoption of federal statutes. There, the President has only a qualified veto because the House and Senate may enact laws by supermajority over his or her veto. 49. 135 S. Ct. 2076, 2094 (2015). 50. See Bradford R. Clark, Constitutional Compromise and the Supremacy Clause, 83 Notre Dame L. Rev. 1421 (2008).

  231



Judicial Enforcement Against the United States

231

Any such expansive power in the President would go well beyond the scope of the recognition power known to the founders and described in Zivotofsky. “[T]‌he President’s recognition determination,” the Court explained, “is just one part of a political process that may require Congress to make laws.”51 Although the Court held that the President alone possesses the formal recognition power, it emphasized that “Congress’ powers, and its central role in making laws, give it substantial authority regarding many of the policy determinations that precede and follow the act of recognition itself.”52 Thus, “many decisions affecting foreign relations—​ including decisions that may determine the course of our relations with recognized countries—​require congressional action.”53 For these reasons, even if U.S. recognition of a foreign nation created an international obligation on the part of the United States to change federal law to comply with modern customary international law, Congress might well—​under the reasoning of Zivotofsky—​have to enact new laws before the international obligation could have domestic effect in U.S. courts.54

III To this point, we have considered the extent to which the Constitution requires courts to enforce customary international law against the United States in the absence of a decision by the political branches to depart from such law. The Supreme Court has long enforced the traditional rights of recognized foreign nations against the United States under the law of state-​state relations. The Court has not extended such enforcement to rules of modern customary international law that constrain how the United States treats its own citizens within its own territory. In either case, however, the Court’s decisions assume that the political branches of the federal government have constitutional authority to depart from customary international law and abrogate judicial enforcement of such law as

51. Zivotofsky, 135 S. Ct. at 2087. 52. Id. 53. Id. 54. Cf. id. (“Formal recognition may seem a hollow act if it is not accompanied by the dispatch of an ambassador, the easing of trade restrictions, and the conclusion of treaties. And those decisions require action by the Senate or the whole Congress.”).

232

232 E nforcement of Customary International L aw

they deem necessary.55 Because U.S. courts traditionally apply customary international law as a means of upholding the Constitution’s allocation of powers to the political branches, the political branches necessarily retain the authority to decide whether, when, and how to abrogate such law in the exercise of those powers. In other words, customary international law does not bind Congress and the President as a matter of domestic law when they choose to depart from such law in the exercise of their constitutional powers. Although the Constitution clearly allocates war and foreign relations powers to the political branches as opposed to the courts, the Constitution’s precise allocation of powers between Congress and the President is difficult to discern and indeed has been understood to have shifted over time. In the early years of the republic, the Supreme Court suggested that Congress had primacy in making important foreign policy decisions that could determine war and peace. Accordingly, the Court sometimes required the executive branch—​like U.S.  courts—​to adhere to the law of state-​state relations unless Congress had clearly authorized its violation. Over time, the Court recognized a larger constitutional role for the President in war and foreign relations, and accordingly upheld a number of unilateral executive actions affecting the traditional sovereign rights of foreign nations. We do not attempt to determine the precise allocation of war and foreign relations powers between Congress and the President in this regard. Rather, we set forth this background merely to show that the judiciary has restrained executive action in violation of the law of nations only when it has regarded such action as usurping the constitutional power of a coordinate branch. This point is important because scholars have long debated how, if at all, customary international law constrains the authority of the federal political branches, especially the executive branch. In early cases, when courts constrained executive action that violated the law of nations, they did so on the ground that it was the prerogative of Congress, not the executive, to determine whether the United States would violate the rights of a

55. See Anthony J. Bellia Jr. & Bradford R. Clark, The Political Branches and the Law of Nations [hereinafter Bellia & Clark, Political Branches and Law of Nations], 85 Notre Dame L. Rev. 1795 (2010). By “depart,” we mean either to violate customary international law without judicial recrimination or to “opt out” of a customary international law rule in a way that international law recognizes as legitimate. See also Curtis A. Bradley & G. Mitu Gulati, Withdrawing from International Custom, 120 Yale L.J. 202 (2010) (analyzing the authority of nations to withdraw from customary international law rules).

  233



Judicial Enforcement Against the United States

233

recognized foreign nation under the law of state-​state relations. In other words, it was the Constitution’s allocation of powers to Congress, not the law of state-​state relations itself, that constrained executive action in these cases. Most scholars believe that U.S. courts must apply valid acts of Congress even if they violate the law of nations or customary international law. Louis Henkin was probably the most prominent proponent of this position. “In principle,” Henkin explained, “every state has the power—​I do not say the right—​to violate international law and obligation and to suffer the consequences.”56 In accordance with this principle, he believed that the Constitution recognizes a “national prerogative to violate international law.”57 “If Congress enacts legislation that is inconsistent with, and causes the United States to violate, an established principle of customary law, the Executive and the courts are obliged to give effect to the act of Congress.”58 In other words, “Congress, in legislating under its constitutional powers, can enact law inconsistent with an international agreement or other international obligation of the United States, thereby causing the United States to be in violation of that agreement or obligation.”59 There is somewhat less consensus among scholars concerning the extent to which the President has unilateral power to violate customary international law. Some scholars have taken the position that the President may violate customary international law free from judicial interference either because such law does not have the status of federal law,60 or because, as a functional matter, such law is an ineffective constraint on executive action.61 Other scholars have argued that courts may enforce customary international law against the President because such

56. Louis Henkin, The President and International Law, 80 Am. J. Int’l L. 930, 931 (1986). 57. Id. at 933. 58. Id. at 933–​34. 59. Louis Henkin, International Law as Law in the United States, 82 Mich. L. Rev. 1555, 1568 (1984). Notwithstanding Henkin’s views, a few scholars have suggested that U.S.  courts should not apply federal statutes that violate customary international law. See Jules Lobel, The Limits of Constitutional Power: Conflicts Between Foreign Policy and International Law, 71 Va. L.  Rev. 1071, 1130–​31 (1985); Jordan J. Paust, Customary International Law and Human Rights Treaties Are Law of the United States, 20 Mich. J. Int’l L. 301, 316 (1999). 60.  See Curtis A. Bradley & Jack L. Goldsmith, Customary International Law as Federal Common Law: A Critique of the Modern Position, 110 Harv. L. Rev. 815, 844–​46 (1997). 61. See John O. McGinnis & Ilya Somin, Should International Law Be Part of Our Law?, 59 Stan. L. Rev. 1175, 1226–​30 (2007).

234

234 E nforcement of Customary International L aw

law qualifies as a form of federal law that the President must follow under the Article II executive obligation to “take care that the laws be faithfully executed.”62 These scholars acknowledge, however, that the President may violate customary international law when enforcing an act of Congress that itself departs from such law.63 Professor Henkin also argued that the President may disregard customary international law if the President is “acting within his constitutional authority”64 to (1) make law in the United States,65 or (2) modify or terminate a principle of international law.66 “The question,” as Henkin put it, is whether the President “has constitutional authority to do the act that … superseded the customary principle.”67 Scholars thus generally agree that Congress and the President (when executing an act of Congress) have constitutional power to depart from customary international law and that U.S. courts must defer to their decisions in this regard. The more contested question is whether the President possesses independent power to violate customary international law without the assent of Congress. Early Supreme Court decisions suggested that the President lacked such power, but later decisions appear to have embraced greater presidential authority. Whatever the precise allocation of war and foreign relations power between Congress and the President, the Court’s decisions leave no doubt that the Constitution empowers the political branches collectively to abrogate the law of nations or customary international law.

62. U.S. Const. art. II, § 3, cl. 4; see Michael J. Glennon, Can the President Do No Wrong?, 80 Am. J.  Int’l L. 923, 923 (1986); Michael J. Glennon, Raising The Paquete Habana:  Is Violation of Customary International Law by the Executive Unconstitutional?, 80 Nw. U. L. Rev. 321, 325 (1985); Lobel, supra note 59, at 1119; Jordan J. Paust, Is the President Bound by the Supreme Law of the Land?—​Foreign Affairs and National Security Reexamined, 9 Hastings Const. L.Q. 719, 727 (1982). 63. See Glennon, Raising The Paquete Habana, supra note 62, at 325; Henkin, supra note 56, at 935; Lobel, supra note 59, at 1119. 64. Henkin, supra note 56, at 936. 65. Id. at 935. He explains that “the President can supersede a principle of international law or a treaty by law made under his own authority, in those special circumstances when the President has constitutional authority to make law in the United States.” Id. 66. Id. at 936. See also Jonathan I. Charney, The Power of the Executive Branch of the United States Government to Violate Customary International Law, 80 Am. J. Int’l L. 913, 919 (1985) (arguing that the executive branch may violate the law of nations, subject to no judicially enforceable limitations, when it is “participating in the legitimate process of developing customary international law”). 67. Henkin, supra note 56, at 935.

  235



Judicial Enforcement Against the United States

235

As discussed in Chapter 4, the Supreme Court’s early decisions enforced the rights of recognized nations under the law of state-​state relations as a means of upholding the Constitution’s allocation of powers to the political branches over war and foreign relations. These decisions necessarily assumed that the political branches could depart from the law of nations in the exercise of their foreign relations powers, and that courts had to follow unambiguous political branch directives of this kind.68 Courts erred on the side of following traditional principles of the law of nations in order to respect recognition and preserve the political branches’ ability to decide whether and how the United States should depart from such law. If the political branches unambiguously decided to override the law of nations in the exercise of their constitutional powers, then courts followed their lead under the same constitutional allocation of powers. This principle underlies the Charming Betsy canon. In the case that generated the canon and for which it is named, the Supreme Court declared that federal statutes “ought never to be construed to violate the law of nations if any other possible construction remains.”69 Importantly, the Court’s opinion presupposed that Congress could violate the law of nations if it clearly expressed its intent to do so. A clear statement requirement protected the Constitution’s allocation of power by ensuring that Congress—​and not the courts—​made the momentous decision to violate another nation’s rights. As explained, the case involved the Non-​Intercourse Act of 1800, which prohibited commercial intercourse between residents of the United States and residents of any French territory.70 The Act, however, did not specify its impact on the rights of neutral nations—​such as Denmark—​conducting neutral commerce in the region. The question before the Court was whether the Act authorized seizure of a Danish vessel previously owned by an American. The Court construed the Act narrowly and invalidated the seizure in order to avoid violating the neutral rights of Denmark under the law of state-​state relations. The Court’s decision did not merely uphold Denmark’s rights, but ensured that the judiciary would not usurp the exclusive powers of the political branches to recognize Denmark and to make any decision that would interfere with its neutral rights. The neutral rights at issue in the

68. See Bellia & Clark, Political Branches and Law of Nations, supra note 55, at 1806–​21. 69. Murray v. The Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804). 70. Non-​Intercourse Act, ch. 10, § 1, 2 Stat. 7, 8 (1800) (expired 1801).

236

236 E nforcement of Customary International L aw

Charming Betsy case were also “perfect rights” under the law of state-​state relations, and thus gave the aggrieved nation just cause to retaliate for a violation of such rights, including by waging war. Thus, the Charming Betsy canon served not only to uphold the law of state-​state relations, but also to prevent courts from interfering with the Constitution’s allocation of war and foreign relations powers to the political branches. To be sure, Congress retained the power to violate the law of nations, but the Charming Betsy canon ensured that courts would not generate such violations without clear evidence that Congress intended them. On the rare occasions that Congress expressly and unequivocally chose to depart from the law of nations, the Supreme Court followed its lead. In The Schooner Adeline,71 for example, the Court applied an act of Congress specifying the mode of valuing a ship’s cargo in order to ascertain the amount that recaptors could recover as salvage. The recaptors argued that the Court should assess value according to the law of nations, which suggested a more generous recovery than the statute. The statute, they argued, was “an unreasonable departure from an universal usage founded on justice and common utility.”72 The Court rejected this argument on the ground that the statute clearly prescribed a different rule: “The statute is expressed in clear and unambiguous terms… . We cannot interpose a limitation or qualification upon the terms which the legislature has not itself imposed … .”73 Accordingly, the Court applied the statute as written.74 Although the Supreme Court recognized Congress’s power to violate the law of nations, its early cases suggested that the executive branch—​ like the judicial branch—​was bound to follow the law of nations in order to preserve Congress’s exclusive power to decide whether and when to initiate or escalate hostilities with foreign nations. For example, in 1804 in Little v. Barreme,75 discussed in the last chapter, the Supreme Court invalidated a presidential order expanding a statutory restriction on maritime commerce during the Quasi-​War with France. In 1799, Congress passed an act prohibiting ships owned, hired, or employed by U.S. residents from 71. 13 U.S. (9 Cranch) 244 (1815). 72. Id. at 279–​80 (argument of counsel). 73. Id. at 287 (opinion of Story, J.). 74. For an earlier example, see Bas v. Tingy, 4 U.S. (4 Dall.) 37 (1800) (upholding a federal statute enacted during the “Quasi-​War” with France that departed from the law of nations in regulating salvage rights in ships or goods retaken from the enemy). 75. 6 U.S. (2 Cranch) 170 (1804).

  237



Judicial Enforcement Against the United States

237

proceeding “to any port or place within the territory of the French Republic, or the dependencies thereof.”76 The act declared that ships violating this prohibition would be liable to be seized and forfeited in a condemnation proceeding in U.S. courts.77 In addition, the act authorized the President “to give instructions to the commanders of the public armed ships of the United States” to examine ships of the United States on the high seas and to seize any ships determined to be “bound or sailing to any port or place within the territory of the French Republic, or her dependencies.”78 The President thereafter instructed the commanders of the armed vessels of the United States to prevent all intercourse “between the ports of the United States, and those of France and her dependencies.”79 He also urged the commanders not to let American vessels “bound to or from French ports” escape.80 In accordance with the President’s command, Captain George Little seized a Danish ship sailing from a French port, brought the ship to Boston, and sought to have the ship and its cargo condemned for violating the act. The district court restored the ship and cargo as neutral property, but declined to award damages against Captain Little for his capture and detention of the ship. On appeal, the circuit court held that damages were appropriate because the capture was not authorized by statute. The case presented the following question to the Supreme Court: “Is the officer who obeys [the President’s orders] liable for damages sustained by this misconstruction of the act, or will his orders excuse him?”81 The Court held that Little was liable for damages, and that the President’s orders “cannot … legalize an act which without those instructions would have been a plain trespass.”82 The Court’s brief opinion viewed Congress as possessing sole and exclusive power to determine the scope of hostilities between the United States and other nations. Although the Court acknowledged that Congress’s narrow statutory prescription “would be very often evaded,” and that the President’s broader construction was “much better calculated to give it effect,” the Court found that it was for Congress

76. Id. at 170 (emphasis added and omitted). 77. Id. 78. Id. at 171 (emphasis omitted). 79. Id. (emphasis added and omitted). 80. Id. at 178 (emphasis omitted). 81. Id. 82. Id. at 179.

238

238 E nforcement of Customary International L aw

rather than the President to decide how best to respond to ongoing hostilities with France. In other words, the President possessed no independent constitutional power to generate or escalate hostilities by augmenting—​or even making more effective—​the narrow measures adopted by Congress. The Supreme Court took a similarly constrained view of executive power in Brown v.  United States,83 discussed in Chapter  4, in light of Congress’s constitutional authority over war and peace. Congress declared war against Great Britain during the War of 1812, but did not explicitly authorize seizure of enemy property found within the United States during the war. The United States Attorney for the District of Massachusetts filed a libel in federal court to condemn British-​owned timber found within the United States after hostilities commenced.84 Although the law of nations gave nations the right to make such confiscations during war, the exercise of this right would have escalated hostilities between the warring parties and encouraged Britain to retaliate by confiscating similarly situated American property. The Court dismissed the case on the grounds that Congress alone possessed the constitutional authority to authorize confiscation of enemy property during the war, and that Congress had not clearly done so. Chief Justice John Marshall began by acknowledging that the United States unquestionably had power to condemn enemy property under the law of nations: “That war gives to the sovereign full right to take the persons and confiscate the property of the enemy wherever found, is conceded.”85 He denied, however, that the international rule subjecting enemy property to confiscation is “a rule which acts directly upon the thing itself by its own force, and not through the sovereign power.”86 Because the law of nations principle “is a guide which the sovereign follows or abandons at his will,”87 the question before the Court was whether the United States had exercised its option to confiscate British property during the war.

83. 12 U.S. (8 Cranch) 110 (1814). 84. Id. at 121–​23. The U.S. Attorney apparently acted without the knowledge or consent of the President. 85. Id. at 122. 86. Id. at 128; see also id. at 123 (stating that war alone “is not an absolute confiscation of this property, but simply confers the right of confiscation” upon the sovereign). 87. Id. at 128; see also id. (“The rule, like other precepts of morality, of humanity, and even of wisdom, is addressed to the judgment of the sovereign; and although it cannot be disregarded by him without obloquy, yet it may be disregarded.”).

  239



Judicial Enforcement Against the United States

239

To answer this question, the Brown Court had to decide which branch of the federal government exercised the sovereign power of the United States for this purpose. Chief Justice Marshall explained unequivocally that the Constitution gave Congress the exclusive power to decide this question: “[F]‌rom the structure of our government, proceedings to condemn the property of an enemy found within our territory at the declaration of war, can be sustained only upon the principle that they are instituted in execution of some existing law … .”88 “Like all other questions of policy,” the question whether to confiscate enemy property “is proper for the consideration of a department which can modify it at will; not for the consideration of a department which can pursue only the law as it is written. It is proper for the consideration of the legislature, not of the executive or judiciary.”89 Thus, “until that will shall be expressed, no power of condemnation can exist in the Court.”90 Turning to whether Congress had authorized confiscation of British property, the Court found no such authorization. Specifically, the Court found that the mere declaration of war did not “authorize proceedings against the persons or property of the enemy found, at the time, within the territory.”91 Nor had Congress enacted a separate statute for this purpose. Because “the power of confiscating enemy property is in the legislature, and … the legislature has not yet declared its will to confiscate property which was within our territory at the declaration of war,” the Court determined that the U.S. Attorney lacked authority to confiscate enemy property, and that U.S. courts could not issue a sentence of condemnation.92 In short, the Brown Court understood confiscation of enemy property to fall within Congress’s exclusive powers, and thus the executive could not confiscate enemy property in the absence of clear authorization from Congress.

88. Id. at 123. 89. Id. at 129. 90. Id. at 123. 91. Id. at 126. The Court also noted that the U.S. Attorney had not seized the property “under any instructions from the President of the United States.” Id. at 121–​22. It is unclear from the opinion whether such instructions would have altered the Court’s conclusions. 92. Id. at 129. Although Justice Story dissented, he did not challenge the Court’s premise that Congress must authorize confiscation of enemy property. Rather, he concluded that Congress’s declaration of war should be construed to include such an authorization absent language specifically limiting confiscations. Id. at 145 (Story, J., dissenting).

240

240 E nforcement of Customary International L aw

Congress’s primacy regarding the initiation and conduct of war persisted at least through the Civil War.93 By the beginning of the twentieth century, however, the Court’s understanding of the relative powers of Congress and the President over war had begun to change. In The Paquete Habana,94 the Court suggested that both Congress and the President had authority to abrogate a nation’s rights under the law of nations, and thus precipitate or escalate a war.95 As discussed in earlier chapters, the case arose during the Spanish-​American War when U.S. armed ships captured Spanish fishing vessels off the coast of Cuba and claimed them as prizes of war. The law of nations, the Court explained, recognized an exception for coastal fishing vessels from the ordinary rules of capture during wartime.96 Because neither Congress nor the President had specifically authorized the seizures, the Court applied the law of nations to exempt such vessels from capture. At the same time, the Court indicated that the exemption it recognized could be overridden by a “controlling executive or legislative act.”97 Scholars have long puzzled over the Court’s suggestion that the President alone could override international law in prosecuting a war. Brown suggested that decisions of this kind belonged exclusively to Congress. On this occasion, however, the Court suggested some measure of overlapping executive and congressional power to depart from the law of nations. It is worth noting that this shift occurred alongside a contemporaneous shift in the relative war powers of Congress and the President during the twentieth century. The precise allocation of powers between Congress and the President in making and conducting war is a complex and controversial topic, beyond the scope of this book. For present purposes, it is worth

93. See Prize Cases, 67 U.S. (2 Black) 635, 668 (1862) (stating that the President “has no power to initiate or declare a war either against a foreign nation or a domestic State,” and that “Congress alone has the power to declare a national or foreign war”). In the Prize Cases, the Court found the President’s blockade of southern states to be consistent with the law of nations, and also noted that “if the President had in any manner assumed powers which it was necessary should have the authority or sanction of Congress, … [Congress’s] ratification has operated to perfectly cure the defect.” Id. at 671. 94. 175 U.S. 677 (1900). 95. Cf. id. at 711–​12 (noting that “no act of Congress or order of the President” had expressly abrogated the law of nations and discussing relevant presidential proclamations) (emphasis added). 96. See id. at 701–​06. 97. Id. at 700.

  241



Judicial Enforcement Against the United States

241

simply observing that, in the twentieth century, the President has asserted greater authority to initiate hostilities without congressional authorization, and the Supreme Court has acknowledged that Congress and the President have a degree of shared constitutional responsibility to conduct foreign relations and formulate national policy on questions affecting war and peace.98 As one commentator put it, “If practice during the nineteenth century was largely faithful to the original understanding of the war powers, the Constitution came under strain at the turn of the century.”99 After ordering various small-​scale military operations in the nineteenth century, Presidents in the twentieth century asserted greater power to order hostile military actions without congressional authorization.100 Twentieth century decisions recognizing broader executive wartime powers are few, but prominent. One such case is the Court’s 1936 decision in United States v. Curtiss-​Wright Export Corp.101 Curtiss-​Wright involved a challenge to a congressional delegation authorizing the President to prohibit the sale of arms to certain countries engaged in conflict. The Court assumed (without deciding) that the delegation would have been unconstitutional in the domestic context, but upheld the statute on the ground that the President possessed broad independent powers in the field of foreign relations. In particular, the Court noted “the very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations.”102 The Court suggested that, to carry out his constitutional functions, the President must possess “a degree of discretion and freedom from statutory restriction which would not be admissible, were domestic affairs alone involved.”103 Although 98. See Henry P. Monaghan, The Protective Power of the Presidency, 93 Colum. L. Rev. 1, 50–​56 (1993) (describing early American accounts of presidential power in foreign affairs and the Supreme Court’s recognition in the twentieth century of “some independent presidential law-​making authority in foreign affairs”). 99.  Jane E. Stromseth, Understanding Constitutional War Powers Today:  Why Methodology Matters, 106 Yale L.J. 845, 868 (1996) (reviewing Louis Fisher, Presidential War Power (1995)). 100. Id. at 868; see also David J. Barron & Martin S. Lederman, The Commander in Chief at the Lowest Ebb—​A Constitutional History, 121 Harv. L. Rev. 941, 946 (2008) (examining “how the political branches have actually considered and treated the legislature’s power to regulate the President’s ‘command of the forces’ and the ‘conduct of campaigns,’ from 1789 to the present day”). 101. 299 U.S. 304 (1936). 102. Id. at 320. 103. Id.

242

242 E nforcement of Customary International L aw

Curtiss-​Wright has been widely criticized in academic quarters and cautiously cited by courts,104 it marked a significant shift in the Court’s thinking by recognizing that the management of foreign relations—​and the corresponding risk of foreign conflict—​is a shared constitutional responsibility of Congress and the President.105 In Youngstown Sheet & Tube Co. v. Sawyer,106 Justice Robert H. Jackson’s famous concurring opinion described “[m]‌uch of the Court’s opinion” in Curtiss-​Wright as “dictum,” explaining that Curtiss-​Wright involved only “the question of [the President’s] right to act under and in accord with an Act of Congress.”107 Although Justice Jackson pulled back from some of Curtiss-​Wright’s broad language, Jackson himself recognized broader executive authority in foreign relations than the Marshall Court contemplated. First, Jackson described a “zone of twilight” in which the executive might exercise “independent presidential responsibility” in foreign affairs.108 Although Justice Jackson refrained from delineating precisely what those independent powers might be,109 he nonetheless acknowledged their existence. Moreover, Justice Jackson explained that “[w]hen the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum.”110 Since Youngstown, the Supreme Court has found broad implied congressional authorizations of presidential war and foreign relations 104.  See, e.g., Charles A. Lofgren, United States v.  Curtiss-​Wright Export Corporation:  An Historical Reassessment, 83 Yale L. J. 1 (1973). 105. See, e.g., H. Jefferson Powell, The President’s Authority over Foreign Affairs: An Executive Branch Perspective, 67 Geo. Wash. L.  Rev. 527 (1999) (assessing the overlapping powers of Congress and the President over foreign affairs); Saikrishna B. Prakash & Michael D. Ramsey, The Executive Power over Foreign Affairs, 111 Yale L.J. 231 (2001) (arguing that the constitutional text allocates foreign affairs powers between Congress and the President). Some commentators maintain that the President also possesses certain implied powers. See, e.g., Jack Goldsmith & John F. Manning, The President’s Completion Power, 115 Yale L.J. 2280, 2282 (2006) (arguing that the President has “authority to prescribe incidental details needed to carry into execution a legislative scheme”); Monaghan, supra note 98, at 11 (maintaining that the President possesses a narrow, inherent power “to protect and defend the personnel, property, and instrumentalities of the United States from harm”). 106. 343 U.S. 579 (1952). 107. Id. at 636 n.2 (Jackson, J., concurring) (emphasis omitted). 108. Id. at 637. 109. Id.; see Dames & Moore v. Regan, 453 U.S. 654 (1981) (resolving question of whether the President had authority to settle foreign claims on the basis of implied congressional authorization rather than independent presidential power). 110. Youngstown, 343 U.S. at 635 (emphasis added).

  243



Judicial Enforcement Against the United States

243

authority.111 In Dames & Moore v. Regan,112 for instance, the Court asserted that “the enactment of legislation closely related to the question of the President’s authority in a particular case which evinces legislative intent to accord the President broad discretion may be considered to ‘invite’ ‘measures on independent presidential responsibility.’ ”113 Such reasoning undoubtedly allows broader executive wartime authority than the Marshall Court recognized in Brown, which limited executive and judicial authority to escalate war through condemnation “until [Congress’s] will shall be expressed.”114 As previously noted, the Court has also held that the President has exclusive power to recognize foreign nations and governments.115 It is beyond the scope of this book to ascertain with precision the respective powers of Congress and the President over war and foreign relations. The important point for present purposes is that the Supreme Court has recognized that the political branches of the federal government—​singly or in some combination—​ have full authority to depart from the law of nations and customary international law. To be sure, as this chapter describes, the Court has applied such law in the absence of contrary instructions from the political branches as a means of upholding the Constitution’s allocation of war and foreign relations powers to Congress and the President. The Court also has constrained executive action that violated the law of state-​state relations when it determined that Congress had exclusive authority to decide whether the United States should undertake the action in question. In all of its cases, however, the Court has understood Congress and the President, individually or collectively, to have constitutional responsibility for determining whether, when, and how the United States should depart from customary international law.

111. See, e.g., Patricia L. Bellia, Executive Power in Youngstown’s Shadows, 19 Const. Comment. 87 (2002). 112. 453 U.S. 654 (1981). 113. Id. at 678 (quoting Youngstown, 343 U.S. at 637 (Jackson, J., concurring)). For a critical evaluation of the Supreme Court’s approach to sole executive agreements, see Bradford R. Clark, Domesticating Sole Executive Agreements, 93 Va. L. Rev. 1573 (2007). 114. Brown v. United States, 12 U.S. (8 Cranch) 110, 123 (1814). 115. See Zivotofsky v. Kerry, 135 S. Ct. 2076 (2015).

244

  245

10

Judicial Enforcement of Customary International Law Against U.S. States

This chapter addresses when, if ever, U.S. courts should apply customary international law to constrain or redress actions by U.S. states or their officials. Judicial application of customary international law against U.S.  states involves many of the same constitutional considerations as judicial application of such law against the United States. But it also raises additional constitutional considerations as well. In analyzing these questions, it is again useful to distinguish the traditional rights of nations under the law of state-​state relations from modern customary international law because the two forms of international law interact differently with the Constitution’s text, history, and structure. Long-​standing Supreme Court precedent supports the proposition that courts must uphold the traditional rights of foreign sovereigns under the law of state-​state relations against the conflicting demands of state law. This requirement, as explained in preceding chapters, stems from the Constitution’s exclusive allocation of power to the federal political branches to recognize foreign nations and to pursue satisfaction through diplomacy, reprisals, captures, and even war. Accordingly, the Constitution’s allocation of powers preempts state action that otherwise would override the rights of a recognized foreign sovereign or hold such a sovereign accountable for violating international law. Such state action would conflict with the federal political branches’ decision to recognize foreign nations and with their exclusive power to determine whether, when, and how to hold The Law of Nations and the United States Constitution. Anthony J. Bellia Jr. and Bradford R. Clark. © Oxford University Press 2017. Published 2017 by Oxford University Press.

246

246 E nforcement of Customary International L aw

them accountable for their actions. Insofar as the Constitution requires courts to uphold the sovereign rights of recognized foreign nations, the Supremacy Clause preempts state action in conflict with such rights. The constitutional rationale that obligates U.S.  courts to uphold the traditional rights of foreign sovereigns under the law of state-​state relations does not apply to judicial use of modern customary international law to constrain the conduct of U.S. states toward their own citizens within their own territory. As explained in Chapter  9, when the states ratified the Constitution, recognition signified that the United States (including its constituent states) would respect the rights of foreign nations under the law of state-​state relations. Recognition did not signify, however, that the states ceded their ordinary police power to regulate their own citizens within their own territory. To the contrary, when the states ratified the Constitution, the law of nations did not address how nations treated their own citizens in their own territory, and indeed it prohibited nations from interfering with the internal governance of other nations (absent a civil war). In addition, the Constitution was designed to safeguard the governance prerogatives of U.S. states in specific ways—​including by conditioning preemption of state law on the adoption of supreme federal law by designated federal actors using prescribed lawmaking procedures. When the political branches employ these procedures to incorporate rules of customary international law into U.S. law—​as they sometimes do—​judicial enforcement of those rules against states raises no constitutional difficulties. But when the political branches have not adopted such rules, the Constitution makes no provision for their enforcement in U.S.  courts—​and could not have made such provision because the kind of obligation modern customary international law imposes did not exist at the founding. Any suggestion that recognition by the United States signifies that the United States—​ including its constituent states—​will apply modern customary international law as binding domestic law to govern relations between states and their citizens would face the same constitutional problems described in the last chapter. In particular, such a suggestion would require redefining the well-​established meaning of recognition, would give the President authority to circumvent the Constitution’s checks and balances on federal lawmaking, and would fundamentally alter the federal-​state balance. For these reasons, it is not surprising that to date federal courts have been unwilling to preempt state law on the basis of uncodified rules of modern customary international law.

  247



Judicial Enforcement Against U.S. States

247

I Some background regarding federalism and the constitutional structure is necessary to evaluate the extent to which courts may displace state law on the basis of customary international law—​whether the traditional law of state-​state relations or modern customary international law. It is worth noting at the outset that some scholars today make the sweeping claim that the Constitution does not provide—​and should not be understood to provide—​any meaningful protection of state governance prerogatives. Notwithstanding this contention, the Supreme Court has continued to describe the Constitution’s federal structure as one of “dual sovereignty.” The Court has understood the Constitution to provide judicially enforceable limits on the powers of the federal government relative to those of the states. To be sure, judges and scholars continue to debate the contours of such limitations, including the degree to which courts should defer to the political branches in enforcing them. Nonetheless, the Court’s working assumption, rooted in the Constitution’s text and structure, is that the federal government has only limited and enumerated regulatory powers and that it may exercise them only through carefully prescribed lawmaking procedures.

A As discussed, when the American Colonies sought their independence from Great Britain, they declared themselves to be free and independent states.1 Great Britain recognized them as having this status in the 1783 Treaty of Peace, and recognition by additional European nations followed. In the Articles of Confederation, the states “enter[ed] into a firm league of friendship with each other, for their common defence, the security of their Liberties, and their mutual and general welfare,”2 but each state otherwise “retain[ed] its sovereignty, freedom, and independence.”3 Thus, under the Articles, the states understood themselves to possess traditional sovereignty and police power within their borders.

1. The Declaration of Independence para. 32 (U.S. 1776). 2. Articles of Confederation of 1781 art. III. 3. Id. art. II.

248

248 E nforcement of Customary International L aw

In adopting the Constitution, the states ceded some but not all of their traditional sovereignty in two ways. First, they granted the federal government limited and enumerated powers over certain matters of concern to the United States as a whole, particularly matters involving war and foreign relations. Second, they recognized the Constitution, laws, and treaties of the United States as the supreme law of land notwithstanding contrary state law. Both of these concessions, however, implied corresponding limits on federal power. First, by enumerating the powers assigned to the federal government, the Constitution reserved all others to the states. As James Madison explained in urging the states to ratify the Constitution: “The powers delegated by the proposed Constitution to the Federal Government, are few and defined. Those which are to remain in the State Governments are numerous and indefinite.”4 The powers assigned to the federal government were primarily concerned with external relations, whereas the powers retained by the states concerned their internal governance. Again, as Madison explained, the powers delegated to the federal government “will be exercised principally on external objects, [such] as war, peace, negotiation, and foreign commerce.”5 By contrast, the “powers reserved to the several States will extend to all the objects, which, in the ordinary course of affairs, concern the lives, liberties and properties of the people, and the internal order, improvement, and prosperity of the State.”6 This division of authority was consistent with the law of nations at the time because such law concerned “external” rather than “internal” matters in the sense that Madison was using these terms. Second, by conferring supremacy only on the Constitution, laws, and treaties of the United States, the Constitution left states free to govern themselves in the absence of such law. The Constitution also prescribed precise and distinct procedures for the adoption of each form of supreme federal law, as discussed in the last chapter. These procedures were designed to protect the governance prerogatives of the states in two ways—​by assigning federal lawmaking exclusively to actors subject to the so-​called “political safeguards of federalism,” and by making supreme federal law relatively difficult to adopt through the imposition of multiple veto gates. Professor Herbert Wechsler used the phrase “the political safeguards of federalism” 4. The Federalist No. 45, at 313 (James Madison) (Jacob E. Cooke ed., 1961). 5. Id. (emphasis added). 6. Id. (emphasis added).

  249



Judicial Enforcement Against U.S. States

249

to refer to the role of the states “in the composition and selection of the central government.”7 As he explained, the Constitution gave the states an important role in selecting the President, the House of Representatives, and the Senate.8 By assigning federal lawmaking exclusively to these three actors (or the states themselves), the founders designed the Constitution to ensure that federal lawmaking would be responsive to state interests and autonomy. As Madison described the original constitutional design, “each of the principal branches of the federal Government will owe its existence more or less to the favor of the State Governments, and must consequently feel a dependence, which is much more likely to beget a disposition too obsequious than too overbearing towards them.”9 Whether or not this remains true today, it was a recognized feature of the original constitutional design that went hand in hand with the supremacy of federal law and the exclusivity of federal lawmaking procedures. The Constitution also was designed to safeguard state interests and autonomy simply by requiring the supreme law of the land to be adopted by multiple actors, including in every case the Senate (or the states).10 Pursuant to Article VII, the original “Constitution” was adopted by the states11 and, pursuant to Article V, all subsequent amendments to the Constitution have been proposed by two-​thirds of the House and Senate and ratified by three-​fourths of the states.12 According to Article I, Section 7, “Laws of the United States” are made through bicameralism and presentment—​that is, passage by the House and Senate, and presentation to the President for approval or disapproval.13 Under Article II, Section 2, “Treaties” are made by the President with the advice and consent of two-​ thirds of the Senate.14

7.  Herbert Wechsler, The Political Safeguards of Federalism:  The Role of the States in the Composition and Selection of the National Government, 54 Colum. L. Rev. 543, 543 (1954). 8. Id. at 546–​58. 9. The Federalist No. 45, supra note 4, at 311 (James Madison). 10. See Bradford R. Clark, Separation of Powers as a Safeguard of Federalism, 79 Tex. L. Rev. 1321 (2001). 11. See U.S. Const. art. VII. 12.  See id. art. V.  The states may also propose amendments, but this method has never been used. 13. See id. art. I, § 7, cl. 2. If the President disapproves, a bill can only become a law if two-​ thirds of both Houses of Congress vote to override the President’s veto. Id. 14. See id. art. II, § 2, cl. 2.

250

250 E nforcement of Customary International L aw

As explained in Chapter  9, by specifying that all three forms of supreme federal law may be adopted only through specific, finely wrought procedures involving designated political actors, the Constitution makes federal lawmaking more difficult by creating the effect of a supermajority requirement.15 This requirement also creates multiple veto gates, allowing participants in the lawmaking process to prevent the adoption of supreme federal law by withholding assent.16 Thus, constitutionally-​prescribed lawmaking procedures impose important “procedural safeguards of federalism” simply by making it more difficult to adopt supreme federal law capable of preempting state law. One feature of federal lawmaking procedures bears emphasis in this context. The Constitution singles out the Senate (or the states themselves) to participate in the adoption of all forms of the supreme law of the land. The Constitution thereby gives the Senate (or the states) an absolute veto over the adoption of every proposed federal law capable of overriding state law under the Supremacy Clause. The Senate is unique in this regard. Its assent is necessary to propose constitutional amendments (unless proposed by the states themselves), enact federal laws, and make treaties. Neither the House of Representatives nor the President participates in all three procedures.17

B These features of the constitutional structure shed light on the Supreme Court’s decision in Erie, discussed at length in Chapter 2. Erie interpreted

15. See Clark, supra note 10, at 1339–​40; John F. Manning, Textualism and the Equity of the Statute, 101 Colum. L. Rev. 1, 70–​77 (2001). 16. All participants in federal lawmaking have an absolute veto except the President when participating in the adoption of federal statutes. There, the President has only a qualified veto because the House and Senate may override that veto by a supermajority. 17. The unique role of the Senate was no accident. The Constitution structured the Senate to represent the states. Article I  gives all states—​regardless of size or population—​equal suffrage in the Senate, U.S. Const. art. I, § 3, cl. 1, and Article V provides that “no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.” Id. art. V. Moreover, senators were originally appointed by state legislatures. Although the Senate is now elected, id. amend. XVII, its constitutionally-​prescribed role in adopting all forms of the supreme law of the land remains unchanged. The Constitution continues to give a fixed number of senators perpetual and disproportionate power to block the adoption of all forms of federal law capable of displacing state law. Simply put, the Constitution conditioned the supremacy of federal law on the Senate’s ability to veto all forms of the supreme law of the land. See Bradford R. Clark, Constitutional Compromise and the Supremacy Clause, 83 Notre Dame L. Rev. 1421 (2008).

  251



Judicial Enforcement Against U.S. States

251

the Constitution to prohibit federal courts from disregarding state law in favor of general law unless the Constitution or federal statutes required them to do so. So long as state and federal courts both purported to apply general law to a particular matter—​even if they exercised independent judgment to determine its content—​the federal courts’ application of such law raised no serious concerns that federal courts were improperly disregarding applicable local state law. By contrast, after states localized the general law merchant and federal courts generalized local state tort law, the federal courts’ continued application of general law in cases such as Erie disregarded state law with no warrant in the Supremacy Clause for doing so. Accordingly, the Erie Court rested its decision on the principle that “[e]‌xcept in matters governed by the Federal Constitution or by Acts of Congress, the law to be applied in any case is the law of the State.”18 Because neither the Constitution nor a federal statute governed the matters at issue in cases subject to the Swift doctrine, the Erie Court concluded that “in applying the doctrine this Court and the lower courts have invaded rights which in our opinion are reserved by the Constitution to the several States.”19 Under Erie, then, and the constitutional principles underlying the decision, federal courts must apply state law unless the Constitution, laws, or treaties of the United States instruct otherwise. That said, in the aftermath of Erie, federal courts have recognized several specific enclaves of “federal common law.” Federal common law generally refers to “federal rules of decision whose content cannot be traced directly by traditional methods of interpretation to federal statutory or constitutional commands.”20 Such law has only limited operation in federal courts. For a time, the Supreme Court was open to inferring causes of action from statutes or constitutional provisions that created federal rights without express private remedies. Later, however, the Court all but ceased this practice.21 During the period when the Court was open to inferring causes of action, it did so to provide a means of redressing actual violations of the Constitution or a federal statute. The Court has never recognized a federal common law cause of action, absent congressional

18. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938). 19. Id. at 80. 20. Fallon et al., Hart and Wechsler’s The Federal Courts and the Federal System 635 (7th ed. 2015). 21. See, e.g., Alexander v. Sandoval, 532 U.S. 275, 287–​88 (2001).

252

252 E nforcement of Customary International L aw

authorization, without an underlying federal constitutional or statutory provision to enforce. In other words, the Court has never used federal common law to create both an underlying right and a cause of action for its enforcement. Moreover, the Court has recognized federal common law defenses in only limited circumstances. Such defenses have been controversial because, according to some justices, they violate both separation of powers and federalism.22 Today, the Supreme Court generally limits federal common law to situations in which it understands the Constitution or a federal statute to authorize such law. For example, as explained in Chapter 5, the Court has held that Article III’s grant of admiralty and maritime jurisdiction authorizes federal courts to apply general maritime law as federal common law. Similarly, at a time when the Court was more receptive to federal common law, it interpreted a federal statutory grant of subject matter jurisdiction over suits for violations of collective bargaining agreements between employers and unions to authorize federal courts to adopt federal common law rules to enforce such agreements.23 Even when the Court has determined that Congress authorized federal courts to generate federal common law causes of action, the Court has acted cautiously. For example, in Sosa v. Alvarez-​Machain,24 the Court defined the causes of action authorized by the ATS narrowly because, among other reasons, there has been a “significant rethinking of the role of federal courts in making” common law since Erie, and “a decision to create a private right of action is one better left to legislative judgment in the great majority of cases.”25 Under this reasoning, as explained later in this chapter, courts will not recognize a cause of action using customary international law to preempt state law without congressional authorization to do so. Notwithstanding the Supreme Court’s embrace of limited enclaves of federal common law, the Court has never endorsed the idea that all forms of customary international law automatically qualify as federal common

22. The Court famously recognized a federal common law defense in favor of the United States in Clearfield Trust Co. v. United States, 318 U.S. 363, 366–​67 (1943). More recently, a closely divided Court recognized a federal common law defense in favor of military contractors sued under state law for design defects of the products they supply to the United States. See Boyle v. United Techs. Corp., 487 U.S. 500, 504–​08 (1988). 23. See Textile Workers Union v. Lincoln Mills, 353 U.S. 448 (1957). 24. 542 U.S. 692 (2004). 25. Id. at 726-​27.

  253



Judicial Enforcement Against U.S. States

253

law. On the contrary, as discussed in Chapter  7, the Sabbatino Court declined to apply an asserted rule of customary international law against a recognized foreign state as federal common law, or any other kind of law. In short, the Constitution prescribes specific procedures for adopting supreme federal law. Even though federal courts have applied federal common law in limited instances, they have never used federal common law to create both an underlying right and a cause of action for its enforcement. Under the rationale of Erie, doing so would violate principles of both separation of powers and federalism. Erie instructs that except for matters governed by the Constitution, a federal statute, or a treaty, the law to be applied in any case is the law of the state. Under these principles, the relevant question for determining whether a court may apply modern customary international law against a U.S. state—​absent a federal statute or treaty adopting it as enforceable federal law—​is whether the Constitution provides a basis for displacing state law in favor of customary international law. As discussed below, the answer depends on the kind of customary international law at issue, the purpose for which the litigant is asserting it, and whether such use is permitted or required by the Constitution.

II Upholding the traditional rights of foreign nations under the law of state-​ state relations falls within Erie’s exception for matters governed by the Constitution. As discussed in Chapters 8 and 9, the Constitution’s allocation of powers—​understood in historical context and as applied by the Supreme Court—​requires courts and states to uphold the rights of recognized foreign sovereigns under the law of state-​state relations. In other words, U.S.  courts must enforce the rights of recognized foreign sovereigns under the law of nations against conflicting state action because specific constitutional provisions prevent states from countermanding recognition and from attempting to hold a foreign nation accountable for its misconduct. Three examples discussed at greater length in previous chapters illustrate how these constitutional restrictions on state action operate in practice. In Bergman v. De Sieyes,26 discussed in Chapters 4 and 7, the Second Circuit relied on Erie to hold that a federal court exercising diversity 26. 170 F.2d 360 (2d Cir. 1948).

254

254 E nforcement of Customary International L aw

jurisdiction must apply state law to determine whether an ambassador in transit is immune from suit. Because the court concluded that New York courts would recognize immunity under New  York law, it avoided a potential conflict between state law and customary international law. Nonetheless, the court erred in assuming that it was bound to apply state law in this context. The Constitution itself required both federal and state courts to apply the law of state-​state relations to uphold the immunities of ambassadors representing recognized foreign nations. By recognizing France, the political branches had signified that the United States (including its courts) would uphold the immunity of French diplomats under customary international law. If New York could abrogate such immunity, it could contradict recognition. As the Supreme Court held in an earlier case not cited by the Second Circuit, any action by a state that “amounts in substance to a rejection of a part of the policy underlying recognition by this nation” is not a power “accorded a State in our constitutional system.”27 Similarly, in Sabbatino, discussed in Chapters  4 and 7, the Supreme Court held that federal and state courts alike must apply the act of state doctrine to shield from judicial scrutiny the official acts of a recognized foreign sovereign taken within its own territory. As discussed, although the act of state doctrine reflected traditional notions of territorial sovereignty under the law of state-​state relations, the Sabbatino Court grounded its decision in the Constitution’s allocation of foreign relations powers to the political branches. The Court went out of its way to make clear that Erie posed no barrier to the application of the act of state doctrine and that the doctrine “must be treated exclusively as an aspect of federal law.”28 If, as the Court suggested, the act of state doctrine upholds the political branches’ exercise of the recognition power, then the Constitution itself requires the doctrine and preempts any contrary state law. In addition, as the Court also suggested, the act of state doctrine serves to prevent courts (and states) from usurping the political branches’ exclusive constitutional authority to decide whether, when, and how to hold another nation accountable for its misconduct. Under either justification, the doctrine is “a consequence of domestic separation of powers,”29 and the states have no more authority to alter the doctrine than any other aspect of the constitutional design.

27. United States v. Pink, 315 U.S. 203, 233 (1942). 28. Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 425 (1964). 29. W.S. Kirkpatrick & Co. v. Envtl. Tectonics Corp., 493 U.S. 400, 404 (1990).

  255



Judicial Enforcement Against U.S. States

255

Finally, as discussed in Chapter  8, head of state immunity derives from the traditional law of state-​state relations and remains uncodified. In Samantar v. Yousuf,30 the Supreme Court ruled that the Foreign Sovereign Immunities Act does not confer head of state immunity. Rather, the Court suggested that a former head of state “may be entitled to immunity under the common law.”31 The Court did not explain whether “the common law” in question is state, federal, or general law. As discussed, the states received the common law of England following independence, and such law included the law of nations as then understood. Although state common law has changed over the centuries, it generally continues to include the traditional head of state immunity recognized by the law of state-​state relations. Treating head of state immunity as state law, however, would mean that state courts and state legislatures remain free to alter or abolish such immunity. Under the structural approach described in this book, head of state immunity—​like diplomatic immunity and the act of state doctrine—​“must be treated exclusively as an aspect of federal law.”32 A refusal by either a state or federal court to afford immunity to the head of a foreign state recognized by the United States would contradict the political branches’ decision to recognize the nation and government in question. Because the Constitution gives the political branches exclusive power to recognize foreign nations and governments, the Constitution itself requires both federal and state courts to afford immunity to the heads of recognized foreign states unless and until the political branches unequivocally abrogate such immunity. All three of these examples illustrate why Erie does not prevent federal courts from upholding the rights of recognized foreign sovereigns under the law of state-​state relations. The Supreme Court has applied customary international law in this context because it has understood the Constitution to require such application, and states have no power to establish a contrary rule of decision. In other words, upholding the rights of recognized foreign states falls squarely within Erie’s express exception for “matters governed by the Federal Constitution.”33

30. 560 U.S. 305 (2010). 31. Id. at 325. 32. Sabbatino, 376 U.S. at 425. 33. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938).

256

256 E nforcement of Customary International L aw

III The constitutional provisions that require U.S. courts to uphold the rights of foreign sovereigns under the law of state-​state relations do not apply in the same way when litigants seek to enforce modern customary international law to restrict the internal governance of U.S. states. As discussed in Chapter 6, modern customary international law differs from the traditional law of state-​state relations because it seeks to regulate how nations treat their own citizens within their own territory. Modern customary international law developed in the twentieth century, largely in response to the atrocities of World War II. It includes prohibitions on extrajudicial killing, torture, and arbitrary detention. U.S. courts have not generally had to confront claims that U.S. states have violated these core human rights provisions. The U.S. Constitution itself prohibits states from violating core human rights through the Fourteenth Amendment, which the Court has held incorporates various provisions of the Bill of Rights. Some argue that customary international law also includes other rights (beyond those guaranteed by the U.S. Constitution) that nations must afford to their own citizens, including rights relating to employment, education, criminal justice, the environment, and social policy. For example, commentators have argued that customary international law now includes rights to choose employment, to form and join trade unions, to have a healthy environment, and to live free from hate speech.34 Commentators also have claimed that customary international law entitles minors to obtain a free primary education and to avoid life imprisonment without parole regardless of the crime committed.35 The question for our purposes is not whether such rights should be protected against state action as a normative matter. Rather, the question is which governmental actors have authority under the U.S. Constitution to decide whether states must comply with rules of modern customary international law as they may develop over time. Proponents of the modern position have urged U.S.  courts to apply uncodified rules of modern customary international law to override state law in the same way that they have applied traditional rules derived from the law of state-​state relations to uphold the rights of foreign sovereigns. The constitutional basis for upholding the rights of foreign sovereigns

34. See supra Chapter 6. 35. See supra Chapter 6.

  257



Judicial Enforcement Against U.S. States

257

against conflicting state action, however, does not support applying modern customary international law to restrict state governance prerogatives. Specifically, the constitutional provisions allocating powers to the federal political branches over recognition, diplomacy, reprisals, captures, and war that require U.S.  courts to uphold the rights of recognized foreign sovereigns under the law of state-​state relations have little relevance to whether states must conform their treatment of their own citizens within their own territory to new rules of modern customary international law. Modern customary international law did not exist until the twentieth century, and courts have had only limited opportunity to consider whether and how it applies against states absent incorporation into federal law by the political branches. The question, then, is whether there is a basis in the Constitution’s allocation of exclusive foreign relations powers to the political branches for requiring courts and states not only to uphold the rights of recognized foreign nations under the law of state-​state relations, but also to enforce the limits that modern customary international law imposes on the states’ police power to regulate within their traditional territorial jurisdiction. Recent scholarship suggests two possible theories. One theory, discussed in Chapter 9, is that the political branches’ recognition of foreign nations should now be taken to signify—​as a constitutional matter—​that U.S. states will comply not only with rights of such nations under the law of state-​state relations, but also with emerging norms of modern customary international law that restrict how states treat their own citizens within their own territory. A second theory is that the Constitution’s “dormant” foreign affairs powers preempt state law in conflict with modern customary international law. The next two sections consider these theories in turn.

A Many proponents of the modern position rely primarily on prior Supreme Court statements to the effect that “international law is part of our law” to argue that U.S.  courts must apply modern customary international law to constrain or redress actions by a U.S. state. As discussed in Chapter 7, however, the Court made such statements in reference to upholding the rights of foreign nations under the law of state-​state relations, not in reference to enforcing modern rules of customary international law against nations or states. As discussed in prior chapters, the constitutional rationale for upholding the rights of recognized foreign nations under the law

258

258 E nforcement of Customary International L aw

of state-​state relations does not extend to judicial enforcement of modern customary international law against foreign nations, the United States, or even U.S. states. If the modern position is to be accepted, then, it requires a different justification. Professor Carlos Vázquez has offered an alternative rationale for why U.S.  states are bound to comply with uncodified rules of modern customary international law. As explained in the previous chapter, he argues that U.S. recognition of a foreign nation now should be taken to signify that the United States not only will uphold that nation’s traditional rights under the law of state-​state relations, but also will conform its internal governance to any limitations that modern customary international law imposes. This argument would require the United States and each of its constituent states to conform its internal governance to the demands of modern customary international law. Recognition requires such compliance with modern customary international law, he argues, because “[a]‌nation’s obligations under the international law of human rights are obligations toward other states, not just toward individuals.”36 In other words, Professor Vázquez maintains that the rights of recognized foreign nations under the law of state-​state relations enforceable in U.S.  courts include not only the traditional sovereign rights of nations vis-​à-​vis one another, but also an inchoate right of each nation to have all other nations (and any constituent states) comply with modern rules of customary international law that constrain government conduct toward their own citizens in their own territory. As explained in the Chapter 9, this argument requires redefining the meaning of recognition as historically understood and as described by the Supreme Court throughout U.S.  history (including most recently in Zivotofsky v. Kerry37). Recognition has never been understood to signify that a recognized nation has an enforceable inchoate right to require the nation conferring recognition to comply with customary international law in matters involving only its own citizens in its own territory. Rather, recognition signified only how one nation would treat another nation and its citizens. The problem with redefining recognition to include an obligation to comply with modern customary international law—​even if recognition could 36. Carlos M. Vázquez, Customary International Law as U.S. Law: A Critique of the Revisionist and Intermediate Positions and a Defense of the Modern Position, 86 Notre Dame L. Rev. 1495, 1624 (2011). 37. 135 S. Ct. 2076 (2015).

  259



Judicial Enforcement Against U.S. States

259

bear this meaning—​is that it would conflict with other provisions of the Constitution. Most importantly, as explained in Chapter 9, it would circumvent the procedures that the Constitution prescribes for adopting preemptive federal law. If U.S.  courts applied modern customary international law to preempt state law governing state citizens, they would disregard federal lawmaking procedures and, in the process, violate not only the Constitution’s separation of powers, but also federalism. The Constitution established that the only forms of federal law capable of overriding state law—​the “Constitution,” “Laws,” and “Treaties” of the United States—​would be adopted by the Senate (or the states themselves) in conjunction with at least one other federal actor (the House of Representatives or the President). The Constitution’s imposition of procedures involving multiple veto gates makes preemption of state law harder by creating the effect of a supermajority requirement.38 Allowing the President alone to preempt state regulatory authority within the state by an act of recognition—​an act that the President might not even intend to have such effect—​would fundamentally alter the constitutional balance of power between the federal government and the states, as reflected in the constitutional text and historical practice. To be sure, some scholars believe that the Constitution should not be read to protect state governance prerogatives in any meaningful way. In several important cases, however, the Supreme Court has acknowledged and relied on the role of federal lawmaking procedures in protecting state authority.39 Given these decisions, it seems unlikely that that Court would wholly disregard the procedural safeguards of federalism and treat recognition as imposing an obligation on U.S. states to govern their own citizens in accordance with the demands of modern customary international law. The Supreme Court has been sensitive to federalism concerns even in cases involving international obligations of the United States. For example, in Medellin v. Texas,40 the Court refused to preempt state law on the basis of either the United States’ obligation to follow a decision of the International Court of Justice (ICJ) under a non-​self-​executing treaty or a presidential memorandum stating that the United States would discharge its international obligations by having state courts give effect to the ICJ

38. See Clark, supra note 10, at 1339–​40 (2001); Manning, supra note 15, at 70–​77. 39. See Gregory v. Ashcroft, 501 U.S. 452 (1991); Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985). 40. 552 U.S. 491 (2008).

260

260 E nforcement of Customary International L aw

decision. The Court reasoned that “not all international law obligations automatically constitute binding federal law enforceable in United States courts.”41 Because no relevant treaty “create[d]‌binding federal law in the absence of implementing legislation, and because it [was] uncontested that no such legislation exists,” the ICJ judgment was “not automatically binding domestic law.”42 “If ICJ judgments were … regarded as automatically enforceable domestic law,” the Court observed, “they would be immediately and directly binding on state and federal courts pursuant to the Supremacy Clause.”43 According to the Supreme Court, this kind of automatic enforceability was inconsistent with the terms of the treaty as well as the procedures that the Constitution requires to adopt supreme federal law. “Our framers established a careful set of procedures that must be followed before federal law can be created under the Constitution—​vesting that decision in the political branches, subject to checks and balances.”44 Because neither the treaty nor any federal statute provided for automatic judicial enforcement of the international obligation in question, the obligation was not enforceable in U.S. courts. The Court also concluded that the President lacked authority to implement the treaty on his own because neither the Constitution nor any federal statute authorized him to do so.45 The Court’s reasoning in Medellin runs contrary to suggestions that modern customary international law imposes self-​executing limits on state authority, and explains why lower federal courts have summarily dismissed claims that modern customary international law preempts state law in the absence of an act of Congress or treaty adopting it as supreme federal law. Federalism concerns also animated the Supreme Court’s decision in Bond v.  United States.46 In that case, the Court construed the Chemical Weapons Convention Implementation Act of 1998 narrowly not to apply to “a purely local crime.”47 Congress passed the Act to implement the Convention on the Prohibition of the Development, Production,

41. Id. at 504. 42. Id. at 506. 43. Id. at 510. 44. Id. at 515. 45. Id. at 524. 46. 134 S. Ct. 2077 (2014). 47. Id. at 2083.

  261



Judicial Enforcement Against U.S. States

261

Stockpiling, and Use of Chemical Weapons and on Their Destruction—​a non–​self-​executing treaty ratified by the Senate in 1997.48 The Act “closely tracks the text of the treaty,”49 providing that no person may knowingly “develop, produce, otherwise acquire, transfer directly or indirectly, receive, stockpile, retain, own, possess, or use, or threaten to use, any chemical weapon.”50 Further in keeping with the treaty, the Act defined “chemical weapon” in relevant part as “[a]‌toxic chemical and its precursors,”51 and defined “toxic chemical” as “any chemical which through its chemical action on life processes can cause death, temporary incapacitation or permanent harm to humans or animals.”52 Carol Anne Bond was charged with violating the Act after she learned that her husband was having an affair with her best friend, Myrlinda Haynes, who was pregnant with his child. Bond stole a chemical from her employer and purchased another online and sprinkled them on surfaces at Haynes’s home. Although these chemicals could be lethal in high doses, the amount Bond used was not intended to kill Haynes, but merely to cause skin irritation. Federal prosecutors charged Bond with violating the Act, and she was convicted and sentenced in federal court. Bond argued that the Act exceeded Congress’s enumerated powers and was thus unconstitutional. Rather than reach this question, the Supreme Court construed the Act narrowly not to encompass Bond’s conduct. According to the Court, the treaty’s implementing legislation “must be read consistent with principles of federalism inherent in our constitutional structure.”53 The Court thus would “insist on a clear indication that Congress meant to reach purely local crimes, before interpreting the statute’s expansive language in a way that intrudes on the police power of the States.”54 The Court justified this clear statement requirement by reference to the Constitution’s political and procedural safeguards of federalism. According to the Court, “when legislation ‘affect[s]‌ the federal balance, the requirement of clear statement assures that the legislature has in fact faced, and intended to bring into issue, the critical

48. S. Treaty Doc. No. 103–​21, 1974 U.N.T.S. 317. 49. Bond, 134 S. Ct. at 2085. 50. 18 U.S.C. § 229(a)(1) (2012). 51. Id. § 229F(1)(A). 52. Id. § 229F(8)(A). 53. Bond, 134 S. Ct. at 2088. 54. Id. at 2090.

262

262 E nforcement of Customary International L aw

matters involved in the judicial decision.’ ”55 Because the Bond Court found no clear statement of this kind in the implementing legislation, it refused to “presume Congress to have authorized such a stark intrusion into traditional state authority.”56 If the Bond Court was unwilling to interpret a federal statute implementing a treaty to displace the states’ authority to govern local crime, it seems unlikely that the Court would embrace a novel theory of recognition that would preempt state law on all matters encompassed by modern customary international law without any congressional action whatsoever. In accord with the reasoning of these precedents, lower federal courts have categorically dismissed claims that uncodified rules of modern customary international law are capable of preempting contrary state law.57

55.  Id. at 2089 (alteration in original) (quoting United States v.  Bass, 404 U.S. 336, 349 (1971)). Previously, in Gregory v. Ashcroft, 501 U.S. 452 (1991), the Court had justified application of such a clear statement rule on the same ground: “inasmuch as this Court … has left primarily to the political process the protection of the States against intrusive exercises of Congress’ … powers, we must be absolutely certain that Congress intended such an exercise.” Id. at 464. See also Bradford R. Clark, Process-​Based Preemption, in Preemption Choice: The Theory, Law, and Reality of Federalism’s Core Question 192 (William W. Buzbee ed., 2009) (arguing that the presumption against preemption and clear statement rules further the political and procedural safeguards of federalism). 56. Bond, 134 S. Ct. at 2093–​94. For divergent views on the merits of Bond, compare Paul B. Stephan, Bond v. United States and Information-​Forcing Defaults: The Work That Presumptions Do, 90 Notre Dame L. Rev. 1465 (2015) (offering a limited defense of Bond), with Edward T. Swaine, Bond’s Breaches, 90 Notre Dame L. Rev. 1517 (2015) (providing critical perspective on Bond). See also Julian Ku & John Yoo, Bond, The Treaty Power, and the Overlooked Value of Non-​Self-​Executing Treaties, 90 Notre Dame L. Rev. 1607 (2015) (discussing Bond and the importance of non-​self-​executing treaties). 57. See, e.g., Doe 1 v. Mich. Dep’t of Corrections, No. 13-​14356, 2014 WL 2207136, at *8 (E.D. Mich. May 28, 2014)  (rejecting claim that conditions of confinement violated customary international law on the ground that “the determination of what international obligations the United States chooses to recognize or enforce is an area that has been recognized as entrusted principally to the Legislative and Executive branches of the federal government”) (quoting Buell v. Mitchell, 274 F.3d 337, 374 (6th Cir.2001)); Hill v. Snyder, No. 10-​14568, 2011 WL 2788205, at *6 (E.D. Mich. 2011) (dismissing claim that criminal sentences violated customary international law, on the ground that the court was “not inclined to create a cause of action based upon customary international law where the legal authority in support of such a claim is virtually nonexistent and Plaintiffs’ avenue of redress, if any, is derived from the United States Constitution”). For similar reasons, courts have refused to apply modern customary international law to control actions by federal executive officials. In Serra v. Lappin, 600 F.3d 1191 (9th Cir. 2010), for example, the Ninth Circuit refused to apply a claimed norm of customary international law to an executive agency. The plaintiffs in Serra alleged that the wages they were paid when they served as inmates in a federal prison were so low as to violate modern customary international law. Id. at 1195. The Ninth Circuit rejected this claim. “This claim fails,” the Ninth Circuit explained, “because customary international law is not a source of judicially enforceable private rights in the absence of a statute conferring jurisdiction over such claims.” Id. at 1197.

  263



Judicial Enforcement Against U.S. States

263

That said, to the extent that customary international law now imposes constraints on how the United States and its constituent states treat their own citizens within their own territory, the Constitution gives the political branches ample power to bring the United States into compliance through the adoption of statutes and self-​executing treaties. When the political branches exercise these powers in accordance with federal lawmaking procedures, the resulting statutes or treaties qualify as the supreme law of the land under the Supremacy Clause and preempt contrary state law. In practice, Congress has rarely incorporated modern customary international law into supreme federal law, in part because the Constitution already guarantees U.S.  citizens important rights protected by customary international law. Moreover, the Senate has routinely conditioned its consent to modern international human rights treaties by issuing reservations, understandings, and declarations that make clear that such treaties do not constrain U.S. states.58 Finally, treating uncodified modern customary international law as federal law would flip the constitutional burden of inertia built into the constitutional design by requiring the political branches to take action in order to preserve—​rather than override—​state law. Rather than recognizing state authority to regulate in the absence of supreme federal law adopted by the political branches through prescribed lawmaking procedures, the proposed reading of the Constitution would require states to conform their conduct to customary international law unless and until the political branches acted to exempt them from such law. This understanding would mark a significant alteration of the Constitution’s basic design and structure as understood since the founding.

B Another argument offered by Professor Vázquez in favor of the application of modern customary international law to preempt state law relies on the idea of dormant foreign affairs preemption. In his view, the Constitution requires states to conform their conduct to modern customary international law in order to avoid causing “friction” with other nations. Such friction, he maintains, can interfere with how the political branches conduct the foreign relations of the United States. He notes that “[a]‌nation’s 58.  See Curtis A. Bradley & Jack L. Goldsmith, Treaties, Human Rights, and Conditional Consent, 149 U. Pa. L. Rev. 399 (2000).

264

264 E nforcement of Customary International L aw

obligations under the international law of human rights are obligations toward other states, not just toward individuals.”59 This means that “the United States’ violation of these norms is as likely to produce international friction—​and thus to complicate the nation’s pursuit of foreign relations goals—​as its violation of other [traditional] norms of customary international law” under the law of state-​state relations.60 In other words, the Constitution’s dormant, or unexercised, foreign affairs powers would suffice to prohibit a U.S. state from violating all established rules of modern customary international law even in the absence of any action by the political branches to incorporate them into U.S. law.61 The Supreme Court has expressed only limited support for so-​ called dormant foreign relations preemption—​the proposition that the Constitution’s unexercised foreign relations powers sometimes prohibit U.S. states from enacting laws or taking actions that unduly interfere with the conduct of foreign relations by the United States. Even if the doctrine is still viable, it does not support the claim that states must comply with all forms of modern customary international law in governing their own citizens within their own territory. A familiar objection to dormant foreign relations preemption is that it operates at too high a level of generality to establish an analytical framework capable of sorting unconstitutional from constitutional state action. The Constitution’s general allocation of war and foreign relations powers to the political branches does not preempt—​and, indeed, could not preempt—​any and all state action that generates “friction” with other nations. Whether a state action generates friction with another nation depends as much on that nation’s perception of the action as it does on the nature of the action itself. States are capable of offending foreign nations in innumerable ways—​by the local policies they adopt, by the local freedoms they enjoy, and by the statements their officials make. For example, state legislative, executive, and judicial officials have frequently criticized foreign nations or governments for having repressive policies or engaging

59. Vázquez, supra note 36, at 1624. 60. Id. 61.  Id. at 1623–​24. Professor Vázquez cautions that only international norms meeting a heightened standard of clarity and acceptance should count as preemptive federal law. Id. at 1624. Thus, he thinks “it is very likely that the human rights norms that would preempt State law would largely duplicate prohibitions imposed on the States by the Constitution.” Id. at 1625.

  265



Judicial Enforcement Against U.S. States

265

in repressive conduct. Such criticism may cause friction with foreign nations, but the Supreme Court has never suggested that such criticism alone could violate the Constitution’s allocation of powers. The Court also has never held that the Constitution preempts state action in an area of traditional state authority simply because the manner in which a state governs its own citizens could cause friction with other nations. The only case in which the Supreme Court relied on dormant foreign affairs preemption is Zschernig v. Miller.62 The case involved a challenge to an Oregon inheritance statute aimed at deterring communist nations from confiscating private property. The statute authorized escheat to the state when a nonresident alien claimed personal property as an heir of an Oregon resident, unless the heir could prove: (1) U.S. citizens had a reciprocal right to take property on the same terms as citizens or inhabitants of the foreign heir’s nation, (2) U.S. citizens had a right to receive payment in the United States of funds from estates in the foreign heir’s nation, and—​most relevant here—​(3) foreign heirs had a right to receive the proceeds of Oregon estates “without confiscation.”63 In Zschernig, residents of East Germany claimed to be the sole heirs of an Oregon resident who died intestate in 1962. Because the foreign heirs could not satisfy the statute’s requirements, the Oregon Supreme Court disallowed their inheritance of personal property under state law. The United States Supreme Court reversed on the ground that the Oregon statute was “an intrusion by the State into the field of foreign affairs which the Constitution entrusts to the President and the Congress.”64 Because the opinion contains broad language, some scholars have come to regard Zschernig as establishing a broad doctrine of “dormant foreign affairs preemption” of state action offensive to foreign nations.65 For example, the Court noted that the Oregon statute seemed “to make unavoidable judicial criticism of nations established on a more authoritarian basis than

62. 389 U.S. 429 (1968). 63. Id. at 430–​31. 64. Id. at 432. 65.  See, e.g., Carlos Manuel Vázquez, W(h)ither Zschernig?, 46 Vill. L.  Rev. 1259, 1294, 1313–​15 (2001). Other scholars have argued that the Constitution does not support a doctrine of dormant foreign affairs preemption. See Michael D. Ramsey, The Constitution’s Text in Foreign Affairs 259–​82 (2007); Jack L. Goldsmith, Federal Courts, Foreign Affairs, and Federalism, 83 Va. L. Rev. 1617, 1631 (1997) (criticizing Zschernig for permitting dormant foreign affairs preemption of state law).

266

266 E nforcement of Customary International L aw

our own.”66 According to the Court, state statutes that give rise to such criticisms affect “international relations in a persistent and subtle way” and “must give way if they impair the effective exercise of the Nation’s foreign policy.”67 Before considering the import of this reasoning for the status of modern customary international law in U.S. courts, it is worth noting that the Zschernig Court could have resolved this case without using such broad language. Specifically, the Court could have invalidated Oregon’s statute on the more specific ground that it contradicted the political branches’ recognition of the Federal Republic of Germany (FRG) as the legitimate government of all of Germany (even though the FRG only exercised actual control over West Germany).68 When the Court decided Zschernig, the United States had not yet recognized the German Democratic Republic (GDR), despite its de facto control over East Germany. The official position of the United States was that the GDR lacked “any legal validity.”69 To most observers, including Oregon, the GDR was all too real and was denying its citizens basic rights. Under the Constitution, however, the political branches had the exclusive right to make this determination on behalf of the United States, including its courts and states. The Oregon statute sought to pull back the curtain and distinguish between the recognized FRG, on the one hand, and the unrecognized GDR, on the other. In short, Oregon sought “to establish its own foreign policy”70 apart from the policy set by the political branches. Under these circumstances, the Zschernig Court could have rested its decision on the recognition power—​as it had in prior cases such as Belmont and Pink—​by holding that Oregon lacked constitutional power to reject “the policy underlying recognition [of the FRG] by this nation.”71

66. Zschernig, 389 U.S. at 440. 67. Id. 68. See Anthony J. Bellia Jr. & Bradford R. Clark, The Law of Nations as Constitutional Law, 98 Va. L. Rev. 729, 819–​22 (2012). 69. East German Government Established Through Soviet Fiat, 21 Department of State Bulletin 634, 634 (1949). The United States did not recognize the GDR as an independent nation until six years after Zschernig when it finally established diplomatic relations with the communist nation. See Agreement on the Establishment of Diplomatic Relations, German Democratic Republic-​U.S., Sept. 4, 1974, 13 I.L.M. 1436 (1974). 70. Zschernig, 389 U.S. at 441. 71. United States v. Pink, 315 U.S. 203, 233 (1942).

  267



Judicial Enforcement Against U.S. States

267

Of course, the Zschernig Court did not adopt this reasoning. Instead, it relied on a broadly stated theory of dormant foreign relations preemption. Even if taken at face value, however, Zschernig’s broad language does not establish that the Constitution requires U.S. states to comply with all forms of modern customary international law. First, the Supreme Court has conspicuously declined to rely on a broad reading of Zschernig in subsequent cases. For example, in Crosby v. National Foreign Trade Council,72 the First Circuit relied in part on Zschernig to preempt Massachusetts’s sanctions against Burma, but the Supreme Court affirmed solely on the ground that a federal statute imposing its own set of sanctions preempted state law.73 Similarly, in American Insurance Association v. Garamendi,74 the Court declined to rely on Zschernig to invalidate California’s Holocaust Victim Insurance Relief Act. Instead, the Court found that California law conflicted with the foreign policy expressed by the executive branch in a sole executive agreement with Germany. In both Crosby and Garamendi, the state in question took action targeting or criticizing a foreign nation’s conduct, but the Court declined to apply Zschernig’s friction rationale in either case. Whatever the current validity of the friction rationale as precedent, even Zschernig did not define this approach broadly enough to invalidate a state’s application of its own laws to its own citizens in its own territory with no criticism—​or even mention—​of a foreign nation. Zschernig, Crosby, and Garamendi all involved state action directed at foreign nations or their citizens. Such actions—​whether valid or invalid under the doctrine of dormant foreign affairs preemption—​at least concern how one nation treats another. Using dormant foreign affairs preemption to invalidate how a U.S.  state treats its own citizens would mark a vast expansion of the doctrine and cut deeply into the governance prerogatives of the states under the Constitution’s basic design and structure. Under Professor Vázquez’s approach, once the United States recognized any

72. 530 U.S. 363 (2000). 73. See generally Ganesh Sitaraman & Ingrid Wuerth, The Normalization of Foreign Relations Law, 128 Harv. L. Rev. 1897 (2015) (arguing that the trend is for courts to treat foreign relations issues less as exceptional issues, and more under ordinary separation of powers and federalism principles); John C. Yoo, Foreign Affairs Federalism and the Separation of Powers, 46 Vill. L. Rev. 1341, 1342, 1348 (2001) (observing that the Court avoided revisiting Zschernig in Crosby, but predicting that in the future “the Court perhaps may decide to defer to the better-​equipped political branches, rather than itself, to make foreign policy for the nation”). 74. 539 U.S. 396 (2003).

268

268 E nforcement of Customary International L aw

other nation, such recognition automatically would require all U.S. states to govern themselves in compliance with modern customary international law. Thus, if a state failed to comply with a right to a healthy environment, a right to employment, or any other right that might emerge under customary international law, the dormant foreign affairs doctrine would preempt contrary state law. Zschernig does not suggest preemption of this kind or of this scale even on its own broad terms. The Constitution’s allocation of powers—​understood in historical context and as applied by the Supreme Court in practice—​requires U.S. courts to apply some rules of customary international law to preempt state law. Specifically, the Constitution’s exclusive allocation of recognition, reprisal, capture, and war powers to the federal political branches requires courts to uphold the rights of foreign nations under the law of state-​state relations, even in the face of contrary state law. The structural rationale for applying the law of state-​state relations to uphold the rights of foreign sovereigns, however, does not apply to the use of modern customary international law to preempt state regulation of state citizens in state territory. Because modern customary international law did not exist when the Constitution was adopted, the Constitution does not address how such law interacts with the residual powers of the states or constitutionally-​ prescribed lawmaking procedures. The proponents of the modern position have yet to offer a persuasive constitutional rationale for treating all forms of uncodified modern customary international law as the supreme law of the land. Although scholars have suggested some arguments for constitutional incorporation of modern customary international law, they are pitched at a high level of generality and fail to account for basic aspects of the constitutional structure—​such as the states’ reserved powers and the constitutionally-​prescribed lawmaking procedures that serve to protect them. Although some scholars consider such powers and procedures ineffective or even outdated, the Supreme Court has continued to take them seriously, building important federalism doctrines around them. Perhaps for these reasons, U.S. court have refused to use uncodified modern customary international law to invalidate state law governing state citizens within state territory.

  269

Conclusion

For the founders, the most important branch of the law of nations to the collective interests of the United States was the law of state-​state relations. This body of law governed interactions between nations and determined questions of war and peace. In the early years of the republic, how the United States complied with the law of state-​state relations determined in large measure whether the new nation would survive and prosper. In drafting the Constitution, the founders took special care to assign powers over matters governed by the law of state-​state relations to the political branches of the federal government. In particular, the Constitution allocated exclusive power to the political branches both to recognize foreign nations and governments (and thereby signify that the United States would respect their rights under the law of state-​state relations), and to decide how to hold other nations accountable for their violations of U.S. rights under such law. Informed by these features of the constitutional structure, the Marshall Court’s decisions reflect two constitutional default rules. First, by allocating the recognition and war powers to the political branches, the Constitution established that courts and states must uphold the rights of recognized foreign nations under the law of state-​state relations. If courts violated the rights of a recognized foreign sovereign under the law of state-​state relations, they would have disregarded the political branches’ decision to recognize that sovereign, and they would have risked provoking retaliation by that nation without the consent of the political branches. Second, by allocating exclusive authority to the political branches to conduct diplomacy, issue reprisals, authorize captures, and declare and make war, the Constitution established that courts and states must refrain from unilaterally attempting to hold foreign nations accountable for their The Law of Nations and the United States Constitution. Anthony J. Bellia Jr. and Bradford R. Clark. © Oxford University Press 2017. Published 2017 by Oxford University Press.

270

270

Conclusion

violations of the law of nations. In other words, by giving the political branches exclusive authority over the accepted means of pursuing redress against foreign nations, the Constitution authorized the political branches exclusively to decide whether, when, and how the United States would pursue redress against foreign nations for their misconduct. Both of these default rules ensured that the political branches alone would control foreign relations with other nations on behalf of the United States. Supreme Court precedent continues to reflect both of these rules. Specifically, the Court has continued to require courts and states to uphold the uncodified rights of recognized foreign sovereigns derived from the law of state-​state relations (like head of state immunity), and to refrain from pursuing redress against foreign nations for their transgressions in the absence of express authorization from the political branches to do so. The Constitution’s treatment of the law of state-​state relations contrasted sharply with its treatment of the two other traditional branches of the law of nations. Whereas the Constitution gave the political branches exclusive authority over matters governed by the law of state-​state relations, the Constitution left matters governed by the law merchant to the exclusive or concurrent authority of the states. By giving federal courts jurisdiction to hear diversity of citizenship cases, the Constitution merely provided litigants with the option of adjudicating such cases in federal court rather than state court; it did not authorize federal courts to supply their own federal rules of decision or to override contrary state law. The Constitution also gave federal courts jurisdiction over admiralty and maritime cases. The founders considered the law maritime to be general law when they adopted the Constitution. In the twentieth century, however, the Supreme Court interpreted Article III’s specific grant of admiralty and maritime jurisdiction to incorporate the law maritime as a form of federal law. This development has little bearing on how U.S. courts should treat other kinds of general law. The Court has not interpreted any other grant of Article III jurisdiction to incorporate any other kind of customary international law. Modern customary international law restricts how nations treat their own citizens within their own territory, and did not exist at the founding. Accordingly, the Constitution contains no provisions designed to facilitate the application of such law in the U.S. legal system. Moreover, Congress has taken only limited steps to authorize application of such law in U.S. courts. Some commentators have attempted to justify the application of modern customary international law in U.S. courts by analogy to courts’ application of the law of state-​state relations under the Constitution. This analogy fails,

  271

Conclusion

271

however, because the constitutional provisions that consolidated power over the law of state-​state relations in the federal government—​most notably, the recognition power—​required courts to uphold the rights of foreign nations; they did not permit courts to apply the law of nations to constrain the way foreign nations, the United States, or U.S. states treat their own citizens within their own territory. Moreover, under the Constitution’s allocation of powers to the political branches over the various means by which one nation pursued redress against another, the political branches have the exclusive power to hold foreign nations accountable for violating international law. Thus, from the founding to the present, federal courts have upheld the uncodified rights of recognized foreign nations under the law of state-​state relations, but have declined to adjudicate or redress such nations’ violations of customary international law. The question whether U.S. courts may enforce customary international law to constrain or redress actions by the United States or its officials is bound up with the question whether U.S.  courts must uphold rights of foreign nations under the law of state-​state relations. The Constitution’s exclusive allocation of authority to the federal political branches to recognize foreign nations requires the U.S.  courts to uphold the rights of foreign nations under the law of state-​state relations against the United States. In upholding such rights against the United States and its citizens, U.S.  courts are merely respecting the political branches’ decision to recognize such nations. The same rationale does not apply, however, to judicial application of modern customary international law against the United States. Under its established meaning, recognition does not signify that the United States has agreed to have its own courts apply customary international law to restrict how the United States regulates its own citizens within its own territory. Any such understanding of recognition would contradict basic features of the constitutional structure designed to check and balance federal power, safeguard federalism, and preserve individual liberty. Whether judicial application of customary international law against U.S.  states is warranted under the Constitution depends on the kind of international obligation at issue, and how a litigant asks a court to enforce it. The states adopted the Constitution on the understanding that the powers delegated to the federal government “will be exercised principally on external objects, [such] as war, peace, negotiation, and foreign commerce,”1

1. The Federalist No. 45, at 313 (James Madison) (Jacob E. Cooke ed., 1961) (emphasis added).

272

272

Conclusion

and that the “powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.”2 Accordingly, the Constitution’s exclusive allocation of specific foreign relations powers to the political branches preempts state law that would deny foreign nations their traditional rights under the law of state-​state relations. The same rationale does not apply to judicial enforcement of modern customary international law to restrict how U.S. states treat their own citizens within their own territory. Neither the original constitutional design nor federal judicial precedent upholding the rights of foreign sovereigns under the law of state-​state relations establishes that courts should treat modern customary international law as a form of self-​executing preemptive federal law. That said, there is no question that such law may preempt contrary state law if the political branches of the federal government adopt it as the supreme law of the land in the exercise of their enumerated powers and in accordance with the specific lawmaking procedures set forth in the Constitution. This review of the law of nations, the constitutional provisions designed to interact with such law, and Supreme Court precedent underscores that the Constitution did not adopt a monolithic approach to the application of customary international law in U.S. courts. Rather, the Constitution was designed to interact with each branch of the law of nations differently, requiring courts to examine each kind of interaction in deciding when and how to apply customary international law. Given that the Constitution was designed to interact with the three traditional branches of the law of nations in distinct ways, it is not surprising that modern customary international law does not fit neatly into the constitutional design and cannot simply be analogized to one of these three traditional branches. Rather, to determine the role of modern customary international law in U.S. courts, lawyers and judges must evaluate such law on its own terms and determine—​in every case—​how it interacts with the Constitution’s precise text and structure.

2. Id. (emphasis added).

  273

Index

act of state doctrine, 97–​98, 102, 108, 152. See also Hickenlooper Amendment, Second Congress and, 111, 207–​8 Constitution and, 97, 103–​5, 107, 108, 151, 165, 173, 174, 221, 254 customary international law and, 204, 207–​8, 220, 221, 223–​24 Erie and, 97, 103–​4, 145, 152, 155, 254 immunity and, 175 law of state-​state relations and, 109, 145, 156, 164, 173, 220, 254 and the President, 111, 208n63 presumption against extraterritoriality and, 223 recognition and, 97–​101, 104, 105, 108–​9, 164, 173–​75, 182n124, 203, 221, 224, 227–​28, 254 Sabbatino and, 101n99, 101–​11, 151–​52, 154–​56, 164–​65, 174–​75, 203, 204, 207–​8, 219–​21, 254 separation of powers and, 107, 111–​12, 154–​55, 165, 203, 221, 254 Supreme Court and, 97–​104, 151, 164, 173–​75, 182n124, 203–​4, 254 admiralty and maritime jurisdiction. See also under Constitution: Article III; Judiciary Act of 1789 federal common law and, xxvii, 38n77, 115–​16, 130–​34

instance jurisdiction, 17, 113–​14, 122–​24, 139 Jensen and, 38n77, 115–​16, 128–​34 Joseph Story and, 69–​70, 113, 117–​18, 124–​27 prize jurisdiction, xviii, xxii, 8, 17, 64, 69, 74, 90, 113–​15, 122–​24, 147, 171 tidewater doctrine, 115, 119, 126–​27 tort law and, 113, 117–​21, 125–​27 vice-​admiralty courts, 120–​21, 125 admiralty courts. See also admiralty and m aritime jurisdiction captures and, 69, 113, 122 Alien Tort Statute (ATS), 123n36, 175n92, 183–​87, 208, 224 causes of action and, 183–​84, 224 Congress and, 70, 184, 202n32, 208–​9 modern customary international law and, 202n32 overview, 70, 183, 186n146, 224 Sosa v. Alvarez-​Machain and, 183–​87, 252 Supreme Court and, 183–​87, 202n32, 224–​25 Torture Victim Protection Act (TVPA) and, 208–​9 Alvarez-​Machain, Sosa v., 29n36, 183–​87, 252 revisionist position and, 183, 186–​87

The Law of Nations and the United States Constitution. Anthony J. Bellia Jr. and Bradford R. Clark. © Oxford University Press 2017. Published 2017 by Oxford University Press.

274

274

Index

ambassadors, 66, 227 appointment, xx, 15, 53, 54 Article I and, 42, 50, 51 Article II and, xx, 15, 50, 51, 53–​55 Article III and, xx, 16, 43, 68–​69, 171n76 Constitution and, xx, 15, 16, 42, 43, 50, 51, 53–​55, 59n67, 68, 182, 254 dismissing, 60 Emmerich de Vattel on, 45–​47 judicial proceedings against, 68–​69, 171n76 law of state-​state relations and, 8, 42, 66, 68, 254 recognition, 8, 15, 42, 51, 53–​57, 96, 182, 227 rights of, 11, 49, 57, 68, 96, 184. See also diplomatic immunity: for ambassadors; embassy, right of sending and receiving, xx, 8, 15, 42, 45n3, 47, 49–​51, 54–​57, 59n67, 96, 197n16, 214, 227 Supreme Court and, 56, 68–​69 American Insurance Association v. Garamendi, 267 American Revolution, 9–​11, 121, 247 American War of Independence, xvi, 11, 48 Arising Under Clause, 68 arising under jurisdiction, xx, 43, 54, 68, 90n55, 152, 171, 172, 180 Article III. See under Constitution, U.S. Articles of Confederation, 12n37, 13, 247 captures and, 70n106, 122 law merchant and, 2, 14 law of nations and, xvi, 2, 3 law of state-​state relations and, 2, 14–​15, 43, 48 national courts authorized by, 43, 70n106, 122 prize cases, maritime causes, and, 123 Ashcroft, Gregory v., 259n39, 262n55 Baltimore & Ohio Railroad Co. v. Baugh, 34 Banco Nacional de Cuba v. Sabbatino. See Sabbatino, Banco Nacional de Cuba v.

Bank Markazi v. Peterson, 210–​11 Barreme, Little v., 186n144, 206–​7, 236–​37 Baugh, Baltimore & Ohio Railroad Co. v., 34 Belmont, United States v., 98–​101, 104, 108, 173–​76, 180, 182, 266 Bergman v. De Sieyes, 95–​96, 175, 182, 253–​54 Blackstone, William, 184 on causes of action, 23 Commentaries on the Laws of England, 3, 5, 62 on common law, 7, 22 on law maritime, 117 on law merchant, xvii, 22–​23 on law of nations/​general law, xv, 3, 5–​7, 8nn19–​22, 54nn43–​49, 58n57, 184 on letters of marque and reprisal, 61n75, 62 on municipal law, 5 Boit, DeLovio v., 118n13, 119n21, 120n23, 124–​26 Bond v. United States, 260–​62 Bradley, Curtis A., xiv, 65n89, 84n36, 101n99, 145n20, 167n68, 168–​69, 175n92, 176n94, 180n114, 180n118, 186n145, 198n17, 232n55, 233n60, 263n58 Brilmayer, Lea, xiv, 142n8, 150n1, 152n12 Britain. See England British Parliament. See English Parliament Brown v. United States, 85–​87, 211n81, 238–​40, 243 captures, 52, 66, 195, 207, 237. See also Nereide; Peters; prize cases; Schooner Exchange v. McFaddon admiralty courts and, 69, 91, 113–​14, 122 Articles of Confederation and, 70n106, 122 Congress and, 64, 65, 67n97, 85–​87, 109, 115, 187, 206

  275

Index Constitution and, xix, xxi, 15, 41–​43, 50, 52, 58, 63–​64, 71, 74, 75, 79, 87, 89, 104, 109–​10, 112, 115, 146, 169, 171n75, 175, 187, 194, 199, 204, 211, 245, 257, 268, 269 law of nations and, 64, 163, 240 law of state-​state relations and, 17, 64, 69, 93, 106, 115, 122, 146, 163, 169, 187, 216, 217, 257, 268 privateers and, 66, 69, 85–​87, 110, 162, 201, 217–​18 prizes and, 8, 17, 69, 77–​79, 92, 93, 122, 240 recognition and, 64–​65 during Spanish-​American War, 218, 240. See also Paquete Habana Supreme Court and, 91–​93, 110, 112, 163, 175, 201, 207, 217, 218 and war, 64–​65, 92–​93 during War of 1812, 85–​87, 217–​18 Captures Clause, 63–​64 Caroline affair/​Caroline case, 180–​81 Cassius (vessel), 77, 79, 216. See also Peters causes of action Alien Tort Statute (ATS) and, 183–​84, 224 Congress and, 123, 161, 184, 187n147, 252, 253 local law and, 23–​24 Process Acts and, 26–​27, 123 savings clause and, 124n38 Supreme Court and, 61, 124n38, 183–​84, 187n147, 223, 224, 251–​53 Torture Victim Protection Act and, 208 Charming Betsy. See Schooner Charming Betsy, Murray v. The Charming Betsy canon, 84–​85, 216, 223, 235–​36 Chase, Salmon P., 206 Chemical Weapons Convention Implementation Act of 1998, 260–​61 Chicago v. Robbins, 34

275

citizenship, diversity of. See diversity jurisdiction Cleveland, Sarah H., 50n30, 65n90 Coke, Sir Edward, 118n17, 119n18, 120 Commerce Clause, 20 commercial law, general, xvii, 23–​24, 27–​29, 35. See also law merchant Erie and, 39 Hendren and, 176–​77 Judiciary Act of 1789 and, 31 Swift v. Tyson and, 30, 32–​33. See also Swift v. Tyson common law. See also federal common law; specific topics of England, 2, 5–​8, 20, 24, 42, 74, 121, 213, 255 U.S. states adopting, 10–​11 William Blackstone on, 7, 22 Constitution, U.S., xiii. See also specific articles; specific clauses; specific topics Article I, 16, 51, 53, 61, 104, 166, 170, 229, 250n17 ambassadors and, 42, 50, 51 and authorizing captures, xix, xxi, 15, 42, 50, 58, 63–​65. See also captures: Constitution and and Congress’s powers, xxii, 14, 19–​20, 59, 61, 63–​65, 169 initiating wars and, 15, 42, 50, 58, 59, 61, 64 and the law merchant, 14, 38 and letters of marque and reprisal, xix, 15, 17, 50, 58, 61, 63–​65, 104, 115 overview, xix–​xx, 15, 42 and the President’s powers, 19–​20, 169 Section 7, 249 Section 8, 63n81, 64 Section 10, 54, 55, 59, 63, 64 treaties and, 42, 50, 51 Article II, 16, 19–​20, 38, 42, 53, 63n81, 104, 166, 170 ambassadors and, xx, 15, 50, 51, 53–​55 Congress and, xx, 15, 169

276

276

Index

Constitution, U.S. (Cont.) Article II (Cont.) initiating wars and, 50, 59–​60, 60n74 overview, xx, 15, 50, 51 and the President’s powers, xx, 15, 53–​55, 59–​60, 60n74, 169, 229, 234 Section 2, 249 treaties and, xx, 15, 50, 51, 54, 229, 249 Article III, xxii, 25, 43, 50, 54, 67–​68, 114, 127, 140, 144, 148, 171, 180, 181 ambassadors and, 16, 43, 68–​69 Arising Under Clause, 68 arising under jurisdiction, xx, 43, 54, 68, 90n55, 152, 171, 172, 180 diversity jurisdiction and, xxii, 19, 25–​26, 70, 132, 145, 148, 172 grant of admiralty and maritime jurisdiction, xxii, 43, 68, 69, 114, 116, 122, 123, 125–​26, 129–​31, 133–​34, 140, 147, 171–​72, 252, 270 Joseph Story on, 125–​26 original purpose, 147–​48 overview, xx Supreme Court and, 68–​69, 116, 129–​34, 152, 172–​75, 179–​80, 252, 270 Article V, 229, 249, 250n17 Article VI, 54, 152, 153n12 Article VII, 249 law of nations and, xix, 3–​18 “Law of Nations” mentioned in, xix Constitutional Convention. See Federal Convention of 1787 consular immunity, 153, 166 Convention on the Prohibition of the Development, Production, Stockpiling, and Use of Chemical Weapons and on Their Destruction, 260–​61 Costaguta, De Rees v., 180n113 Crimes Act of 1790, 66–​67, 158n33 Crosby v. National Foreign Trade Council, 267 Croudson v. Leonard, 133

Cuba. See also Paquete Habana; Sabbatino U.S. recognition of, 102–​3, 108, 109, 219–​20 Curtiss-​Wright Export Corp., United States v., 241–​42 customary international law. See also specific topics act of state doctrine and, 204, 207–​8, 220, 221, 223–​24 and the Constitution, 139–​48 inadequacy of existing theories of, 149–​88 diplomatic immunity and, 175, 182, 254 head of state immunity and, 153, 168, 197–​99, 230 judicial enforcement of against foreign nations, xxiv, 193–​211 against the United States, xxiv, 213–​43 against U.S. states, xxiv, 245–​68 law of nations as predecessor to, xv modern, xxii–​xxiii, 139–​48, 202n32 arguments that U.S. courts should enforce such law against U.S. states or the United States, 190–​91 recognition and, 105, 165, 175, 193, 194, 199, 202–​4, 214, 215, 220, 223, 225, 226, 228, 231, 246, 257–​59, 262, 271 role it should play in U.S. domestic courts, xi, xiii, 189–​91 existing theories regarding, xiii–​xiv, 149–​88 U.S. federal system and, xiii Declaration of Independence, xvi, 2, 3, 9–​10, 20, 25, 48, 247n1 Declare War Clause, 59 Definitive Treaty of Peace Between the United States of America and His Britannic Majesty (1783), xvi–​xvii, 11, 12, 42, 49, 68, 70, 106n120, 247 Dellapenna, Joseph W., 100n91 De Longchamps, Respublica v., 11

  277

Index DeLovio v. Boit, 118n13, 119n21, 120n23, 124–​26 Denmark, 83, 207, 217, 235, 237. See also Schooner Charming Betsy recognition of United States, 83n32 U.S. recognition of, 83–​85, 235 De Rees v. Costaguta, 180n113 De Sieyes, Bergman v., 95–​96, 175, 182, 253–​54 diplomatic immunity, 95, 175, 194–​95. See also immunity for ambassadors, 8, 68, 96, 182, 254 Bergman v. De Sieyes and, 95–​96, 175, 182, 253–​54 Congress and, 194 Constitution and, 96, 175, 177, 182, 254, 255 customary international law and, 175, 182, 254 Erie and, 95–​96, 145, 253–​54 for France, 96, 254 law of state-​state relations and, 94–​96, 145, 156, 175, 182, 214, 254 recognition and, 194–​95, 254 diplomatic recognition. See recognition, diplomatic Diplomatic Relations Act of 1978, 95n69, 194 diversity jurisdiction, 90, 116, 148 act of state doctrine and, 103 Article III and, 19, 25, 70, 131, 132, 145, 148, 172 Bergman v. De Sieyes and, 95, 253–​54 Congress and, 13–​14, 20, 26, 70 Constitution and, 13–​14, 20, 26, 28, 33, 132, 140, 270 Erie and, xxii, 36, 103, 131, 132, 145, 174, 253–​54 James Madison on, 25–​26 Judiciary Act of 1789 and, 172 law merchant and, xxii, 13–​14, 19, 20, 25, 26, 28, 33, 36, 114, 132, 140, 144–​45 Sabbatino and, 174 Swift doctrine and, 20–​21, 27, 36, 94 Dodge, William S., xv, 5n4, 39n79, 65n90, 74n1, 152n12, 160n42

277

dormant foreign affairs doctrine, 257, 268 dormant foreign affairs preemption, 257, 263–​68 Due Process Clause, 129n65, 131n76 Dunham, Insurance Co. v., 126 Dutch Republic, 48, 49 embassy, right of, 45–​46, 49. See also ambassadors England. See also American Revolution Commentaries on the Laws of England (Blackstone), 3, 5, 62 common law of, 2, 5–​9, 20, 24, 42, 74, 117, 118n17, 120–​21, 213, 255 U.S. states adopting, 10–​11 Crown of, 8, 54, 58, 61n75, 117, 118, 120–​21 law maritime and, 9, 113, 115, 117, 118n17, 119, 120–​21 municipal law and, 5, 6, 8, 9, 20, 22–​24 tort law, 117–​21 English Parliament, 3, 7, 14, 22, 23, 117 Erie Railroad Co. v. Tompkins, xxvi, 34, 95–​96, 151, 253, 255 act of state doctrine and, 97, 103–​4, 145, 152, 155, 254 Bergman v. De Sieyes and, 95–​96, 253–​54 Constitution and, xxii, xxvi, 19–​21, 36–​39, 96, 104, 115, 132, 145, 153, 155, 170, 250–​51, 253, 255 Curtis Bradley and Jack Goldsmith on, 168 diplomatic immunity and, 95–​96, 145, 253–​54 diversity jurisdiction and, xxii, xxvii, 36, 103, 131, 132, 145, 174, 253–​54 general law (vs. state law) and, 38, 39, 75, 94–​96, 115, 131, 145, 169–​70, 251–​52 international law (vs. state law) and, xxviii, 145, 151–​53, 155, 168–​70, 255 Jensen Court and, 116, 128–​32 overview, xxii, xxvi, 21, 36–​37, 250–​51 Philip Jessup on, 151–​55

278

278

Index

Erie Railroad Co. v. Tompkins (Cont.) revisionists and, 168–​70 Sabbatino Court and, 103–​4, 152, 155, 174, 254 and state tort and contract law, 38, 94–​95 Swift doctrine and, 21, 29n36, 36, 38, 94, 104, 129n65, 130, 131, 251 Swift v. Tyson and, 37n69, 39, 96, 104 extraterritoriality, presumption against, 185, 221–​25 Fairbanks, Halsey v., 29 federal common law, 133, 251–​53 Article III and, 252 causes of action and, 251–​53 customary international law and, 252–​53 defined, 251 federal general common law, 38n77 head of state immunity and, 196, 198 maritime law and, 131, 252 Sabbatino Court and, 253 Supreme Court and, 186–​87, 251–​53 federal common law crimes, 66, 159–​61 federal common law of foreign relations, doctrine of the, 101n99 Federal Convention of 1787, xvii, 2, 12–​13, 25, 42, 49, 50, 122 federal courts. See Constitution: Article III federalism, xii, 4, 167–​69, 247, 252, 253, 259–​61, 267n73, 268, 271 political safeguards of, 215, 248–​49, 261, 262n55 procedural safeguards of, 215, 230, 250, 259, 261, 262n55 Federalist, The, 55n51, 63n82, 67, 122–​23, 248n4, 249n9, 271n1 First Judiciary Act. See Judiciary Act of 1789 Fletcher, William A., xviii, 28n30, 128n62 Foreign Assistance Act of 1964. See Hickenlooper Amendment, Second

foreign diversity jurisdiction, xxii, 70 foreign official immunity, 197n16. See also foreign sovereign immunity Foreign Relations Law of the United States, Restatement (Third) of the, 65n89, 151, 197n16, 227n38 Foreign Sovereign Immunities Act of 1976 (FSIA), 196, 197n15, 209, 210, 255 foreign sovereign immunity, 209, 227–​28. See also immunity; sovereign immunity Congress and, 96, 196. See also Foreign Sovereign Immunities Act of 1976 congressional abrogation of, 209, 210 head of state immunity and, 195–​96, 197n16. See also head of state immunity law of state-​state relations and, 195, 209, 214 recognition and, 227–​28 “restrictive” theory of, 195–​96 State Department and, 195–​96, 197nn15–​16 Supreme Court and, 179–​80, 195, 197n15 France, 206–​7, 216, 235–​37 law of state-​state relations and, 11, 12, 76–​78, 80, 95, 96, 107, 157, 159, 200, 201 prize determinations, 77, 78, 107, 216 prizes and, 76, 140n1, 216 recognition by United States, 48, 76, 78 U.S. recognition of, 76, 78, 80, 96, 182, 254 U.S. relations with, 66, 76–​82, 96, 157, 216, 238. See also Little v. Barreme; Peters; Schooner Exchange v. McFaddon Non-​Intercourse Act of 1800, 83, 216–​17, 235, 237 Quasi-​War, 83, 85n38, 94n65, 186, 205–​6, 236–​37

  279

Index French diplomats, 96 immunity of, 182, 254 French ports, 206–​7, 237. See also Little v. Barreme French prize court, 216 French territories, U.S. commerce with, 83, 206–​7, 216–​17, 235, 237. See also Non-​Intercourse Act of 1800 French warships, 66, 77–​82, 159, 201, 205–​6, 216. See also Schooner Exchange v. McFaddon Garamendi, American Insurance Association v., 267 general law, 5–​6, 34–​39, 95–​96, 181–​82. See also law of nations; specific topics Genêt, Edmond-​Charles (Citizen Genêt), 76 German Democratic Republic (GDR), 266 Goldsmith, Jack L., xiv, 37n70, 65n89, 101n99, 167n68, 168–​69, 175n92, 176n94, 180n114, 180n116, 186n145, 198n17, 233n60, 242n105, 263n58, 265n65 Goodman, Ryan, 150n1 Great Britain. See England Gregory v. Ashcroft, 259n39, 262n55 Habeas Corpus Act of 1842, 181 Halsey v. Fairbanks, 29 Hamilton, Alexander, 67, 122–​23 Hand, Learned, 95, 95n72 Haskell, Widgery v., 29 head of state immunity, 197nn15–​16. See also Foreign Sovereign Immunities Act of 1976; Schooner Exchange v. McFaddon as an aspect of state vs. federal law, 255 common law and, 196, 255 Constitution and, 195, 197 customary international law and, 153, 168, 197–​99, 230

279

foreign sovereign immunity and, 195, 196, 197n16. See also foreign sovereign immunity law of state-​state relations and, 90, 94, 166, 168, 175, 195, 198, 199, 255 recognition and, 195, 198, 255 Samantar v. Yousuf, 175, 196, 197n16, 198, 255 Hendren, New York Life Insurance Co. v., 176–​77 Henfield, Gideon, 66, 159, 160n43 Henfield’s Case, 66nn95–​96, 159–​60 Henkin, Louis, xiv, 65n89, 95n72, 150n1, 152, 154, 233, 233n59, 234 Hickenlooper Amendment, Second, 207–​9, 211 Holmes, Oliver Wendell, 29n36, 94n66, 130, 131 human rights law, international, 142–​43 Illinois, Ker v., 177–​79 immunity of foreign ambassadors, 8, 68, 96, 182, 254. See also diplomatic immunity law of state-​state relations and, 68, 90 for foreign warships, 80–​82, 201. See also Schooner Exchange v. McFaddon John Marshall on, 81–​82, 195 law of state-​state relations and, 214 recognition and, 230 types of, 197n16, 198. See also consular immunity; diplomatic immunity; foreign sovereign immunity; head of state immunity imperfect right(s), 48. See also perfect right(s) “instance courts,” 17, 114, 123–​24 Insurance Co. v. Dunham, 126 intermediate position (status of international law in U.S. courts), xiv, xxviii, 149–​50, 176n94, 181–​82, 187, 226n35, 258n36

280

280

Index

International Court of Justice (ICJ), 259–​60 international human rights law, 142–​43 Iran, 210–​11 Jackson, Robert, 242, 243n113 Janis, Mark Weston, 3n1, 12n37, 44n2, 142n7, 143n12, 157n31 Jay, John, 49, 158, 158n36, 200, 201 Jensen, Southern Pacific Co. v., 29n36, 38n77, 115, 116, 128–​34 Jessup, Philip, 151–​56 Jinks, Derek P., 150n1 Johnson, William, 114, 126n51 judicial default rules, xx–​xxii, 41–​42, 75, 269–​70 Judiciary Act of 1789, 27, 68 admiralty jurisdiction and, 82, 123n34. See also admiralty and maritime jurisdiction Article III and, xxii Congress and, 17, 26n22, 27, 69, 82 Constitution and, 172n80 law merchant and, xxii law of state-​state relations and, 172 prize cases and, 17 Section 9. See Alien Tort Statute Section 25, 172 Section 34, 27, 30–​32 Supreme Court and, 68, 69, 70n107, 172 just cause for war, 67, 77, 85, 105, 222, 223 act of state doctrine and, 104n112 denial of immunity to government official as, 198 law of state-​state relations and, xxi, 8, 57–​58, 68, 78, 139, 146, 236 prizes and, 77, 78, 114 treaty violations as, xvii, 11, 70 violation of perfect rights as, xviii, 8, 45, 47, 48, 58, 60, 68, 104n112, 146, 236 violations of the law of nations as, xvii, 11

Kent, Andrew, 65n90, 67n97 Kerry, Zivotofsky v., 56n52, 108, 227–​28, 230, 231, 243n115, 258 Ker v. Illinois, 177–​79 Kiobel v. Royal Dutch Petroleum Co., 185, 224–​25 Klaxon Co. v. Stentor Electric Manufacturing Co., 39n79 Koh, Harold Hongju, xiv, 146n20, 150n1, 152n12, 153, 156n29, 166 Lappin, Serra v., 262n57 law maritime. See also specific topics Constitution and, xxii, 113–​34 federal common law and, 131, 252 overview and nature of, xviii, 3–​4, 16–​17 prizes and, 117, 140, 147. See also prizes William Blackstone on, 117 law merchant, xv, xx, 35. See also commercial law, general; specific topics Articles of Confederation and, 2, 14 as based on international custom and practice at the founding, xxiii Constitution and, xiii, xviii, xxii, 14, 19–​39 diversity jurisdiction and, xxii, 13–​14, 19, 20, 25, 26, 28, 33, 36, 114, 132, 140, 144–​45 English law and, 7. See also England federal courts’ application of, xxii overview and nature of, xvii, 1, 3, 7, 13–​14, 21–​22 Swift v. Tyson and, xxv William Blackstone on, 22–​23 law of nations. See also specific topics branches of, xvii–​xviii, 3–​4, 13–​17. See also law maritime; law merchant; law of state-​state relations Constitution and, xvii, 3, 4 courts and, xxiii English law and, 7

  281

Index vs. modern customary international law, xxii–​xxiii, 135–​36, 139–​48 as the “(supreme) law of the land,” 4–​7, 89, 156, 161, 163, 213, 272. See also “supreme law of the land” overview and nature of, 4–​6 role in shaping United States, xvi–​xviii Law of Nations, The (Vattel), 3, 4, 5n7, 44–​47, 51–​52, 61–​62, 85n37, 97, 102n102, 221 “Law of Nations” mentioned in Constitution, xix law of state-​state relations, 215–​16. See also specific topics act of state doctrine and, 109, 145, 156, 164, 173, 220, 254 ambassadors and, 68, 254 Articles of Confederation and, 2, 14–​15, 43, 48 captures and, 17, 64, 69, 93, 106, 115, 122, 146, 163, 169, 187, 216, 217, 257, 268 Constitution and, 41–​71, 269, 270 diplomatic immunity and, 94–​96, 145, 156, 175, 182, 214, 254 in federal courts, 73–​112 foreign sovereign immunity and, 195, 209, 214 France and, 76–​78, 80, 95, 107, 157, 159 head of state immunity and, 90, 94, 166, 168, 175, 195, 198, 199, 255 just cause for war and, xxi, 8, 57–​58, 68, 78, 139, 146, 236 Marshall Court and, 84, 87, 93, 105 modern position and, xxiii, 136, 162, 165–​66, 199, 256–​58 The Nereide and, 89–​91, 106, 132, 162, 217, 218 overview and nature of, xvii–​xxi, 3, 14–​15, 41, 42 Paquete Habana and, 91–​93, 106, 164, 218

281

perfect rights and, xviii, 8, 57–​58, 60, 84, 139, 146, 223, 236 Peters and, 76–​78, 91, 107, 132, 200, 216, 218 President’s power related to, xx recognition and, 57, 65–​66, 71, 83–​85, 87, 96, 101, 106, 109, 112, 132, 139, 140, 146, 161, 162, 164–​66, 169, 170, 175, 176, 187, 193–​95, 197, 199, 209, 214–​16, 218–​20, 225, 226, 232–​33, 235, 246, 253–​55, 257–​58, 269–​71 revisionist position and, xxviii–​xxix, 168–​70, 172, 176 Sabbatino and, 104–​9, 112, 155–​56, 165, 176, 180, 202, 220 “law of the land.” See law of nations; municipal law; “supreme law of the land” League of Nations, 142 Leonard, Croudson v., 133 letters of marque and reprisal, xxi, 61. See also reprisals Constitution and, xix, xxvi, 15, 17, 50, 58, 61, 63–​65, 67n97, 104, 115 William Blackstone on, 62 Little v. Barreme, 186n144, 206–​7, 236–​37 Litvinov Agreement, 98–​101 local law. See also tort law: local state causes of action and, 23–​24 vs. general law, 5–​6, 27, 31–​36, 145, 159 Joseph Story on, 29 law merchant and, 23 Lochner v. New York, 38n77, 129, 131n76 Longchamps, Charles Julian (“Chavelier”) De. See De Longchamps, Respublica v. Madison, James, xxvii, 12, 25–​26, 63, 144–​45, 160, 248, 249 Mansfield, Lord (William Murray), 6, 64 maritime law. See law maritime marque and reprisal. See letters of marque and reprisal

282

282

Index

marque and reprisal clause, 63n81 Marshall, John on confiscating enemy property, 86, 200–​201, 238, 239. See also Schooner Exchange v. McFaddon on holding foreign nations accountable for violations of U.S. rights, 200–​201 on immunity, 81–​82, 195 The Nereide and, 201, 205 on retaliating against foreign nations, 201, 205, 206 Schooner Exchange v. McFaddon and, 81–​83, 195, 200–​201 Marshall Court, 52, 88n52, 90, 146, 157n31, 172–​73, 175, 223n25 Charming Betsy and, 84 on executive authority, 242, 243 law of state-​state relations and, 84, 87, 93, 105 Marshall Court decisions, 85, 87, 110 Brown and, 85, 87, 243 constitutional default rules that the decisions reflected, 269–​70 The Nereide and, 85, 87, 88n52 Maryland Constitution of 1776, 121n27 McFaddon, Schooner Exchange v. See Schooner Exchange v. McFaddon McLeod affair, 180–​81 McReynolds, Clark, 129 Meltzer, Daniel J., 150–​51n1 Mexico, Oliver American Trading Co. v., 179–​80 Miller, Zschernig v., 265–​68 M’Kean, Thomas, 11 modern customary international law, xxii–​xxiii, 135–​36, 139–​48, 225–​31, 256–​63, 268, 272. See also customary international law modern position (status of international law in U.S. courts), xiv, 152–​53, 156–​57 Constitution and, xxiii, 153, 165, 166, 168, 181, 198, 256–​58

definition and overview, xxviii, 136, 149, 150, 166 Erie and, 152, 153 flaws in and criticisms of, 149–​50, 153–​54, 167–​68, 181, 199, 258, 268 immunity to government officials and, 197, 198 law of state-​state relations and, xxiii, 136, 162, 165–​66, 199, 256–​58 Sabbatino and, 152–​56, 162 Sosa v. Alvarez-​Machain and, 186–​87 Supreme Court and, 153, 156–​57, 162, 165, 186–​87, 198, 257 Morrison v. National Australia Bank, 222–​23 municipal law (“law of the land”), 9–​11, 80 common law and, 5, 8–​11, 22 defined, 5 England and, 5, 6, 8, 9, 20, 22–​24 vs. law maritime, 9 law merchant and, xvii, 10, 20 law of nations and, 5, 6, 8, 10, 11, 20 local law and, 5–​6 nature of, 5–​6 Murray v. The Schooner Charming Betsy. See Schooner Charming Betsy, Murray v. The National Australia Bank, Morrison v., 222–​23 National Foreign Trade Council, Crosby v., 267 Negotiable Instruments Act, 35 Nereide, The, 205 Brown v. United States and, 85, 87 Constitution and, 85, 87–​89, 112 law maritime and, 132 law of nations and, 52n38, 82n27, 106, 146n21, 161–​63, 205 law of state-​state relations and, 89–​91, 106, 132, 162, 217, 218 overview, 87–​90, 110, 162–​63, 201–​2, 217–​18

  283

Index The Paquete Habana and, 91, 106, 161–​62, 165, 218 Sabbatino and, 106, 110, 162, 165 Neuman, Gerald L., 153, 166 Neutrality Proclamation of 1793, 66, 157–​59, 160n43, 205 New York, Lochner v., 38n77, 129, 131n76 New York Life Insurance Co. v. Hendren, 176–​77 Non-​Intercourse Act of 1800, 83–​84, 216–​17, 235, 237 Nuremberg Trials, 142–​43, 155n26 Offences Clause, xix, 50, 65–​67, 115 official acts immunity, 197n16. See also foreign sovereign immunity Oliver American Trading Co. v. Mexico, 179–​80 Paquete Habana, The, 153, 165 Congress’s powers and, 240 law of state-​state relations and, 91–​93, 106, 164, 218 The Nereide and, 91, 106, 161–​62, 165, 218 overview, 91–​94, 163–​64, 218, 240 President’s powers and, 240 Sabbatino and, 161–​62, 220 Sosa v. Alvarez-​Machain and, 186n145 war and, 240 Parliament of the United Kingdom, 3, 7, 14, 22, 23, 117 Paust, Jordan J., 156n29, 233n59, 234n62 perfect right(s) American states’ violations of, 48 Charming Betsy and, 84, 85n37, 223, 236 Constitution and, 58 definition and nature of, xviii, 7, 47–​48 Emmerich de Vattel on, 45–​48 England and, 8 examples of, 7–​8, 45

283

vs. imperfect rights, 47–​48 law of state-​state relations and, xviii, 8, 57–​58, 60, 84, 139, 146, 223, 236 neutral rights and, 84 neutral use of high seas as a, 47, 87 violation of as just cause for war, xviii, 8, 45, 47, 48, 58, 60–​61, 68, 104n112, 146 violation of a treaty as a, 68 Peters, United States v., 76–​79, 140n1, 200, 205n48, 216 Constitution and, 76, 78, 79, 110, 112 customary international law and, 202 law of state-​state relations and, 76–​78, 91, 107, 132, 200, 216, 218 overview, 76–​79, 216 Peterson, Bank Markazi v., 210–​11 Pink, United States v., 98, 100–​101, 104, 108, 171, 173–​76, 180–​82, 195n2, 254n27, 266 piracy, 66, 115, 184 Prakash, Saikrishna B., 59n70, 60–​61, 242n105 President, U.S. See also specific topics act of state doctrine and, 111, 208n63 powers of Article I and, 19–​20, 169 Article II and, xx, 15, 53–​55, 59–​60, 60n74, 169, 229, 234 law of state-​state relations and, xx. See also law of state-​state relations presumption against extraterritoriality, 185, 221–​25 privateers, 66, 69, 158, 159. See also Brown v. United States; Nereide captures and, 69, 85–​86, 162, 201, 217–​18 prize, law of, xviii, 8, 17 prize cases, xxii, 17, 69, 74, 87, 90, 94, 107, 113, 114, 172n81. See also Peters Article III and, 140, 171–​72

284

284

Index

Prize Cases, 240n93 prize courts, 17, 69, 94, 113–​14, 122, 216 prize determinations, 64, 77–​79, 133, 216 prizes, 240. See also under France admiralty and, 117–​18, 122, 140, 163, 171 Article I and, 63–​64 captures and, 8, 17, 69, 77–​79, 92, 93, 122, 240 Congress and, 115, 147 Constitution and, 64, 115, 133, 216 and just cause for war, 77, 78, 114 law maritime and, 117, 140, 147 law of nations and, 94, 161 legality of, 76 Spanish-​American War and, 91–​93, 163, 218, 240 Supreme Court and, 91–​94, 133, 218 Process Act of 1789, xxii, 26–​27, 123, 161n49, 184n131 Process Act of 1792, xxii, 26–​27, 28n28, 123, 161n49 Quasi-​War with France, 83, 85n38, 94n65, 186, 205–​6, 236–​37 Ramsey, Michael D., xiv, xv, 5n4, 39n79, 60n70, 63n81, 74n1, 90n54, 100n91, 129n68, 159n42, 181, 242n105, 265n65 Randolph, Edmund, xvii, 12 ratione materiae, 198 ratione personae, 198 reciprocal rights and obligations, 1, 7, 44–​45 reciprocity of treatment, 110 recognition, diplomatic. See also Nereide; Peters; Sabbatino; Schooner Charming Betsy; Zivotofsky v. Kerry; specific countries act of state doctrine and, 97–​101, 104, 105, 108–​9, 164, 173–​75, 182n124, 203, 221, 224, 227–​28, 254 captures and, 64–​65 Carlos Vázquez on, 226, 228, 229, 258, 267–​68 Congress’s power of, 55, 187

Constitution and, xxi–​xxiv, 15, 41–​43, 51, 53, 55, 57, 71, 88, 89, 96, 99–​100, 104, 105, 108, 109, 111, 114, 132, 140, 146, 162, 170–​71, 173, 175, 176, 180, 182, 187, 193, 197, 198, 213–​15, 219–​21, 225, 227–​30, 235, 245–​46, 253–​55, 257–​58, 267–​69, 271 customary international law and, 105, 165, 175, 193, 194, 199, 202–​4, 214, 215, 220, 223, 225, 226, 228, 231, 246, 257–​59, 262, 271 English Crown and, 8, 54 Erie and, 255 immunity and, 194–​95, 198, 227–​28, 230, 254, 255 and judicial respect for the rights of recognized foreign nations, 53, 54, 73, 75, 94, 96 law of state-​state relations and, 57, 65–​66, 71, 83–​85, 87, 96, 101, 106, 109, 112, 132, 139, 140, 146, 161, 162, 164–​66, 169, 170, 175, 176, 187, 193–​95, 197, 199, 209, 214–​16, 218–​20, 225, 226, 232–​33, 235, 246, 253–​55, 257–​58, 269–​71 meaning and nature of, 51, 54–​57, 99–​100, 104, 195, 214–​16, 219, 224–​31, 246, 258–​59, 271 President’s power of, 55–​56, 98–​101, 169, 173, 174, 187, 197n16, 230–​31, 243, 259 presumption against extraterritoriality and, 223–​25 sought by United States, 48, 49 Supreme Court and, 56, 90, 91, 99–​102, 106, 109, 112, 132, 156, 161, 171, 173–​75, 180, 182, 197, 199, 218–​19, 225–​27, 230, 235, 243, 253, 258, 262, 270 of United States by other countries, 48–​49, 76, 78, 83n32, 247 recognizing foreign nations. See ambassadors: sending and receiving; treaties

  285

Index reprisals, 52, 61, 62, 79. See also letters of marque and reprisal issuing/​authorizing, 269. See also Nereide Congress, 63, 65, 87 Constitution and, xxi, 41–​43, 50, 52, 63, 71, 74, 75, 81–​82, 88, 89, 91, 104, 109–​10, 112, 115, 146, 158, 169, 171n75, 175, 187, 194, 195, 199–​ 200, 204, 211, 245, 257, 268, 269 Emmerich de Vattel on, 61, 62 law of state-​state relations and, 89, 146 prize determinations and, 78–​79 Supreme Court and, 81–​82, 175 William Blackstone on, 62 leading to war, 62–​63, 79 unauthorized, 62–​63 Respublica v. De Longchamps, 11 Restatement (Third) of the Foreign Relations Law of the United States, 65n89, 151, 197n16, 227n38 retaliation, law of, 51–​52 retorsion (retortion) law of, 52, 216 policy of, 52, 87–​88 power to make, 109–​10 revisionist position (status of international law in U.S. courts), xiv, 167–​68 Article III and, 171, 180 Caroline affair and, 180 Constitution and, xxviii–​xxix, 149–​50, 167–​72, 176 definition and overview, xiv, xxviii, 136, 149, 167–​69 Erie and, 153, 168, 170 flaws in and criticisms of, 149–​50, 153, 168–​73, 176, 181 immunity of government officials and, 168, 182, 197, 198 judicial federalism and, 168 law merchant and, 169–​70 law of state-​state relations and, xxviii–​xxix, 168–​70, 172, 176

285

Sosa v. Alvarez-​Machain and, 183, 186–​87 Supreme Court and, 175, 176, 180. See also revisionists, cases cited by revisionists, cases cited by, 176–​80 Revolutionary War. See War of Independence Richard II of England, statutes of, 118, 121, 125 Robbins, Chicago v., 34 Royal Dutch Petroleum Co., Kiobel v., 185, 224–​25 “rules of decision” vs. “forms of proceeding,” 27n27 Russia. See Soviet Union Sabbatino, Banco Nacional de Cuba v., 101n99, 153–​54, 202–​5, 219–​22, 253, 254 act of state doctrine and, 101n99, 101–​11, 151–​52, 154–​56, 164–​65, 174–​75, 203, 204, 207–​8, 219–​21, 254 Article III and, 180 Congress and, 203, 207, 222 Constitution and, 103–​5, 107–​12, 151, 155, 165, 174, 180, 203–​5, 221, 222, 254 Erie and, 103, 152, 155, 174, 254 law of state-​state relations and, 104–​9, 112, 155–​56, 165, 176, 180, 202, 220, 255n32 Louis Henkin on, 152, 154 The Nereide and, 106, 110, 162, 165 overview, 102–​12, 174, 202–​3 The Paquete Habana and, 161–​62, 220 Philip Jessup and, 151, 153n12, 155, 156 Sabbatino Court and separation of powers, 103, 107, 108, 111–​12, 154–​55, 164–​65, 203, 204, 221 Samantar v. Yousuf, 175, 176, 196, 197n16, 198, 255 savings clause, 123, 124n38 Sawyer, Youngstown Sheet & Tube Co. v., 242 Schooner Adeline, The, 236 Schooner Charming Betsy, Murray v. The, 83–​85, 186n144, 216–​18, 223, 235, 236

286

286

Index

Schooner Exchange v. McFaddon, 79–​83, 85, 110, 112, 140n2, 195, 200–​201 John Marshall and, 81–​83, 195, 200–​201 sea, law of the. See law maritime Senate, U.S. and appointment of ambassadors, xx, 15, 53–​56 Constitution and, xx, 15, 53, 54, 229, 249, 250, 259 lawmaking and, 229, 231n54 and the President’s power, xx, 15, 53–​56 treaties and, 15, 54, 249, 250, 259, 261, 263 veto power, 56, 229–​30, 250 separation of powers, 90, 167, 252, 267n73 act of state doctrine and, 107, 111–​12, 154–​55, 165, 203, 221, 254 constitutional, xii, 4, 84, 91, 103, 108, 154–​55, 165, 170, 203, 210, 215, 221, 253, 259 law of state-​state relations and, 170 Sabbatino Court and, 103, 107, 108, 111–​12, 154–​55, 164–​65, 203, 204, 221 Serra v. Lappin, 262n57 slavery, 142 Sosa v. Alvarez-​Machain, 29n36, 183–​87, 252 revisionist position and, 183, 186–​87 Southern Pacific Co. v. Jensen, 29n36, 38n77, 115, 116, 128–​34 sovereign immunity, 179–​80, 209, 214, 227. See also foreign sovereign immunity; immunity law of state-​state relations and, 214 sovereign states defined, 4 interactions between. See law of state-​ state relations sovereignty and territory, 10, 46–​48, 56n55, 57–​58, 97, 99, 105, 107, 109, 156, 173, 204, 219–​22 Soviet Union, 98. See also Belmont U.S. recognition of, 98–​101, 173, 174, 182n124

Spain. See also Nereide; Paquete Habana U.S. recognition of, 89, 94 Spanish-​American War captures during, 218, 240. See also Paquete Habana prizes and, 91–​93, 163, 218, 240 State Department and foreign sovereign immunity, 195–​96, 197nn15–​16 state immunity. See foreign sovereign immunity state law, local. See also Erie Railroad Co. v. Tompkins federal courts forbidden from applying general law to disputes subject to, 21 state-​state relations. See law of state-​ state relations Steam-​Boat Thomas Jefferson, The, 126–​27 Stentor Electric Manufacturing Co., Klaxon Co. v., 39n79 Stephens, Beth, xiv, 65n89, 150n1, 156n29 Story, Joseph, 69, 185, 225, 236n73, 239n92 admiralty jurisdiction and, 113, 117–​18, 119n21, 124–​27 on Article III, 125–​26 on commercial law, 31, 32 DeLovio v. Boit and, 124–​26 Halsey v. Fairbanks and, 29 Swift v. Tyson and, 30, 31 Widgery v. Haskell and, 29 Supremacy Clause (U.S. Constitution), 37, 153n12, 230, 246, 250, 251, 260, 263 Supreme Court. See Marshall Court; specific topics “supreme law of the land,” 14, 167, 263. See also under law of nations; Supremacy Clause common law as, 213 Constitution and, 4, 37, 167, 213, 229, 249, 250, 272

  287

Index modern customary international law as, 268 revisionist position and, 167 Senate and, 250 treaties as, 37, 54 Swift doctrine, 21, 28, 29, 33–​34 act of state doctrine and, 104 diversity jurisdiction and, 20–​21, 27, 36, 94 Erie and, 21, 36, 38, 94, 104, 129n65, 130, 131, 251 general law and, xxv, 21, 33–​34, 36, 38, 94, 116 law merchant and, xxvii, 36 law of state-​state relations and, 94 vs. Swift decision, 29–​30 Swift v. Tyson, 27 Constitution and, 33, 39 diversity jurisdiction and, 20–​21 Erie and, 37n69, 38, 39, 96 general law and, xxv, 29–​36, 181 Joseph Story on, 30 law merchant and, xxv, 20, 31–​33, 145n20 overview, 30–​33 vs. Swift doctrine, 29–​30. See also Swift doctrine terrorism, state-​sponsored and abrogation of immunity, 209–​10 Terrorism Risk Insurance Act of 2002 (TRIA), 210nn76–​77 tidewater doctrine, 115, 119, 126–​27 Tompkins, Erie Railroad Co. v. See Erie Railroad Co. v. Tompkins tort law. See also Alien Tort Statute; Erie Railroad Co. v. Tompkins admiralty and maritime jurisdiction and, 113, 117–​21, 125–​27 common law courts and, 119–​21 Congress and, 96, 115 Constitution and, 38, 39, 70, 96, 115, 126 in England, 117–​21 general law and, 34, 39, 94–​96 local state, 34, 36–​38, 94–​96, 115, 251 Supreme Court and, 37, 115

287

Torture Victim Protection Act of 1991 (TVPA), 208–​9 treaties Article I and, 42, 50, 51 Article II and, xx, 15, 50, 51, 54, 229, 249 Definitive Treaty of Peace Between the United States of America and His Britannic Majesty (1783), xvi–​xvii, 11, 12, 42, 49, 68, 70, 106n120, 247 as supreme law of the land, 37, 54 violations of, xvii, 11, 68, 70 Trimble, Phillip R., xiv, 167–​68 Tyson, Swift v. See Swift v. Tyson Uniform Negotiable Instruments Act, 35 United Nations (UN), 143, 155n26 United States, early history of, 9–​12. See also American Revolution United States v. See opposing party’s name Universal Declaration of Human Rights, 143 van Berckel, Pieter Johan, 49 Vattel, Emmerich de, 5, 51, 61, 62, 97, 102n102, 221 The Law of Nations, 3–​5, 44–​45, 51 on law of retaliation, 51 law of state-​state relations and, 4, 85n37 on a nation’s right to preserve itself, 46 on perfect rights, 45–​48 on resolution of disputes, 51, 52n41 right of embassy and, 45 on sovereign states, 4 Vázquez, Carlos Manuel, 176n94, 177n100, 226, 228, 229, 258, 263–​64, 264n61, 265n65, 267–​68 on recognition, 226, 228, 229, 258, 267–​68 vice-​admiralty courts, 120–​21, 125

288

288

Index

Vienna Convention on Diplomatic Relations, 95n69, 194 Virginia Plan, 122 war. See also Constitution, U.S.; French warships; just cause for war; law of state-​state relations; specific wars captures and, 64–​65, 92–​93 Congress’s power to declare, xix, 15, 58, 60, 61, 87, 115 initiating Article I and, 15, 42, 50, 58, 59, 61, 64 Article II and, 50, 59–​60 reprisals leading to, 62–​63, 79 war crimes trials, 142–​43, 155n26 War of 1812, 85–​87, 162, 211n81, 217, 238 War of Independence, xvi, 11, 48 Washington, Bushrod, 133

Washington, George, 76, 157, 159 Neutrality Proclamation of 1793, 66, 157–​59, 160n43, 205 Webster, Daniel, 180–​81 Wechsler, Herbert, 88n52, 248–​49 White, Byron, 156n28 Widgery v. Haskell, 29 Wilson, James, 158–​60 World War II. See Nuremberg Trials Yard, James, 77–​79, 216 Young, Ernest A., xiv, 131n77, 181–​82 Youngstown Sheet & Tube Co. v. Sawyer, 242 Yousuf, Samantar v., 175, 176, 196, 197n16, 198, 255 Zivotofsky v. Kerry, 56n52, 108, 227–​28, 230, 231, 243n115, 258 Zschernig v. Miller, 265–​68