Brigham Young University (BYU) law professor David H. Moore gave a lecture focused on the relationship between international law and its domestic enforcement in the United States at the Eck Hall of Law on Thursday, sponsored by the Federalist Society for Law and Public Policy.
Moore said there is a fundamental conflict between two concepts: the effectiveness of international law and the integrity of proper domestic governance.
“In my opinion, the Supreme Court is trying to accommodate both concerns in their decisions,” Moore said.
According to Moore, the primary sources of international law are treaties, which are formal legal agreements between nations, and customary international law, which consists of non-binding conventions that countries traditionally follow. Illustrating this distinction with an example, Moore said diplomatic immunity existed as a informal mutual agreement between countries before it was codified into law with formal treaties.
Moore then explained the principle of self-execution. International law that is ratified by the U.S. must include a provision that specifies in what way it should be enforced to fulfill the standard of self-execution. Otherwise, Moore said, international law cannot be enforced in the U.S., absent of authorization from a branch of government.
“However, a broad notion of non-self-execution violates the Supremacy Clause [of the Constitution],” Moore said. "This is because the Supremacy Clause states that formally ratified treaties must be treated as the law of the land."
Moore said the case of Medellin v. Texas demonstrates the principle of non-self-execution. Medellin, a convicted Mexican national on death row, appealed his conviction because Texas legal authorities failed to allow him to contact the Mexican consulate in accordance with the Vienna Convention on Consular Relations. The Supreme Court sided with Texas and decided that international treaties are not applicable to domestic law unless Congress implements an enforcement statute or the treaties include self-executing provisions.
“There are two basic views on relationship between customary international law and federal common law,” Moore said.
The modern position believes international law can be enforced to a large extent by the courts while the revisionist camp argues it can only be enforced as authorized by Congress or the executive branch.
Moore referenced the case of Sosa v. Alvarez-Machain to show how the Supreme Court interprets these two views. The case involved a suspected cartel member who had been abducted to face murder charges by the U.S. Drug Enforcement Agency. The court held that an abducted foreign national could face prosecution, but the act of kidnapping itself might be a violation of international law and thus provide grounds for civil litigation under the Alien Tort Statute.
“Most scholars see the court’s decision as a victory for the modern view, but I think they confuse two questions: whether Alien Tort Statute creates a cause of action and whether customary international law is federal common law in the absence of political branch intent,” Moore said.
In fact, Moore said the court’s analysis actually endorses the revisionist position with its focus on Congressional intent and concern with separation of powers.
“Academic commentary is out of step,” Moore said. “Incorporation [of international law] through the political branches is the appropriate direction.”
