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Chapter 3 International Law & Municipal Law

Chapter 3 International Law & Municipal Law

Chapter Three International Law and Municipal Law Topics: 1. What is Dualism (二元论) and Monism (一元论)? 2. Treaties in Municipal Law 3. What are self-executing (自动执行)and non-self-executing treaties? 4. How to solve the conflict between a treaty and a statute in the US? 5. Customary International Law in Municipal Law Reading Materials: Mark W. Janis, An Introduction to International Law, pp. 85-112 CHAPTER 4 International Law and Municipal Law International law often has a part to play on the national stage. In fact, most times when international legal rules are applied by judges, the setting is a domestic, not an international, court. Similarly, when lawyers deal with international legal problems, they usually find themselves engaged in some sort of a municipal legal proceeding or negotiation. So, as our attention turns from international legal rules to international legal process (国际法律程序), it makes sense to begin with the ways in which international law is employed in national legal systems. A. DUALISM AND MONISM The prevalent (流行的) theoretical approach to the relationship between international and municipal law is called "dualist." It views any national or international legal system as a separate and discrete (不联系的) entity, each with its own power to settle the effect of any outside rule of law might have within it. Thus, international law is generally not thought to be able to make itself effective in a domestic legal order; this depends on the constitutional rules of the municipal system itself. Conversely, municipal law is thought incapable of imposing itself on the international legal system. A state ordinarily may not rely on its own domestic law as a ground for repudiating (拒绝接受) an international legal obligation. As the Permanent Court of International Justice (PCIJ, 常设国际法 院) explained in the Greco-Bulgarian Communities case (希腊—保加利亚社区案)*: "It is a generally accepted principle of international law that in the relations between Powers who are contracting Parties to a treaty, the provisions of municipal law cannot prevail over those of the treaty.''1 As we have seen above, a similar rule is found in the Vienna Convention** (维也纳条约 法公约) ***. Thus, it is entirely possible for an obligation to be legally binding in international
The English text of the PCIJ’s advisory opinion in the Greco-Bulgarian “Communities” case is available online at http://www.worldcourts.com/pcij/eng/decisions/1930.07.31_greco_bulgarian/. – Editor’s note. 1 1930 P.C.I.J. Reports, ser. B, no. 17, at 32. ** Article 27 (Internal law and observance of treaties) of the Vienna Convention provides: A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. – Editor’s note. 1

law and have effect in the international legal system, for example, before an international court or in international relations generally, but have no legal force in one or another municipal legal system, for example, before a domestic court, because of some obstacle posed by municipal law. Another theoretical approach to the relationship between international and national law is called "monist" because it views the international legal order and all national legal orders as component parts of a single "universal legal order" in which international law has a certain supremacy (最高 权威).3 Whatever the logical attractions of monism, it is not usually as reliable a guide to practice as dualism. Most states and most courts, including those in the United States, presumptively view national and international legal systems as discrete entities and routinely discuss in a dualist fashion the incorporation (并入) of rules from one system to the other. B. TREATIES IN MUNICIPAL LAW It is to the relationship between treaties and national law that we first turn. This is, by far, the sort of international law most often seen in domestic practice. What is dealt with below is largely municipal law about the incorporation of international law; pertinent U.S. rules are introduced, along with a few from other countries. 1. Treaties in U.S. Law

The U.S. Constitution mentions treaties several times and in somewhat different ways. In Article II(2), the President of the United States is granted the "Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two-thirds of the Senators present concur (同意)." Article III(2) extends the judicial power of the United States "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." Article VI(2) instructs that the "Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." Finally, the Constitution explicitly restricts the states of the Union in Article I(10): “No State shall enter into any Treaty, Alliance, or Confederation (邦联).” *** Amplifying these explicit constitutional provisions are more than two centuries of judicial practice, practice which by now provides many more constitutional rules than does the Constitution itself. Chief among them is the judge-made doctrine of self-executing treaties, itself a significant contribution made by the United States to international law. The doctrine, though not the term itself, emerged in 1829 in the judgment of Chief Justice (首席大法官) John Marshall in Foster & Elam v. Neilson.4 Foster & Elam sought to determine the rightful owner of land in territory that had been known as West Florida (西佛罗里达) and then became part of the state of Louisiana (路易斯安娜) east of
3 4

See H. Kelsen, Principles of International Law 553-588 (2d ed. Tucker 1966). 27 U.S. (2 Pet.) 253 (1829). 2

New Orleans (新奥尔良). Between 1800 and 1821, the territory was transferred back and forth between Spain and France and eventually to the United States, but the relevant treaties among the three countries were ambiguous, and there was some doubt as to which sovereign state possessed West Florida at any given moment in that period. What was indisputable was that after the ratification in 1821 of an 1819 treaty of amity (友好条约) between Spain and the United States, West Florida belonged to the latter. The 1819 Spanish-American treaty provided, inter alia (特别), that "all the grants of land made before the 24th of January 1818 by [the King of Spain] in the said territories ceded by his majesty to the United States, shall be ratified and confirmed to the persons in possession of the lands, to the same extent that the same grants would be valid if the territories had remained under the dominion (统治, 管辖) of his catholic (天主教) majesty.'' Plaintiffs (原告) in Foster & Elam claimed land under a grant made by the Spanish King in 1804. Defendants (被 告) alleged that the plaintiffs' grant was void because by 1804 the land had already been ceded by Spain to France. Rather than determine who rightfully possessed the territory in 1804, the Supreme Court asked this question: Could plaintiffs in any circumstances rely on the 1819 Spanish-American treaty's confirmation of Spanish grants? Chief Justice Marshall wrote: A treaty is in its nature a contract between two nations, not a legislative act. It does not generally effect, of itself, the object to be accomplished, especially so far as its operation is infra-territorial; but is carried into execution by the sovereign power of the respective parties to the instrument. In the United States a different principle is established. Our constitution declares a treaty to be the law of the land [by the supremacy clause (至上条款) of Article VI]. It is, consequently, to be regarded in courts of justice as equivalent to an act of the legislature, whenever it operates of itself without the aid of any legislative provision. But when the terms of the stipulation import (构成) a contract, when either of the parties engages to perform a particular act, the treaty addresses itself to the political, not the judicial department; and the legislature must execute the contract before it can become a rule for the Court. Thus, Foster & Elam held that a legal rule drawn from a treaty may be applied in a case by the U.S. courts without any legislative act so long as its provisions are interpreted as being aimed directly at the courts and not at the Congress requiring legislative action. However, in Foster & Elam itself, the Supreme Court (美国最高法院) read the specific provision of the 1819 treaty as aimed at the lawmakers: The article under consideration does not declare that all the grants made by his catholic majesty before the 24th of January 1818, shall be valid to the same extent as if the ceded territories had remained under his dominion. It does not say that those grants are hereby confirmed. Had such been its language, it would have acted directly on the subject, and would have repealed those acts of congress which were repugnant (不一致的,矛盾的) to it; but its language is that those grants shall be ratified and confirmed to the persons in possession, etc. By whom shall they be ratified and confirmed? This seems to be the language of contract; and


if it is, the ratification and confirmation which are promised must be the act of the legislature. Interestingly, in the Percheman case a few years later, Marshall, seeing the Spanish-language version of the treaty, held that the self-same article was self-executing,8 as good an example as any of the interpretative discretion of the courts ***. Since Marshall's decisions in Foster & Elam and Percheman, U.S. judges have generally recognized the distinction between self-executing and non-self-executing treaties. Self-executing treaty provisions are, because of the supremacy clause of Article VI, also binding upon each of the several states of the United States. Whether a part of a treaty is self-executing and thus, in a case of conflict, invalidates state law must be determined on a case-by-case basis. In Asakura v. Seattle,* for example, the U.S. Supreme Court had before it a complaint by a Japanese national residing in the United States that a Seattle (西雅图) city ordinance (法令、条例) prohibiting the issuance of pawnbroker licenses (典当执照) to aliens violated a 1911 friendship, commerce, and navigation treaty (友好通商航海条约) between the United States and Japan. The relevant treaty language read: "The citizens or subjects of each of the High Contracting Parties (缔 约国) shall have liberty to enter, travel and reside in the territories of the other to carry on trade...upon the same terms as native citizens or subjects.'' The Court decided that the 1911 treaty operated "of itself without the aid of any legislation, state or national; and it will be applied and given authoritative effect by the courts." Finding that the business of a pawnbroker was "trade" within the definition of the treaty, the Court ruled that the city ordinance violated the treaty. On the other hand, in Sei Fujii v. State of California (加利福尼亚州),** where plaintiff argued that the United Nations Charter invalidated a state law barring certain aliens from owning land, the California Supreme Court held, first, that the Charter's Preamble (序言) and Article 1 were not self-executing because "[t]hey state general purposes and objectives of the United Nations Organization and do not purport to impose legal obligations on the individual member nations or to create rights in private persons.'' The court then held: It is equally clear that none of the other provisions relied on by plaintiff is self-executing. Article 55 declares that the United Nations "shall promote . . . universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion," and in Article 56, the member nations "pledge themselves to take joint and separate action in cooperation with the Organization for the achievement of the purposes set forth in Article 55." Although the member nations have obligated themselves to cooperate with the international organization in promoting respect for, and observance of, human rights, it is plain that it was contemplated that future legislative action by the several nations would be required to accomplish the declared objectives, and there is nothing to indicate that these provisions were intended to become rules of law for the courts of this country upon the ratification of the charter. The supremacy of legislatively executed or self-executed treaty provisions as against state law has
8 *

United States v. Percheman, 32 U.S. (7 Pet.) 51 (1833). 265 US 332 (1924). – Editor’s note. ** 242 P.2d 617 (1952), 19 I.L.R. 312 (1952). – Editor’s note. 4

long been upheld by the U.S. courts. As early as 1795, the Supreme Court held that "[a] treaty cannot be the supreme law of the land, that is of all the United States, if any act of a State Legislature can stand in its way.''15 In Missouri v. Holland,16 the Court hinted that it sometimes might even be constitutionally possible for Congress to enact laws pursuant to international agreements which would otherwise infringe upon the residual (剩余的) sovereign power of the states. In the Missouri case, federal district courts had struck down earlier federal laws regulating migratory birds (候鸟) because these U.S. statutes were held to be unconstitutional infringements upon the residual rights left to the states by the Tenth Amendment (宪法第十修正案).* The President then negotiated a treaty with Canada (加拿大) providing for similar migratory bird regulation. The Canadian-American treaty went to the Senate (参议院), which gave its advice and consent, the President ratified the international agreement, and Congress enacted implementing legislation. The Supreme Court upheld the constitutionality (合宪性) of the new federal law. In the words of Justice Holmes (霍姆斯大法官): We do not mean to imply that there are no qualifications to the treaty-making power; but they must be ascertained in a different way. It is obvious that there may be matters of the sharpest exigency (紧急状态) for the national well being that an act of Congress could not deal with but that a treaty followed by such an act could .... Here the treaty and the implementing legislation concerned "a national interest of very nearly the first magnitude,'' which could "be protected only by national action in concert with that of another power.'' Of course, no treaty provision will be applied by a U.S. court if found to be in direct contravention (违反) of the U.S. Constitution. As the Supreme Court held in Reid v. Covert, "no agreement with a foreign nation can confer power on the Congress, or on any other branch of Government, which is free from the restraints of the Constitution.''20 Moreover, treaties have no absolute supremacy vis-à-vis federal statutes. Rather, between treaty law and federal statutory law there is thought to be (人们认为) a virtual equivalence. In the Head Money Cases, the Supreme Court held that "so far as a treaty made by the United States with any foreign nation can become the subject of judicial cognizance (司法认定) in the courts of this country, it is subject to such acts as Congress may pass for its enforcement, modification, or repeal.'' Faced in practice with apparently conflicting treaties and statutes, U.S. courts first attempt to reconcile their clashing provisions. If no such reconciliation (调和) is possible, then the rule is that the treaty or federal statutory law later in time controls. An often-cited statement of this principle was given in the Whitney case: By the Constitution a treaty is placed on the same footing, and made of (对待) like obligation, with an act of legislation. Both are declared by that instrument to be the supreme law of the
15 16

Ware v. Hylton, 3 U.S. (3 Dallas) 199, 236 (1795). 252 U.S. 416 (1920). * The Tenth Amendment states: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. – Editor’s note. 20 354 U.S. 1, 16 (1957). 5

land, and no superior efficacy (效力) is given to either over the other. When the two relate to the same subject, the courts will always endeavor to construe them so as to give effect to both, if that can be done without violating the language of either; but if the two are inconsistent, the one last in date will control the other, provided always the stipulation of the treaty on the subject is self-executing.22 As noted above, a nation may not usually interpose (提出) in international law its own law as a justification for failing to comply with an otherwise legally binding treaty obligation. Accordingly, in the case of a subsequent and conflicting act of Congress, though a treaty provision might no longer have force in the U.S. courts, it may still be legally binding in the international legal system, a difficulty in the opinion of the Whitney court best left to the concern of the executive and legislative branches of government. In any case, there is "a firm and obviously sound canon of construction (解释原则) against finding implicit repeal of a treaty in ambiguous congressional action.... Legislative silence is not sufficient to abrogate (取消) a treaty.''24 Similarly, where both Congress and the President agree that a treaty is still in force, the courts, "because of the deference [they] owe to the political branches of the government in treaty matters," will ordinarily not challenge a treaty's validity or enforceability.25 The Head Money and Whitney cases involved treaties modified by later acts of Congress, but, as the statement of principle in Whitney makes clear, treaties may also supersede earlier federal laws. In the Cook case, for example, the Treaty of May 22, 1924, with Great Britain was held to supersede, "so far as inconsistent with the terms of the Act [of 1922], the authority which had been conferred by section 581 upon officers of the Coast Guard (海岸警卫队) to board, search and seize beyond our territorial waters." Thus, the Court held that the United States could not lawfully seize a ship of British registry beyond the limits set forth in an agreement concluded with the United Kingdom.26 Faced with a decision of whether to reconcile conflicting treaty rules and statutes or to accord one or another precedence, courts sometimes opt for reconciliation, but perhaps beyond plausible grounds. In the Palestine Liberation Organization (PLO) (巴勒斯坦解放组织) case, a federal district court heard a suit brought by the U.S. Justice Department (司法部), seeking to close the PLO's U.N. observer mission (观察员使团) in New York.27 This seemed to be the intent of the Anti-terrorism Act (反恐法) of 1987, albeit the closure would probably violate the international obligations of the United States under its treaty as a host country for the United Nations. The federal court, noting that "statutes and treaties are both the supreme law of the land" and that "the Constitution sets forth no order of precedence to differentiate between them," concluded that the text and legislative history of the Anti-terrorism Act failed "to disclose any clear legislative intent that Congress was directing the Attorney General (总检察长), the State Department (国务院) or this Court to act in contravention of the Headquarters Agreement (总部协议).'' There seemed to be "unanimous belief" in the Justice Department that the PLO decision should have been appealed,
22 24

Whitney v. Robertson, 124 U.S. 190, 194 (1888). Trans World Airlines v. Franklin Mint Corp., 466 U.S. 243, 252 (1984). 25 New York Chinese TV Programs v. U.E. Enterprises, 954 F. 2d 847, 852-854 (2d Cir. 1992). 26 Cook v. United States, 288 U.S. 102, 118-119, 120-122 (1933). 27 U.S.v. Palestine Liberation Organization, 695 F. Supp. 1456 (S.D.N.Y. 1988). 6

but the State Department felt that it would have been "a grave mistake" to close the PLO office.29 The interagency dispute was settled by President Reagan who, citing "foreign policy considerations," chose not to appeal the district court's judgment.30 England's Professor Rosalyn Higgins, now a judge on the ICJ, has termed the PLO judgment "admirably purpose-oriented but unpersuasive.''31 Even more doubtful was the opinion of Chief Justice Rehnquist (首席大法官伦奎斯特), writing for a 6-3 majority of the Supreme Court, in Alvarez-Machain, where reversing the Ninth Circuit (第九巡回法院), the Court ruled that the kidnapping (劫持) of a Mexican citizen in Mexico (墨西 哥) by agents of the U.S. government was not to be construed as an act covered by the terms of the 1978 U.S.-Mexico Extradition Treaty (引渡条约): "[T]he language of the Treaty, in the context of its history, does not support the proposition that the Treaty prohibits abductions (劫持) outside of its terms.''32 This interpretation was resisted by Justice Stevens, writing for the minority, who cited the language of the Ninth Circuit approvingly: The provisions of the Extradition Treaty "only make sense if they are understood as requiring each treaty signatory (签约国) to comply with those procedures whenever it wishes to obtain jurisdiction over an individual who is located in another treaty nation.'' Justice Stevens predicted that "most courts throughout the civilized world--will be deeply disturbed by the 'monstrous' (荒谬的) decision the Court announces today.'' Indeed, the Mexican government, among others, expressed its outrage (愤怒) with the judgment and demanded the renegotiation of the Extradition Treaty. Professor Henkin (亨金), the President of the American Society of International Law (美国国际法学会), lamented (遗憾) that the majority of the Supreme Court had failed to take "international law seriously.'' Much sounder was the Court's 1999 decision in El Al* Israel Airlines (以色列航空公司), Ltd. v. Tsui Yuan Tseng, where Justice Goldberg, writing for an 8 - 1 majority was careful to give "considerable weight" to the opinion of other parties to the Warsaw Convention [华沙公约,全称“统一国际航空运输若 干规则公约” ,Convention for the Unification of Certain Rules Relating International Carriage by Air] in the interpretation of a treaty provision.37 Treaties that have the benefit of Article VI and the supremacy clause need not necessarily be "treaties" made pursuant to the Constitution's Article II, that is, agreements that have received the two-thirds advice and consent of the Senate. Indeed, most treaties binding the United States are not Article II-type treaties. A study of all the international agreements made by the United States between 1946 and 1972 found that only 6 percent were treaties sent to the Senate for its formal advice and consent; 86.7 percent were so-called statutory agreements ( 制 定 法 协 定 ) or "congressional-executive" agreements (国会—行政协定) where the President acted pursuant to ordinary legislation, that is, statutes passed by a majority of both the House of Representatives and the Senate; and 7.4 percent were "executive agreements(行政协定)," that is, compacts concluded by the President alone without any congressional participation.38
29 30

N.Y. Times, August 28, 1988, at A5. N.Y. Times, August 30, 1988, at Al. 31 R. Higgins, Problems and Process: International Law and How We Use It 215 (1994). 32 U.S. v. Alvarez-Machain, 504 U.S. 655, 666 (1992). * El Al 是希伯来语,意思是去向最高处. — Editor’s note. 37 525 U.S. 155, 175-176 (1999). 38 L. K Johnson, The Making of International Agreements 13 (1984). A more general survey found that only about 10 percent of about 12,000 international agreements entered into by the United States between 1776 and 1986 had 7

A treaty not of the Article II type was at issue in United States v. Belmont where the supremacy as against state law of an agreement concluded by the President with the Soviet Union (苏联) was questioned.39 The United States sought to recover funds deposited with Belmont's bank by a private Russian company later nationalized by the Soviet Union. These funds were included in amounts assigned by the Soviet government to the United States in a U.S.-U.S.S.R. executive agreement to be used to help satisfy outstanding (未了的) claims of private American parties against the Soviet Union. Faced with the objection that the executive agreement had not been submitted to or voted on by the Senate, the Supreme Court held: But an international compact (协定), as this was, is not always a treaty which requires the participation of the Senate. There are many such compacts, of which a protocol, a modus vivendi (临时协定), a postal convention, and agreements like that now under consideration are illustrations .... Plainly, the external powers of the United States are to be exercised without regard to state laws or policies.... And while this rule in respect of treaties is established by the express language of cl. 2, Art. VI, of the Constitution, the same rule would result in the case of all international compacts and agreements from the very fact that complete power over international affairs is in the national government and is not and cannot be subject to any curtailment or interference on the part of the several states. It may even be that a reference to a "treaty" in an act of Congress will be construed to include treaties not of the Article II type. For example, looking at a statute that provided for direct appeal to the Supreme Court in cases concerning "treaties," the Supreme Court held that a commercial agreement between the United States and France, "[i]f not technically a treaty requiring ratification, nevertheless . . . was a compact authorized by the Congress of the United States, negotiated and proclaimed under the authority of its President'' and thus "a treaty under the Circuit Court of Appeals Act (巡回上诉法院法).''41* The power of the President or of the President and Congress to make international agreements outside the boundaries of Article II is a controversial and still-developing area of the law. In United States v. Curtiss-Wright,42 the Supreme Court advanced the thesis that the federal government had special powers in international affairs, powers that might even be extra-constitutional: [T]he investment (授权) of the federal government with the powers of external sovereignty did not depend upon the affirmative grants of the Constitution. The powers to declare and wage war, to conclude peace, to make treaties, to maintain diplomatic relations with other
been ratified after an Article II advise and consent by the Senate. Kennedy, Conditional Approval of Treaties by the U.S. Senate, 19 Loyola Int'l & Comp. L.J. 89, 91 (1996). 39 301 U.S. 324 (1937). 41 Airman v. United States, 224 U.S. 583, 601 (1912). * The full name of the Act is An Act To establish a United States Court of Appeals for the Federal Circuit, to establish a United States Claims Court, and for other purposes. 96 Stat. 25. April 2, 1982. – Editor’s note. 42 299 U.S. 304 (1936). 8

sovereignties, if they had never been mentioned in the Constitution, would have vested in the federal government as necessary concomitants (伴随物) of nationality (独立国地位).... [T]he power to make such international agreements as do not constitute treaties in the constitutional sense . . . which is [not] expressly affirmed by the Constitution, nevertheless exist[s] as inherently inseparable from the conception of nationality. The Curtiss-Wright Court found the grant of such a power "not in the provisions of the Constitution, but in the law of nations.'' Later courts have not adopted such a broad theoretical view of the extra-constitutional international powers of the President or Congress, but they have been ready to accept extraordinary incursions by the President into municipal law when the President is acting pursuant to international agreements, at least when the President acts with the explicit or implicit consent of Congress. The outstanding modern example of such permissible incursions is Dames & Moore v. Regan.45 There the Court unanimously upheld the effectiveness in U.S. law of presidential orders made to fulfill the terms of the U.S.-Iranian agreement settling the hostages crisis. In exchange for the release of the U.S. diplomats held hostage by Iran, the United States ordered the termination of private litigation against Iran in U.S. courts and the release of Iranian assets that had been attached (查封) in the proceedings. Terminated litigation could be recommenced before a specially created international arbitral tribunal in The Hague (海牙), and $1 billion of the released assets was devoted to a fund set aside to satisfy the awards of the arbitrators. The Dames & Moore Court, though careful to narrow its decisions to the facts of the case, held: [W]here, as here, the settlement of claims has been determined to be a necessary incident to the resolution of a major foreign policy dispute between our country and another, and where, as here, we can conclude that Congress acquiesced in the President's action, we are not prepared to say that the President lacks the power to settle such claims. 2. Treaties in the Law of Some Other States

Turning to the constitutional rules of other states concerning the relationship between treaties and their municipal legal systems, we encounter such a considerable variety of specific provisions that, Professor Brownlie laments, "[t]he whole subject resists generalization.''47 Nonetheless, some generalization, however superficial (肤浅), may be useful in highlighting a few of the ways in which the U.S. approach to the incorporation of treaties into municipal law is and is not characteristic of other countries.48 Probably the most significant difference between the constitutional rules of the United States and those of other states, especially those in the common law tradition, has to do with self-executing treaties. Quite simply, most other common law countries deny the very possibility of
45 47

453 U.S. 654 (1981). I. Brownlie, Principles of Public International Law 52 (4th ed. 1990) [hereinafter cited as "Brownlie"]. 48 A useful comparative study of the approaches of several municipal legal systems to a single treaty is to be found in Craven, The Domestic Application of the International Covenant on Economic, Social and Cultural Rights, 40 Neth. Int'l L. Rev. 367 (1993). 9

self-execution; that is, they do not permit treaties to take effect in their municipal legal systems without legislative enactment. Such is the rule, for example, in England, where the Crown (国王) is constitutionally authorized to conclude and ratify international agreements without parliamentary participation, but Parliament alone has power to incorporate treaties into English law, an incorporation accomplished by an enabling act of legislation. In The Parlement Belge (比利时国会号案), when the British government argued that a ratified, but unenacted, treaty between the United Kingdom and Belgium (比利时) shielded a Belgian state-owned mail boat from the jurisdiction of the English courts, Sir Robert Phillimore held that to so find an immunity would be "a use of the treaty-making prerogative (特权) of the Crown which I believe to be without precedent, and in principle contrary to the laws of the constitution," and if Belgium should feel wronged because the protection afforded by the treaty was not provided, then that should be settled by "proper measures of compensation and arrangement, between the Governments of Great Britain and Belgium.''50 The traditional English rule against self-execution of treaties still holds sway (支配). As Jennings and Watts put it, "[w]here a treaty affects private rights or, generally, requires for the implementation of its obligations a modification of existing law, the necessary changes in the law must be the subject of action by or under the authority of an Act of Parliament before an English court can give effect to the changes in the law called for by the treaty.''51 As recently as 1989, the House of Lords (上议院) reaffirmed the rule against the self-execution of treaties in English law. Writing in a unanimous decision in International Tin (国际锡理事会案), Lord Oliver held: [A]s a matter of the constitutional law of the United Kingdom, the Royal Prerogative (皇家特 权), whilst it embraces the making of treaties, does not extend to altering the law or conferring rights upon individuals or depriving individuals of rights which they enjoy in domestic law without the intervention of Parliament. Treaties, as it is sometimes expressed, are not self-executing. Quite simply, a treaty is not part of English law unless and until it has been incorporated into the law by legislation. The English rule obtains (得到公认) in most countries that were once part of the British Empire, including Canada, where perhaps the best known general statement of the principle is to be found in the opinion of Lord Atkin in Attorney-General for Canada v. Attorney-General for Ontario (安 大略): Within the British Empire there is a well-established rule that the making of a treaty is an executive act, while the performance of its obligations, if they entail alteration of the existing domestic law, requires legislative action.... Once [treaties] are created, while they bind the state as against the other contracting parties, Parliament may refuse to perform them and so leave the state in default (不履行). *** In countries where the executive can unilaterally conclude and ratify treaties, the potential national
[1878-1879] 4 P.D. 129, 154-155. 1 Oppenheim's International Law: Ninth Edition 58-59 (R. Jennings & A. Watts eds. 1992) [hereinafter cited as "Jennings & Watts"].
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embarrassment of the legislature's refusing to enact a ratified treaty into municipal law is sometimes avoided by the simple expedient of the executive's postponing its ratification of a treaty until the legislature is ready to act. The United Kingdom and other states in the English tradition, for example, all ordinarily delay ratifying treaties until appropriate laws are enacted. Although the doctrine of self-executing treaties is rejected by most common law countries other than the United States, the notion of self-execution is accepted in one form or another by many nations with a civil law tradition. In civil law countries, the authority for the incorporation of treaty rules into municipal law is usually to be found in explicit constitutional provisions. For example, Article 55 of the French Constitution of 1958 reads that "treaties or international agreements regularly ratified or approved have, from the date of their publication, an authority superior to municipal law on the basis of reciprocity by the other state.'' In practice, this means that a treaty has effect in French municipal law when it is embodied in a decree signed by the French president and printed in the Official Journal (官方公报). The doctrine of self-executing or directly applicable treaties in France is, however, much restricted by explicit constitutional limits. The very terms of Article 55 dictate that a ratified treaty has no force in French municipal law if it has not been duly published. Article 55 also imposes a condition of reciprocity; that is, the French courts will not apply a treaty in French municipal law if it is not in force in the municipal law of the other party. Furthermore, there are constitutional limits on the French executive's power to conclude international agreements. Article 52 of the Constitution reads that "[t]he President of the Republic negotiates and ratifies treaties,'' but Article 53 provides that treaties regulating certain subject matters may not be ratified or approved except by statutory enactment. Such parliamentary approval is needed for treaties that modify French municipal law or that affect the financial commitments of the state, as well as for matters of considerable international importance such as treaties of peace, commerce, or concerns relative to international organizations. It may be that the French president has at least some temporary special treaty-making powers under the emergency provisions of Article 16. But another limit on the French executive's freedom to conclude treaties is found in Article 54 of the Constitution, which prohibits the government from ratifying or approving treaties that violate the Constitution unless the Constitution is first amended. *** C. CUSTOMARY INTERNATIONAL LAW IN MUNICIPAL LAW 1. The Law of Nations as Common Law

In common law (普通法) countries like the United States, international law that originates from sources other than treaties is usually considered to be a special form of the common law itself. The rule dates back to a number of cases decided by the English courts in the eighteenth century. Blackstone, in 1769, stated the proposition thus: "the law of nations (wherever any question arises


which is properly the object of its jurisdiction) is here adopted in its full extent by the common law, and is held to be a part of the law of the land. In the United States, the principle that the law of nations is part of the law of the land took hold even before the Constitution was drafted or ratified. In 1784, in Respublica v. De Longchamps,73 the Chief Justice of Pennsylvania (宾西法尼亚) held that an assault on the French consul general (总领事) in Philadelphia was "an infraction (违反) of the law of Nations. This law, in its full extent, is part of the law of this State, and is to be collected from the practice of different Nations, and the authority of writers.'' The classic utterance by the Supreme Court on the topic is that of Mr. Justice Gray in The Paquete Habana: "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.''75 As we saw in our examination of The Paquete Habana above [see Chapter 3.A.2], U.S. courts do not usually treat customary international law, the general principles of law, judicial decisions, and the opinions of publicists as discrete sources of international law as might an international court. Rather, U.S. courts tend to collect together all of the evidences from these diverse sources in hopes of establishing some rule of international common law. In United States v. Smith, Justice Story explained that the law of nations "may be ascertained by consulting the works of jurists, writing professedly on public law; or by the general usage and practice of nations; or by judicial decisions recognising and enforcing that law.''76 Thus, the term international common law is probably most descriptive of the sort of international law, other than treaty law, that is found and applied by common law courts. The eclectic (兼容的) and inclusive (范围广的) nature of the U.S. courts' perception of non-treaty international law is reflected in Filartiga v. Pe?a-Irala.77 There Judge Kaufman of the Second Circuit held that "[h]aving examined the sources from which customary international law is derived--the usage of nations, judicial opinions and the works of jurists-we conclude that official torture is now prohibited by the law of nations.'' The evidence reviewed by the court in specifying the rule included affidavits (书面陈述) of international legal scholars, the United Nations Charter, United States judicial decisions, the Universal Declaration of Human Rights (世界人权宣言), other General Assembly resolutions, the opinions of publicists in law review articles, the European Human Rights Convention ( 欧 洲 人 权 公 约 ) and other regional agreements, constitutional provisions of "over fifty-five" nations, U.S. diplomatic contacts, and a judgment of the European Court of Human Rights (欧洲人权法院). None of these evidences was given any special priority. Such a potpourri (混杂) approach is typical whenever it is argued that international law is a part of the common law. In the Filartiga case, the federal courts turned to international law because a federal statute, the Alien Tort Statute (外国人侵权行为法) of 1789, gave them jurisdiction over "any civil action by an alien for a tort only, committed in violation of the law of nations." There are also jurisdictional
73 75

1 U.S. (1 Dallas) 111 (1784). 175 U.S. 677, 700 (1900). 76 18 U.S. (5 Wheat.) 153, 160-161 (1820). 77 630 F. 2d 876 (2d Cir. 1980). 12

foundations for applying international law in federal court cases arising under the laws and treaties of the United States, in diversity jurisdiction involving foreign citizens or states, in admiralty cases, and in cases involving foreign diplomats. In practice, U.S. courts may be readier to apply international law in disputes concerning "vertical" (垂直) relations between states and individuals than in those involving "horizontal" relations between states. In any case, a claim based on the law of nations must demonstrate that state practice shows a rule. So, in Paquete Habana, the Supreme Court found sufficient practice to prove a rule exempting coastal fishing vessels from seizure, and in Amerada Hess, the Second Circuit held that there was sufficient evidence for a rule protecting neutral shipping in international waters from attack in the Falkland Islands conflict. However, in Echeverria-Hernandez, a panel of the Ninth Circuit rejected a claim that "international law requires the United States to provide temporary asylum to all persons fleeing internal armed conflict"; evidences that states actually did provide such refuge were held to be only acts "of understandable humanitarian concern.'' As to the supremacy of international common law in U.S. law, international common law has much the same status vis-á-vis state law as do treaties and other international agreements. Although there is no constitutional supremacy clause for customary international law as there is for treaty law, it makes "no sense that questions of international law should be treated as questions of state rather than federal law.''87 Customary international law is appropriately viewed as an area of federal common law where the Supreme Court is given the final say in setting the rules for the state and federal courts alike. The Supreme Court in Banco Nacional de Cuba v. Sabbatino held that customary international law, in this case the act of state doctrine (国家行为原则), "must be treated exclusively as an aspect of federal law.'' Compared with other federal law, international common law plainly has no more supremacy than do treaties; that is, statutes later in time prevail. Whether international common law has as much potency as international agreements is a matter of some dispute. When, in an early tentative draft of the Restatement (Revised) of the Foreign Relations Law of the United States (美国对外关系法 重述修订本), the Reporters wrote that new international common law as well as new international agreements superseded preexisting municipal law, there were protests that there were no cases awarding international common law this status, and in a later draft, the Reporters retreated, stating only that new treaty provisions superseded preexisting domestic law. In practice, conflicts between U.S. law and international law do not often arise. Judges are usually able to reconcile possibly conflicting provisions. As Chief Justice Marshall wrote: “[A]n act of Congress ought never to be construed to violate the law of nations if any other possible construction remains.” Unlike the incorporation of treaties into municipal law, where the United States differs so greatly from other common law countries, U.S. practice with respect to the domestic incorporation of international common law is rather close to that of other common law jurisdictions. Brownlie puts the proposition for England and the Commonwealth as follows: "The dominant principle, normally characterized as the doctrine of incorporation, is that customary rules are to be

Henkin, International Law as Law in the United States, 82 Mich. L. Rev. 1555, 1559 (1984). 13

considered part of the law of the land and enforced as such, with the qualification that they are incorporated only so far as is not inconsistent with Acts of Parliament or prior judicial decisions of final authority.'' In England, the incorporation of international law is judge-made, rather than publicist-made, doctrine. There is a continuing "controversy . . . whether, if rules of international law are part of English law, they are, once they have been pronounced upon by English courts, subject to the rules of English law relating to the binding force of judicial precedent'' or may be modified against precedent by lower courts following perceived changes in customary international law. Such controversies continue to swirl (令人头晕), for as Lord McNair noted, "We have never attempted to rationalize the relations between international law and English law .... [S]uch controversies as that between the monist and the dualist theories, into which the late Professor Oppenheim in vain tried to lead us, have found no abiding (持久的) place in our literature.'' Accordingly, the workings (适用方式) of the doctrine must be picked out in a common law fashion case by case. Of course England shares Barbuit's Case, Triquet v. Bath, and Blackstone with the United States.* A more modern English formulation of the incorporation rule is found in West Rand Central Gold Mining Co. v. The King: It is quite true that whatever has received the common consent of civilized nations must have received the assent of our country, and that to which we have assented along with other nations in general may properly be called international law, and as such will be acknowledged and applied by our municipal tribunals when legitimate occasion arises for those tribunals to decide questions to which doctrines of international law may be relevant. But any doctrine so invoked must be one really accepted as binding between nations, and the international law sought to be applied must, like anything else, be proved by satisfactory evidence, which must show either that the particular proposition put forward has been recognised and acted upon by our own country, or that it is of such a nature, and has been so widely and generally accepted, that it can hardly be supposed that any civilized State would repudiate it. In Canada, "customary rules of international law are adopted automatically into our law, amid a few caveats about sovereignty and then directly applied unless they conflict with statute or some fundamental constitutional principle in which case legislation is required to enforce them.''98 Although this practice is reasonably consistent in Canada, it is, as in England, largely unsupported by any forthright judicial theory. As Professor Macdonald remarks, "if this absence of theory is remarkable, it is also in keeping with what can only be described as the common law tradition of doing first and theorizing about it afterwards.'' ***
“Lord Mansfield, in Triquet v. Bath (1764), reported that it was Lord Chancellor Talbot’s “clear opinion” in Barbuit’s Case “that the law of nations, in its full extent, was part of the law of England,” a position that Lord Mansfield confirmed in Heathfield v. Chilton (1767).24 In 1765, Blackstone published a like belief—“the law of nations (wherever any question arises which is properly the object of its jurisdiction) is here adopted in its full extent by the common law, and is held to be a part of the law of the land”—in the fourth volume of his hugely influential Commentaries.” Quoted from Mark Weston Janis, International Law as Fundamental Justice: James Brown Scott, Harold Hongju Koh, and the American Universalist Tradition of International Law, 46 St. Louis University L J, 345, 2002. – Editor’s note. 98 Macdonald, The Relationship Between International Law and Domestic Law in Canada, Canadian Perspectives on International Law and Organization 88, 111 (Macdonald, Morris, & Johnston eds. 1974). 14


Constitutions and General International Law

Outside of the common law jurisdictions, many countries rely on explicit constitutional provisions incorporating international law other than treaties into municipal law. The French jurist Rousseau (卢梭) divides such constitutional solutions into three groups. First are those constitutional provisions, often found in preambles, where the state indicates its readiness in principle to submit to general international law. For example, the preamble to the present French Constitution, that of October 4, 1958, reads that "the French people solemnly proclaim their commitment to human rights and to the principles of national sovereignty which have been defined by the Declaration of 1789 and confirmed and elaborated by the preamble to the Constitution of 1946.'' The Constitution of October 27, 1946, so incorporated by reference in the present Constitution, explicitly provided that "the French Republic, faithful to its traditions, adheres to the rules of public international law.'' Second, some constitutions expressly incorporate general international law into municipal law and leave to the legislators or the courts the duty of harmonizing any conflicts between international and municipal rules. So, for example, in the Philippines (菲律宾), Article 2 (3) of the Constitution provides that "[t] he Philippines ... adopts the generally accepted principles of international law as part of the law of the Nation."* Third, some constitutions not only incorporate international common law into national law, but also give it priority over domestic rules in case of conflicts. In the Constitution of the Federal Republic of Germany, Article 25 provides that "the general rules of the law of nations are part of federal law. They take precedence against domestic law and directly create rights and duties for persons in the country.” ***

* Article 2, Section 3 of the 1973 Constitution of the Republic of the Philippines states: “The Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land, and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations.” This Section now becomes Article 2, Section 2 of the present 1987 Constitution. – Editor’s note.


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