The Yale Law Journal


Old W(h)ine, Old Bottles: A Reply to Professor Paulsen

29 Sep 2009

International law is “everywhere” in the United States: informing state CO2 emissions standards; providing inspiration for local civil rights codes; and overseeing the more than three trillion dollars in annual trade in goods, to name just a few examples. A reader of Professor Michael Stokes Paulsen’s essay, The Constitutional Power To Interpret International Law, might be forgiven for missing these important trends, because rather than focus on the ubiquity of international law and the myriad ways in which it has permeated U.S. legal, social, economic, and political life, Paulsen returns us to old arguments over whether international law is “law” or presents any binding restraints on domestic actors. This claim is based on a static, formalist approach to the foreign affairs Constitution that stands in contrast to the dynamic realities of transnational lawmaking today.

Paulsen’s central claim, that the U.S. Constitution is the domestic means through which United States’ international legal obligations are realized and enforced, is hardly controversial. Nor, contrary to Paulsen’s assertion, does the claim “threaten[] all that the community of ‘international law’ scholars hold most dear.” Rather, it is a central premise of the modern international legal system that the rights and obligations of international law are generally given effect through domestic legal actors. For the United States, it is the Constitution that tells us how international legal obligations are given legal effect, and which actors are empowered to interpret, implement, and enforce (or not) those obligations as a matter of domestic law. As the United States is subject to an increasing number of treaty obligations, and as the sphere of national activities addressed by international law has expanded, the question of the constitutional effect of these obligations has become more complex. The Supreme Court, Congress, the President, and, though little discussed by Paulsen, states and localities, have grappled with the appropriate allocation of the power to participate in and apply international law as domestic law. And, correspondingly, legal scholars have engaged in lively debates—encompassing a full range of theoretical approaches—over the scope of authority of constitutional actors to apply, interpret, create, or breach international law obligations within the United States. As such, it is perplexing that Paulsen would find this area “undertheorized.”

Paulsen further asserts that the Constitution “binds” U.S. actors in a way that international law does not. He acknowledges, however, that most international obligations undertaken by the United States become domestic law through well-accepted constitutional mechanisms. Thus, the extent to which those obligations are binding within the United States rests on the ways in which they are incorporated into domestic law. Moreover, most of these “domesticated” international obligations are carried out in rather unremarkable ways, with disputes about their application or interpretation being settled on a regular basis through domestic or international dispute settlement bodies (it is worth emphasizing that the use of international dispute resolution has been explicitly incorporated into domestic law). For all Paulsen’s claims of the “fogginess” that surrounds “vague” and “elliptical” international law, U.S. participation in the international legal system operates smoothly and in ways largely indistinguishable from the application of domestic laws.

Paulsen’s secondary claim—which he argues flows from the claim of constitutional superiority over international law—is that international law is not “law” at all, but rather policy. This attack on what Stephen Colbert might call the “lawiness” of international law has old origins, dating back to John Austin’s nineteenth-century critique of the rise of naturalism, Hans Morgenthau’s theory of international relations realism of the mid-twentieth century, and Robert Bork’s laments over international law in the 1980s. Indeed, it seems that whenever there is a new challenge to the international legal order that might require a reexamination of the nature of nation states’ obligations to one another (today, that challenge is the rise of transnational terrorism), the debate over whether international law can be classified as law is also joined. But labeling international law as “law,” “policy,” “political commitment,” “best practices,” or something else does not address the more interesting and salient question of whether international law alters state or individual behavior in practice and not just in theory. Does international law affect the behavior of U.S. constitutional actors in ways that cannot be explained solely by domestic political or legal constraints?

Paulsen’s illustration of the distinction between domestic and international lawmaking actually supports the claim that international law can and has constrained U.S. actors. Paulsen argues that the constitutional power of Congress and the President to breach preexisting treaty obligations is “hugely undermining [to] the force of such international treaties as binding national law for the United States.”Of course, Congress and the President also have the power to enact (constitutional) legislation that can nullify prior domestic law. All legislation could therefore be considered “utterly contingent on the prospective actions and decisions of U.S. constitutional actors.” Yet we rarely frame this power of the political branches as “hugely undermining” the force of domestic laws while they are in effect. When Congress and the President change their preferences, they undertake new laws. That the President and Congress can do so with regard to treaty commitments is far from controversial or upsetting to the international legal order, which itself recognizes and provides rules to facilitate both participation in and withdrawal from treaties.

We generally accept that changes to the domestic statutory or regulatory order might come with real economic, social, and political costs, some of which are adjudicated in legal proceedings, and some of which are resolved through “politics.” Paulsen recognizes that breaches of international commitments “may have serious international political repercussions.” Just as nonlegal domestic costs alter the behavior of the President and Congress, the international costs posited by Paulsen in cases of breach of prior commitments are in some cases enough to change the behavior of the constitutional actors. The Bush Administration’s use of torture against detainees captured as part of the post-9/11 war against terrorism is a useful illustration of how international costs ultimately constrained behavior.

On the torture question, Paulsen makes the bold claim that “it is within the President’s constitutional power as Commander in Chief of the nation’s military force in time of war to determine whether (or not) to kill, capture, hold, interrogate, torture, or release members of the enemy armed forces.” In this he goes further even than the Bush Administration’s internal legal advice (later withdrawn) that professed to interpret the statutory provisions implementing U.S. obligations under the Convention Against Torture (CAT). Despite all the powers that Paulsen posits were available to the President—the power to unilaterally breach the Geneva Conventions (GCs) and the CAT in whole or in part—President Bush made no public statements that he was constitutionally or otherwise empowered to authorize the torture of detainees and never publicly repudiated or stated that he was breaching or suspending those international commitments not to torture. To the contrary, President Bush and other officials repeatedly stated during the period from 2004 to 2007 that the Administration “does not torture,” that its programs complied with domestic and international law, and that it remained committed to compliance with the GCs and the CAT.

The internal debates over proposed derogations from the international standards to which the United States had long subscribed further reveal how difficult it was for those within the executive branch who had internalized the norms of the GCs and CATs to deviate from them in crafting legal policies for the new terrorism suspects. To be sure, the prohibition against torture has a moral dimension that played an important role in the internal discourse. But that moral dimension has been reinforced by years of U.S. participation in international efforts to outlaw and prosecute torture. Further, the debate over whether torture “worked” or promoted the national interest by interrupting terrorist networks was supplanted—most notably during the 2008 presidential campaign when both party candidates opposed the prior torture practices—with the argument that compliance with long-held international rules bolsters national security.

The international costs of officially repudiating the formal commitments were real and threatened to interfere not just with the U.S. reputation for upholding the normative aims of the GCs and CAT, but also the ability of the United States to engage in effective war-making and counterterrorism efforts.

Whether one frames the costs in terms of reputation, the desire for reciprocity, or the avoidance of retaliation, the torture narrative illustrates that external costs constrained actors and altered their interest calculations. These altered calculations in turn affected how actors in the United States interpreted and exercised their own constitutional powers. For the executive branch, this meant resistance to derogation from the international norm, and later, the adoption of a clear policy that applied the international standards of interrogation to all detainees. For the Supreme Court, this was reflected in the Hamdan v. Rumsfeld opinion, requiring the application of the minimal protections of Common Article 3 of the GCs to Guantanamo detainees. What emerges is not a picture of international law that is “illusory” within a process of constitutional law, but rather a domestic constitutional order that cannot cut itself off from considerations of international law.

Paulsen’s article is another entry in the ongoing debate over the democratic and constitutional legitimacy of international law in the United States, a debate which has been quite useful to the broader project of liberal internationalism. As democratic constitutionalism has rapidly spread around the globe in the post-Cold War years, more domestic and regional legal systems are taking a closer look at the process through which international law “comes home.” For the European Union, this has recently meant reconciling Security Council mandates with regional human rights protections. In the Kadi case challenging the Security Council counterterrorism regime, the European Court of Justice ruled that the European Commission could not adopt black lists of individuals and corporations without providing minimal due process guarantees to individuals seeking to challenge the list. And the Supreme Court’s decision in Medellín v. Texas can also be seen through this lens of reconciling constitutional protections (both separation of powers and federalism considerations) with international obligations.

Scholars and lawyers examining the current state of U.S. legal engagement with the world generally adopt one of two dominant narratives: internal/constitutionalist or external/internationalist. A more useful framing for a conversation over lawmaking would result if each side jettisoned the hierarchical and superior claims of either international law or constitutional law and embraced the interactions between the two systems from a transnational or intersystemic perspective. The interesting story being told in international law scholarship today is about the ways in which constitutionalism is being globalized and how international law is, or should be, subjected to principles of democratic constitutionalism. In this intersystemic dialogue, each system of law will be tested for democratic legitimacy, claims of authority, and consistency with a broadening scope of universal rights. Just as international law is increasingly contested where it is inconsistent with constitutional norms and universal standards of individual rights, constitutional systems are moving toward a degree of convergence with international standards of rights. In this world, there is no place for a Constitution that operates outside of international law, and no place for international law that operates without a commitment to constitutionalism.

Margaret E. McGuinness is an Associate Professor of Law, University of Missouri Law School. Special thanks to Jim Rogers for research assistance and to Peter Spiro and Chris Borgen for useful conversations about this Essay. 

Preferred Citation: Margaret E. McGuinness, Old W(h)ine, Old Bottles: A Reply to Professor Paulsen, 119 YALE L.J. ONLINE 31 (2009),