Title:

An Empire of the Scholars: Transnational Lawyers and the Rule of Opinio Juris. By: Olson, Andy,
Perspectives on Political Science, 10457097, Winter2000, Vol. 29, Issue 1
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AN EMPIRE OF THE SCHOLARS: TRANSNATIONAL LAWYERS AND THE
RULE OF OPINIO JURIS
Contents
1. MONISM AND DUALISM
2. INSTITUTIONALIZING MONISM IN THE U.S. LEGAL SYSTEM
3. A WORLD OF LEGAL SCHOLARS AS SOVEREIGNS
4. NOTES
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One of the goals of a true democracy is to create what John Adams called "a government of laws, and not of
men."( n1) Today, however, the rule of law is being confused with rule by lawyers. Specifically, there is a growing
movement within the international law community to build a transnational legal regime above and independent of the
citizens of states and the governments they elect. These transnational legal scholars have been reinterpreting
international law so as to create an independent source of sovereignty, superior to and unchecked by the
governments of states. They have, in addition, appointed themselves as the guardians and directors of the emerging
system. But law based not on constitutions, the statutes of legislatures, and the consent of states but on the personal
opinions of scholars does not carry the approbation of the duly enacted laws of democratic governments. And
unsanctioned laws lead to bad government. Such an alternative source of legitimacy limits the authority and power of
states. Thus international law is quickly being transformed into a transnational sovereign without legitimation by the
governed, a system above and apart from the governed. And given its reliance on the opinions of elites who are not
authoritative decision makers, international law is becoming an empire of the scholars.
Few would doubt that attorneys who practice public international law play a unique role in the formation of U.S.
foreign policy.( n2) Those elites form what Peter Haas has described as an epistemic community: a community of
professionals who possess a recognized expertise in the field of jurisprudence and thus have an authoritative claim to
policy-relevant knowledge concerning the law. Haas further defines such a community as consisting of professionals
who have
( 1) a shared set of normative and principled beliefs, which provide a value-based rationale for the social action of
community members; ( 2) shared causal beliefs, which are derived from their analysis of practices leading or
contributing to a central set of problems in their domain and which serve as the basis for elucidating the multiple
linkages between possible policy actions and desired outcomes; ( 3) shared notions of validity--that is, intersubjective
internally defined criteria for weighing and validating knowledge in the domain of their expertise; and ( 4) a common
policy enterprise--that is, a set of common practices associated with a set of problems to which their professional
competence is directed, presumably out of the conviction that human welfare will be enhanced as a
consequence.( n3) (emphasis added)
In many respects, the community of public international lawyers provides a model example of Haas's definition of an
epistemic community of elites. This community views itself as a guild of accredited specialists engaged in the
formation of society's rules and uniquely qualified to interpret international law.( n4) These attorneys reach out across
national boundaries, sharing ideas at conferences and serving on international law boards and commissions
established to further the study of international law and its role in international problem solving. They meet and
exchange views in a variety of venues such as the International Law Section of the American Bar Association, the
American Society of International Law, and the UN-created International Law Commission, to give but a few
examples.
Furthermore, the law is a system constructed of shared normative and principled beliefs in the form of the laws and
rules that constitute the societal order. It is a system whose validity is based on commonly accepted foundations of
legitimacy, namely constitutions, statutes, regulations, and precedents. And, most important, lawyers view their
profession as one dedicated to solving the most fundamental societal problems through the regulation of individual
behavior.
Public international lawyers, including both those serving within the government and those working for
nongovernmental organizations, participate in the creation of international law through the formation of treaties and
the interpretation of customary and other forms of international law. This community of elites influences domestic-
level foreign policy decision making across all three branches of the U.S. government through interpretations of
international law. On both the domestic and international levels, this "specialized interpretive community" helps to
shape the political environment in which foreign policy decisions are made and to regulate the implementation of
those decisions through international legal practice.( n5)
A great debate is raging in that community, the outcome of which could have profound effects on the way individuals
view their government. The debate concerns the nature of international law and its relationship to the nation-state.
Where an international lawyer falls in this debate depends on his view of the role of customary international law and
the sovereignty of the state.( n6)
The jurisdictional nature of international law is more vague than that of the laws and rules created by national
legislation and adjudication.( n7) There are several accepted branches of international law in the United States, which
are accorded different levels of legitimacy. The Constitution mentions both "Treaties" and "the Law of Nations."( n8)
The Restatement (Third) of Foreign Relations Law of the United States, an influential treatise compiled by the
prestigious American Law Institute, composed of U.S. international law scholars of the highest esteem, states that
there are three main sources of international law under the U.S. legal system: "customary internati onal law";
"international agreements," which include treaties among states; and a rule of law "deriv[ed] from general principles
common to the major legal systems of the world."( n9)
Treaties are formal agreements negotiated between or among governments and are signed and ratified, in the case
of democracies, by the nations' duly elected leaders. Customary international law, on the other hand, was originally
derived from the behavior of governments toward each other. At the time of the Constitution's writing, "the Law of
Nations" constituted a small body of international practice, developed over the centuries, governing relations among
states, such as the treatment of ambassadors, maritime law, and conflicts between the laws of different nations. In
time, the "Law of Nations" was renamed "customary international law."( n10)
Customary international law (CIL), "jus cogens,"( n11) and other similar forms of international law are not enacted
"positively"( n12) by elected legislators and national executives but today are derived to a great extent from the
interpretations and writings of legal scholars. In fact, the Restatement (Third) explicitly states that in determining
"whether a rule has become international law . . . substantial weight is accorded to" the judgments and opinions of
international judicial and arbitral tribunals, national judicial tribunals, pronouncements by states that undertake to
state a rule of international law, and the writings of scholars.( n13)
In the opinion of the international law community, customary international law is created through the convergence of
the opinions of members of that community. When the convergence threshold has been crossed is unclear.
Nevertheless, international law scholars and lawyers argue that it is determined through their writings in international
law journals and participation in international conferences.( n14) They claim the right to announce new, controlling
CIL, pointing to the comments of government officials (regardless of the character of the government) and to the
declarations and resolutions of international organizations as evidence of their opinions. Often, customary
international law emerges simply because the law scholars make the normative claim that it should exist. Because
this growing body of customary international law is, to a great extent, created by the convergence of scholarly
opinion, as opposed to legislation, it has been given the name (without the slightest hint of irony) "soft law." As an
indication of how soft this new "law" is, many prominent commentators now claim that neither uniformity, affirmative
consent, nor tradition is required to create CIL. For example, Oscar Schachter, a professor emeritus of Columbia
University Law School and former co-editor-in-chief of the American Journal of International Law--the official
publication of the American Society of International Law--has written,
This [new] position departs from the traditional view of custom as requiring uniformities of state practice revealed in
behavior and the claims of states against other states. Some writers and occasionally governments have maintained
that some general multilateral treaties adopted by a UN body constitute strong evidence of "generally accepted rules"
binding on all [emphasis added]. These varied arguments have led a critical French jurist to observe that the
requirement of consent to treaties has not been "frontally assaulted but cunningly outflanked."
. . . Many of the [UN] agencies use innovative techniques to extend the range of international regulation. The
techniques are of particular interest since they significantly relax the traditional principle that no state is bound without
its consent. An example is a provision for the amendment of treaties by treating silence as consent.( n15)
As the community reviews its own work, it bootstraps its own arguments. It adds layer upon layer of commentary to
an emerging norm of customary international law until it achieves a seemingly unimpeachable validity. Professor
Jeremy Rabkin, of Cornell University, writes,
International human rights law is not the product of court rulings, but of international conferences. Abstract
pronouncements are enough. At that, they need not even be the authoritative pronouncements of governmental
authorities. Words spoken by diplomats at conferences are given much weight, and then the reconfiguring of those
words by commentators is supposed to give more weight, and the repetition of the words by yet other commentators
is thought to lend more weight to contentions about the law. Soon there is a towering edifice of words, which is then
treated as a secure marker of "customary international law."( n16)
These collected norms of customary international law are evolving as fast as the legal scholars can write articles on
them.
MONISM AND DUALISM
There are two camps with conflicting views on the role and status of customary international law.(n17) In the more
traditional view, often described as "dualist," international law is a law among sovereign states. It is dual in that it
recognizes a distinction between international and national law, namely, that state and international law have
different, though not necessarily incompatible, sources of legitimacy. In the second, the "monist" view, international
law emanates partly from states but, more important, is a regime unto itself. The monists view international law as
indistinct from national law and as superior. They view international law as containing, independent of states, its own
foundations of legitimacy. For the monists, the international legal order is not a system of comity among sovereign
states but a sovereignty in its own right to be constructed and institutionalized by international lawyers for purposes of
curbing state sovereignty. Monists wish to replace the legitimacy of state sovereignty with what Judith Goldstein and
Robert Keohane might call a "socially-constructed" transnational legal sovereignty.( n18) But to accomplish this, they
must first deconstruct state sovereignty.
The practice of public international law has been predominantly dualist since the Peace of Westphalia created the
modern world of states in 1648. Dualism is state centered and realist in character, positing that states are sovereign,
law-making equals under the international law system, even if they are not equals in the more material matters of
power and wealth.( n19) Within this system of equals, international law can be seen as a system of comity among
states. States contract with each other by treaty, and long-standing custom is used to resolve disputes. However,
international law is not "law," as that term is commonly understood.( n20) There is no legitimately authorized global
legislature, world sheriff, or judge.( n21) Should a state choose to, it may break international law--of course, at its
peril. Within this framework, sovereignty is vested in the state. The state may rescind any authority it grants to an
international organization.
The dualist approach preserves the sovereignty of nations while taking international law seriously. In the United
States, the judicial branch begins with the presumption that whenever possible federal law should be construed to
uphold international law. Statutes must be interpreted with the goal of keeping U.S. domestic law consistent with
international law to prevent a violation of the latter by the United States. However, the dualist approach also
recognizes that the United States retains the right, as a sovereign state among equals, to take actions that might
violate international law should the United States determine it to be in its own national interest to do so. Such
violations of international law will have consequences, but nations retain the right to abrogate international law.
Monism allows no such abrogation.
One can chart the rise of monism by examining the bloody wars of the twentieth century. In particular, attempts to
prevent war by making it illegal through treaties such as the Geneva Conventions, the United Nations Charter, and
the Nuremburg Trials have given rise to the modern school of monism. Monists, in a nutshell, distrust national
institutions and look instead to peace and order through international law.
If the modern monist position has a spiritual founder it would have to be the renowned Austrian legal schol ar Hans
Kelsen. Kelsen, who taught at the University of California, Berkeley, from 1940 until his death in 1973, like many
scholars of jurisprudence, saw a need for a legal system that curbed the arbitrarily exercised powers of
government.( n22) Kelsen wrote of a "pure theory of law" in which law is considered a science.( n23) Kelsen created
a legal scientific paradigm in which the law contains its own internal bases for determining truth, independent of other
sciences. In this respect, the law is philosophically relativist, rejecting claims to absolute truth. The law, he wrote, is
much like a political system. It constitutes a system of compromises made by individuals to create a socially cohesive
state.( n24) The science of law, for Kelsen, is governed by discoverable norms regarding how human beings ought to
behave in a just legal system.( n25)
Kelsen's pure theory of law constitutes not a system of law created by sovereign states embodying national political
values, but a global web of norms governed by its own internal "scientific" logic. The "science of law" is analyzed as
an intellectual discipline by knowledgeable practitioners,( n26) in this case international lawyers. Kelsen's rule of law
is a structure governed by its own logic and is not to be a mere servant of politics or political masters, or for that
matter, even the electorate.( n27) Indeed, the law itself is the highest authority and should dominate politics,
constraining the political decision maker. Political authority is derived from the law, not the other way around. Kelsen's
pure theory of law leads to the erosion of the notion of state sovereignty because the science of law, not the nation-
state, is the supreme authority.( n28)
Kelsen concluded that international law holds the highest authority and that national or subnational legal norms are
subordinate to the international norms. To be valid, national norms must be tested against the touchstone of the
"universal legal order."( n29) As Roger Cotterrell explains, "Kelsen's rejection of state sovereignty entails not only a
rejection of the claim that the state is above the law but also of the claim that there can be no higher political
allegiance and legal obligation than to the nation state."( n30) Indeed, Kelsen turns dualism on its head, describing
national or "municipal" law as delegated to the state by international law.( n31) The international legal order, based
on an ultimate presupposed Grundnorm, becomes the ultimate sovereign.( n32) Since there is no global legislature, it
is a sovereign managed by the international legal scientists, the caretakers who discover its norms and maintain its
integrity.
Kelsen's noble attempt to create a system governed by universal norms, however, creates instead a system
dominated by the learned lawyers. The state in a liberal democracy, far from being the arbitrary oppressor of the
citizenry, is instead its political expression and servant. Lawmaking is governed not by "legal scientists" discovering
norms, but by the state, constrained by a constitution and acting on behalf of the citizens through elected
representatives. Through elections and other forms of participation, citizens decide the laws and choose the
legislatures by which they will govern themselves. Kelsen's legal order degenerates into a monopoly of self-regulating
lawyers, multiplying norms to serve as justification for further norm creation. Or, as the German jurist Carl Schmitt
noted concerning normative legal theory, "The sovereign . . . the engineer of the great machine [of law], has been
radically pushed aside. The machine now runs by itself."( n33)
The monist camp, following the Kelsen line of reasoning, perceives international and domestic law as part of a unified
system.( n34) The monist approach holds that international law is generally superior to national law and that the state
is generally bound by international law in the same sense that individuals are bound by national law.( n35) Monists
argue that policymakers cannot "violate" international law on behalf of the national interest. The sovereignty of
international law is greater than the sovereignty of individual states. A policymaker's attempted violation of
international law is an attempt to act without authority. Thus policymakers are obliged to obey international law as
determined by the international law community.
Kelsen and the monists, then, have created a new regime of sovereignty, a regime that exists beyond state--or for
that matter, any other-sovereignty.( n36) Their transnational view of international law places the global legal
community at the helm of lawmaking. Indeed, many monist scholars now opine that custom need not be based either
on time-honored tradition or on the principle of universal consent. For example, Hiram Chodosh, of Vanderbilt
University, argues that binding international law, in the form of customary international law, can be formed instantly
should a substantial number of international scholars agree.( n37) Some monist scholars even argue that customary
international law constitutes authority superior to international law in the form of treaties, including treaties between
democratic nations, despite the fact that treaty-based international law can claim legitimacy based on the consent of
the electorate through their chosen governments.( n38) The tenured scholars of jurisprudence in the world's
universities are not elected. They are not accountable in any political sense. Yet, as we have seen, under the rapidly
evolving doctrines of customary international law they are becoming a sovereign order of scholarly legislators.
In the monist view the nation-state is the source of instability in the world today. For example, at a recent symposium
on international law and human rights at Fordham University, Fali Nariman, president of the Bar Association of India,
gave this summary of the monist view of the nation-state:
[T]he task before us is to find ways to diffuse th[e] power [of the nation state]. Fortunately, ways are being found. It is
somewhat paradoxical that the once-impregnable walls of the sovereign State, so carefully constructed by the jurists
of the nineteenth century, are now being dismantled by the innovative and ingenious techniques of the jurists of the
twentieth century. But, the omnipresent ogre of State sovereignty still looms large. Much remains to be done.
The sovereignty of the State, as opposed to the concept of comity of nations, continues to be the single gravest threat
to the human right to world peace, and there is no sustained and dedicated effort to make the peoples of the world
aware of this important fact."( n39)
By globalizing lawmaking and placing it in the hands of scholars, monism seeks to reduce the power and authority of
the nation-state by creating an alternative source of rule making, one freed from the parochial concerns of individual
nations. Creating this alternative authority undermines the legitimacy of the nation-state. By treating international law
as indistinguishable from national law, monists divorce the transnational legal system from the world of international
politics, endowing it with a universal air. "Law," unlike politics, has a noble sound. Law is authoritative; law is
prescriptive. Law, unlike politics, is not based on persuasion but is coercive and is to be obeyed. Law commands.
Unfortunately, international conflict cannot be so easily contained.
In recent years, the monist school has been gaining the upper hand in the community of public international lawyers.
The Restatement (Third) reflects much of the monist position, and there is a growing consensus in favor of it in the
U.S. legal community. As law professors Jack Goldsmith, of the University of Chicago, and Curtis Bradley, of the
University of Colorado, have noted, monism has been ascendant in the classrooms and the courtrooms in recent
years; "the proposition that CIL is federal common law is today a well-settled principle of U.S. foreign relations law.
This was not always so. Indeed, the modern position has become orthodoxy only in the last two decades."( n40)
In particular, transnational human rights litigation, environmental law, and North-South wealth redistribution goals,
placed in the context of CIL and jus cogens, have provided the monist school with a broad agenda to transfer legal
authority from the level of sovereign states to the global level. To counter the growing trend, dualists must effectively
promote an alternative framework to further international human rights, environmental protection, and wealth creation.
Their challenge will be to insist, rightly, that the only true guarantee of human rights comes from systems based on
the stable and periodic elections of lawmakers and the constitutional protection of civil liberties found within the
community of democratic states.
INSTITUTIONALIZING MONISM IN THE U.S. LEGAL SYSTEM
The U.S. legal system is officially a dualist system. In Committee of the United States Citizens Living in Nicaragua v.
Reagan, for example, the D.C. Federal Court of Appeals stated,
Once again, the United States' rejection of a purely "monist" view of the international and domestic legal orders
shapes our analysis. Statutes inconsistent with principles of customary international law may well lead to international
law violations. But within the domestic realm, that inconsistent statute simply modifies or supersedes customary
international law to the extent of the inconsistency.( n41)
But the dualist consensus could be changing with both the rise of the monist view among public international lawyers
and the evolving role of international law within the U.S. legal system.
The U.S. legal system gives access to public international lawyers who form transnational coalitions for the purpose
of institutionalizing international norms as U.S. law. It is this access to the U.S. court system that makes coalitions of
public international lawyers particularly effective in influencing U.S. foreign policy outcomes.( n42) Thus, although
other transnational epistemic communities influence U.S. policy by lobbying the various parts of the executive and
legislative branches to enact their policies into law, international lawyers can skip the lawmaking level in the U.S.
system by presenting their preferred policies within the judicial system as existing law. Policy norms, interpreted as
customary international law by coalitions of monist-school lawyers, increasingly are accepted in the judicial system as
federal law binding upon U.S. domestic lawmakers.
How does the incorporation of international norms into our national law work? To begin with, as a general rule,
international law is treated as having the same supremacy over conflicting state law as federal statutes have in the
U.S. legal system. Under the Supremacy Clause and the doctrine of preemption, if a conflict arises between state law
and accepted international law, international law will prevail.(n43 In a conflict between a federal statute and a U.S.
treaty, the one that was promulgated later in time will prevail.( n44) Dualists and monists can generally agree on
these positions. Where dualists and monists diverge sharply is on questions regarding the proper hierarchy of norms
of customary international law, created by the global law community, in relation to the U.S. Constitution and federal
statutes. For example, can certain norms of customary international law supersede the U.S. Constitution? Do norms
of customary international law, created by the global law community, that come later in time than a conflicting U.S.
federal statute prevail over that statute?
As Professors Goldsmith and Bradley point out, the modern interpretation of international law in the U.S. legal system
has created an unwarranted loophole through which CIL becomes U.S. domestic law with little or no scrutiny.( n45)
Under the U.S. legal system, the question whether an international norm is, in fact, enforceable as U.S. domestic law
is a question of law "appropriate for judicial notice in courts in the United States without pleading or proof."( n46)
Taking judicial notice of a rule of law is simple when the law in question is a statute of public record or a treaty and
can easily be found in the U.S. Code. However, taking judicial notice of a rule of international law, in the form of
customary international law, can be another matter. The judge is called upon to make a determination whether a
proposed rule of customary international law, not adopted by any competent U.S. legislative body, is in fact a binding
law, equivalent to federal statute, under the U.S. legal system.( n47) But how does a judge make the determination
as to whether an international custom is binding federal law? According to monists, the judge must consult
international tribunal rulings and the writings of scholars" (emphasis added).( n48) Thus a judge trying to determine,
for example, what constitutes a "crime against humanity" consults the writings of international law scholars to
determine the elements of that crime, giving their opinions "substantial weight."( n49) The opinions of the legal
scholars as to what constitutes an offense then become the law of the case at bar and precedent for similar cases in
the future.
In this respect, this injection of customary international law into domestic law through scholarly opinion was praised
by one monist as "the thin end of the norm ative wedge of international law . . . the 'Trojan Horse of [activists].'"( n50)
Professor Harold Kongju Koh, the Clinton administration's assistant secretary of state for democracy, human rights
and labor, for example, has advocated the shaping of U.S. law and foreign policy through the judicial branch, laying
the groundwork for a transnational legal system that limits the power of national authorities. Through what he terms
"transnational public law litigation," activists can advance their political causes through the adoption of "public action"
lawsuits in the American legal system (emphasis added):
[T]ransnational public law litigation seeks to vindicate public rights and values through judicial remedies. . . . [P]arties
bring "public actions," asking courts to declare and explicate public norms, often with the goal of provoking
institutional reform. . . . [T]ransnational public law litigants have sought redress, deterrence and reform of national
government policies through clarification of rules of international conduct.
Private individuals, government officials, and nations sue one another directly, and are sued directly, in a variety of
judicial fora, most prominently, domestic courts. In these fora, these actors invoke claims of right based not solely on
domestic or international law, but rather, on a body of "transnational" law that blends the two. Moreover, contrary to
"dualist" views of international jurisprudence, which see international law as binding only upon nations in their
relations with one another, individual plaintiffs engaged in this mode of litigation usually claim rights arising directly
from this body of transnational law.
[T]ransnational public lawsuits focus retrospectively upon achieving compensation and redress for individual victims.
But as in traditional international law litigation, the transnational public law plaintiff pursues a prospective aim as well:
to provoke judicial articulation of a norm of transnational law, with an eye toward using that declaration to promote a
political settlement in which both governmental and nongovernmental entities will participate. Thus, although
transnational public law plaintiffs routinely request retrospective damages or even prospective injunctive relief, their
broader strategic goals are often served by a declaratory or default judgment announcing that a transnational norm
has been violated. Even a judgment that the plaintiff cannot enforce against the defendant in the rendering forum
empowers the plaintiff by creating a bargaining chip for use in other political fora.(n51)
Although the Supreme Court has said little concerning "transnational public litigation" lawsuits, two cases from the
Second Circuit Federal Court of Appeals have laid much of the groundwork for importing these transnationally
created norms. The case of Filartiga v. Pena-Irala broke new ground by establishing that a foreign plaintiff could sue
a foreign defendant in a U.S. District Court under the Alien Tort Act for actions that occurred wholly outside the United
States as long as the plaintiff could demonstrate that the defendant violated the "Law of Nations."( n52)
Kadic v. Karadzic furthered the Filartiga precedent. In Kadic, the plaintiffs sued the notorious Bosnian Serb leader
Radovan Karadzic for his role in the unspeakable and well-documented atrocities committed against the Bosnian
Serb population. Although the evidence against Karadzic was strong, the federal judge initially threw out the case,
citing a lack of subject matter jurisdiction, bewildered as to why foreign plaintiffs were suing a foreign defendant (who
was not present in the forum) for acts committed in a distant nation in a Manhattan federal court. The Second Circuit
overturned the dismissal on appeal, declaring that the Alien Tort Act provided a proper basis for subject matter
jurisdiction in the U.S. District Court. Yet the judge writing for the Appellate Court noted the unusual circumstances,
writing "most Americans would probably be surprised to learn that victims of atrocities committed in Bosnia are suing
the leader of the insurgent Bosnian-Serb forces in a United States District Court in Manhattan."( n53)
The plaintiffs used the Alien Tort Act as a basis for jurisdiction, arguing that Karadzic's acts, even if acts committed in
a private capacity, violated international law. The Second Circuit agreed:
We do not agree that the law of nations, as understood in the modern era, confines its reach to state action. Instead,
we hold that certain forms of conduct violate the law of nations whether undertaken by those acting under the
auspices of a state or only as private individuals.( n54)
The court further elaborated on the substance of the "Law of Nations" (emphasis added):
Filartiga established that courts ascertaining the content of the law of nations "must interpret international law not as it
was in 1789, but as it has evolved and exists among the nations of the world today." . . . We find the norms of
contemporary international law by "consulting the works of jurists, writing professedly on public law; or by the general
usage and practice of nations; or by judicial decisions recognizing and enforcing that law." . . . If this inquiry discloses
that the defendant's alleged conduct violates "well-established, universally recognized norms of international law," as
opposed to "idiosyncratic legal rules," then federal jurisdiction exists under the Alien Tort Act."( n55)
Thus any plaintiff anywhere in the world may sue any defendant in a U.S. Federal Court (or at least in the Second
Circuit)( n56) for any crime committed anywhere, as long as the plaintiff can demonstrate that the defendant's actions
violated the "law of nations."( n57) A violation has occurred if the community of public international lawyers declares
an act a violation of international law. And, as Kadic notes, this body of customary international law is always
evolving.
A WORLD OF LEGAL SCHOLARS AS SOVEREIGNS
Whereas dualism grounds lawmaking in a system of state sovereignty, the monist view of customary international law
as a binding horizontal web of international norms is deliberately vague. The monist position leaves open the
possibility of future norm-making, and thus lawmaking, through evolving interpretations of international law. For
example, one former International Court of Justice judge has asserted that the UN General Assembly's "New
International Economic Order"( n58) resolutions, demanding "equity" in the form of mandatory transfers of wealth
from the "North" to the "South," is a legally binding duty of the North and a "subjecti ve international right" of the South
under customary international law, the rights and duties of which will be determined later.( n59) And under the monist
school's rules of customary international lawmaking, such binding international law can be formed instantaneously by
the majority of opinion in the community of international scholars.( n60)
The monist view naturally leads to Kelsen's conclusion that the international legal order, as maintained by the juridical
scientists, is supreme. Because state sovereignty is subordinate to international law, international judicial institutions
can render legal decisions that bind the domestic policymaker under both international and national law. For example,
in the case of Committee of the United States Citizens Living in Nicaragua v. Reagan, the appellants argued the
monist view, asserting that the judgments of international tribunals were binding law upon the United States:
Appellants argue that the rule requiring parties who have submitted to an international court to abide by its judgment
is not only a principle of customary international law but has become a form of jus cogens. Because such peremptory
norms are nonderogable and enjoy the highest status within international law, appellants conclude that these norms
are absolutely binding upon our government as a matter of domestic law as well. Indeed, appellants assert that "the
obligation stemming from the ICJ judgment . . . is such that it rises to the level of a constitutional obligation, which
cannot be overridden by statute."( n61)
Taken to its logical conclusion, such an approach would render the International Court of Justice in the Hague or any
similar international juridical entity superior in matters concerning the interpretation of international law to our
Congress, our president, and even our own U.S. Supreme Court. A decision from the ICJ, if held to be a matter jus
cogens, would become a nonderogable duty of international law that each nation would be obliged to follow. No
nation would be empowered with the authority to overturn, overrule, or ignore that rule that rises to the "level of
constitutional obligation." Under such a view, even the Constitution would be subordinate to a conflicting international
norm "from which no derogation is permitted." Some American legal scholars, such as Michael Glennon and Jules
Lobel, have argued as much, claiming that the president has no constitutional authority to violate international
law.( n62)
The monists do not stop at the creation of new international rules and the emphasis on the supremacy of
supranational legal institutions, however. They have creatively expanded old and narrow bases of jurisdiction to
parallel the new, evolving civil and criminal norms. In a remarkable recent event, the international law community
validated an incredible expansion of a concept known as "universal jurisdiction."( n63)
Generally, jurisdiction to prosecute is based on the defendant's contacts with the forum in which the injury
occurred.( n64) Usually, the defendant has direct contacts with the prosecuting state; for example, the defendant has
committed crimes within the offended state, has committed acts intended to injure that state, or is a citizen of that
state. Universal jurisdiction has been a traditional exception to this direct contact rule. It originated as a narrow source
of jurisdiction to cover the prosecution of pirates, men without country who rarely appeared in any jurisdiction but hid
on the high seas. Under universal jurisdiction, any state was recognized by the others as having the authority to seize
the maritime brigands and prosecute them for piracy. Piracy constituted a grave threat to all nations and thus over the
centuries developed into a specifically defined "crime against humanity." Universal jurisdiction to prosecute pirates
was created among the sovereign states because pirates were considered unique among criminals, in that they were
highly mobile and lived on the common seas, a threat to all, and could disappear easily into the vast recesses of the
oceans. Instead of allowing, for example, only the Dutch Navy to catch pirates who raided Dutch merchants, the
English Royal Navy was empowered to seize them also, should they catch them.
Last fall, Spanish judge Baltasar Garzon, a Socialist-party magistrate with a reputation as a daring and zealous
investigator, ordered the arrest of Chilean General Augusto Pinochet while he recuperated in a London hospital.
Judge Garzon claimed the power to prosecute the "crimes against humanity" committed by the Pinochet regime as
within his authority as an examining magistrate in Spain's National Court system.( n65) Judge Garzon cited universal
jurisdiction as a basis for the investigation. In this matter, Pinochet had no direct contacts with Spain: Pinochet is
Chilean, the acts in question occurred during the civil war in Chile, and the arrest warrant was served in Britain.
Ordinarily, because the acts occurred entirely within Chile and because Pinochet is a Chilean citizen, Chile would
have been the proper forum of jurisdiction to prosecute Pinochet. Judge Garzon was thus obliged to rely on universal
jurisdiction as a means of getting Pinochet into the Spanish court. In spite of the novelty of prosecuting a former head
of state under universal jurisdiction, the warrant was upheld by the governments of Great Britain and Spain and was
lauded by much of the international law community as a proper basis for his prosecution.
The Pinochet case is more interesting for its radical reinterpretation of the relationships between state sovereignty,
diplomatic immunity, and the authority to prosecute criminal acts than for the emotions and polemics it has aroused.
In spite of his frail health, it is difficult to have sympathy for Pinochet. He overthrew a democratically elected, albeit
incompetent and divisive, government and installed a military dictatorship. Furthermore, he has been implicated in the
deaths of perhaps thousands of his fellow Chilean citizens. Yet the zeal to prosecute Pinochet has resulted in a
profound and unlegitimated expansion of a vague basis for jurisdiction: A person accused of committing an offense
against the law of nations, as defined by international norms (that is, the customary international law as evidenced by
the writings of law scholars), can be tried in any nation that apprehends the suspect.
The concept of universal jurisdiction, when combined with the vagaries of customary international law, could lead to
some surprising long-term results. For example, it would allow any country to prosecute any person who falls under
its control for "crimes against humanity," however the international law scholars choose to define that term, because
no treaty among sovereign states exists to define it. As John Bolton of the American Enterprise Institute has pointed
out, under such loose definitions of crimes, a U.S. soldier could be prosecuted for committing "outrages upon
personal dignity,"( n66) and corporate officers and directors could be prosecuted for environmental "crimes"( n67)
such as oil spills, mining near a "world heritage site," or providing unsatisfactory wages, hours, or other terms of
employment.( n68)
Under U.S. law, a charge of committing the "crime against humanity" of "outrages upon personal dignity" would likely
be ruled a violation of the due process and notice guarantees as unconstitutionally vague and thus void. But as noted
above, in the monist view, prosecuting "crimes against humanity" would still be a supraconstitutional duty under jus
cogens. One cannot predict the outcome in the courts of other nations where guarantees of due process are not so
highly valued. The only check on the potential for international mischief by the less-scrupulous governments of the
world, claiming the power of universal jurisdiction to harass U.S. citizens for ill-defined "crimes," will ultimately come
from close diplomatic scrutiny and a willingness by the U.S. government to hold the mischief makers accountable for
their actions.
The great American jurist Oliver Wendell Holmes once satirized the fiction of a general federal common law as "a
transcendental body of law outside of any particular State but obligatory within it unless and until changed by
statute."( n69) Similarly, monism can be described as a transnational, transcendental legal system existing outside
the authority of states and dreamed up by eminent legal scholars who claim its supremacy over national systems of
law.
Monism runs counter to Anglo-American democratic culture. The belief that tenured legal scholars, unaccountable to
the political system, are empowered to create enforceable rules of law that claim a higher sovereignty than national
law is antithetical to the U.S. Constitution and America's most cherished ideas of due process, separation of powers
in government, and the guarantee of legislators made accountable through the elective process. Monists claim that
their idea of transnational law will create a system of prescriptive laws to prevent arbitrary international behavior. But
it is the opinions of the transnational monist elite that in fact are arbitrary. There is nothing clear or predictive about
the vague, evolving opinions of legal scholars as to what constitutes an international offense. Much of the world still
lives in societies that do not honor democratic civil liberties. And because much of the new international law is
created in such international organs as the United Nations General Assembly, where the democratic nations are
outvoted by nondemocratic governments, democratic nations should question the legitimacy of these newly
expanding sources of transnational law and jurisdiction. We should not expect international lawyers representing
countries with oppressive governments at these institutions to be supportive of the legal principles and civil liberties of
a free and democratic society. Instead of undermining the sovereignty of the states of the free and democratic
western world, we should be striving to strengthen it.
Dualism is consistent with American political ideals, honoring and upholding international law but recognizing that the
sovereign right to govern lies in a legislative process ratified by the voters, not in the intellectual pretensions of an
educated elite. In pursuing their laudable goal of curbing the powers of tyrannical governments, monists ultimately
undermine the legal foundations of democratic ones.
NOTES
(n1. John Adams, "Novanglus" papers, Boston Gazette no. 7, 1774. In 1780 the phrase was incorporated into the
Massachusetts constitution. See John Bartlett, Bartlett's Familiar Quotations, 15th ed. (Boston: Little, Brown, 1980),
381.
(n2.) In this paper, the term "international lawyer" will refer to those lawyers who focus primarily on "public
international law." Public international law is the law that governs the relations of governments and traditionally has
been distinguished from private international law, which is commonly said to concern business dealings among
private individuals or corporations of differing citizenship.
(n3.) Peter Haas defines "epistemic community" as "a network of professionals with recognized expertise and
competence in a particular domain and an authoritative claim to policy-relevant knowledge within that domain or
issue-area." Peter Haas, "Epistemic Communities and International Policy Coordination," introduction to International
Organization 46 (Winter 1992): 3.
(n4.) Public international lawyers are a group that can be specifically identified. To become a member of one or more
of the professional bodies that constitute the group, one must meet objective standards of admission, not only in the
United States but in other countries as well. For example, in the United States both a law degree from an accredited
law school and a license to practice law in the particular jurisdiction are usually required. Because of the claim to
specialized knowledge, the opinions of nonmembers, while persuasive, are not considered to be authoritative.
Furthermore, the legal community, at least in the United States, is largely self-regulated.
(n5.) "A discussion of interpretation [of international law] cannot pass over the question whether a specialized
'interpretive community' influences state responses to the controversial issues raised in UN bodies. Certainly, a case
can be made that international lawyers frequently play a role through scholarly writings and pronouncements of their
major professional bodies." Oscar Shachter, "United Nations Law," 88 A.J.I.L. 1, 9, January 1994.
(n6.) For a rich exchange of legal views between the dualist and monist camps, I recommend the recent debate in the
Harvard Law Review between Curtis A. Bradley and Jack L. Goldsmith, who argue the traditional U.S. view, and
Harold Hongju Koh, who argues the monist view. Bradley and Goldsmith, "Customary International Law as Federal
Common Law: A Critique of the Modern Position," 110 Harv. L. Rev. 815, February 1997; Koh, "Is International Law
Really State Law?" 111 Harv. L. Rev. 1824, May 1998; and Bradley and Goldsmith, "Federal Courts and the
Incorporation of International Law," 111 Harv. L. Rev. 2260, June 1998.
(n7.) The Restatement (Third) of the Foreign Relations Law of the United States defines international law as
"consist[ing] of rules and principles of general application dealing with the conduct of states and of international
organizations and their relations inter se, as well as with some of their relations with persons, whether natural or
juridical." It further adds, "International law, which in most other countries is referred to as 'public international law,' is
often distinguished from private international law (called conflict of laws in the United States). Private international law
has been defined as law directed to resolving controversies between private persons, natural as well as juridical,
primarily in domestic litigation, arising out of situations having a significant relationship to more than one state. See
Restatement (Second), Conflict of Laws, [Sec.] 2." American Law Institute, Restatement (Third) of the Foreign
Relations Law of the United States, Section 101 (1987).
(n8.) U.S. Constitution, Article II, Section 2, paragraph 2 ("[The President] shall have power, by and with the Advice
and Consent of the Senate to make Treaties, provided two thirds of the Senators present concur . . ."); and Article I,
Section 8, paragraph 10 ("The Congress shall have Power . . . To define and punish Piracies and Felonies committed
on the high Seas, and Offenses against the Law of Nations").
(n9.) Restatement (Third), Section 102.
(n10.) Bradley and Goldsmith, "Customary International Law as Federal Common Law," 822.
(n11.) "Jus cogens" refers to peremptory norms, a type of norm in customary international law that is said to be "so
fundamental that states cannot agree to contravene it," and which can only be changed by a subsequent norm of the
same character. Barry E. Carter and Phillip R. Trimble, International Law (Boston: Little, Brown, 1991). Also see
Article 53 of the Vienna Convention on the Law of Treaties. (Article 53 states, "A treaty is void if, at the time of its
conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present
convention, a peremptory norm of general international law is a norm accepted and recognized by the international
community of States as a whole as a norm from which no derogation is permitted and which can be modified only by
a subsequent norm of general international law having the same character." One can conclude that if treaties are not
allowed to derogate from those norms, national legislation that similarly derogates from the norms would also not be
permitted.) Although the convention entered into force on 27 January 1980, the United States has not ratified it. In
spite of this fact, numerous commentators have declared the convention to be binding customary international law.
(n12.) I am not referring here to any international law that has been adopted formally by the national sovereigns.
Treaties, for example, in the United States are signed by the executive and ratified by the Senate. On "legal
positivism," see Roger Cotterell, The Politics of Jurisprudence (London: Butterworth, 1989), 58, citing John Austin.
(n13.) Restatement (Third), Section 103 and Comments.
(n14.) For example, three of the most influential bodies include the International Law Commission, charged with
codifying and "progressively develop[ing]" international law (see Article 13(a) of the UN Charter); the American Law
Institute, which compiles the Restatements of the Law; and the American Society of International Law, which
publishes the authoritative American Journal of International Law.
(n15.) Oscar Schachter, "United Nations Law," 88 A.J.I.L. 1, 2-5, January 1994, citing Prosper Weil, "Towards
Relative Normativity in International Law?" 77 A.J.I.L. 413, 438, July 1983.
(n16.) Jeremy Rabkin, "Why Sovereignty Matters" (Washington, D.C.: AEI Press, 1998), 55.
(n17.) Some commentators avoid using the terms "monism" and "dualism." I am using them because they are
generally recognized in the international law community for these two schools of thought. I am concerned here only
with the school of legal positivism, which has been the predominant school of international law for centuries. The
other schools of legal theory include neo-Marxist or postmodernist approaches, such as Critical Legal Studies and
radical feminist approaches; and cross-disciplinary approaches, such as the New Haven School and Natural Law.
Legal positivism holds that all law, including international law, is founded on consent. Positivists tend to favor
codification of the law and are opposed to the more metaphysical and morality-based approaches such as natural
law. Positivists tend to vary greatly, however, concerning the sources of sovereignty in lawmaking; that split over
sovereignty is the theme of the debate between monism and dualism. See Robert J. Beck, Anthony Clark Arend, and
Robert D. Vander Lugt, International Rules: Approaches from International Law and International Relations (New
York: Oxford University Press, 1996), 56.
(n18.) In deconstructing state sovereignty and reconstructing sovereignty in the international legal order, monists are,
to a large extent, "reflectivist." By using normative legal theory, they seek to shift belief patterns away from the
dominant paradigm of a state-centered system to a supranational legal system based on scholar-created legal norms.
See Judith Goldstein and Robert O. Keohane, "Ideas and Foreign Policy: An Analytical Framework," in Ideas and
Foreign Policy: Beliefs, Institutions, and Political Change, ed. Goldstein and Keohane (Ithaca, N.Y.: Cornell University
Press, 1993), 3-30. Also see Alexander Wendt, "Anarchy Is What You Make of It: The Social Construction of Power
Politics," International Organization 46 (Spring 1992): 392.
(n19.) For a discussion of state-centric realism, see Paul R. Viotti and Mark V. Kauppi, International Relations Theory
(New York: Macmillan, 1987) 47-48.
(n20.) Indeed, John Austin, one of the great founders of legal positivism, thought that international law was not law,
but merely "positive morality," or "a law rooted in opinion," in that the state as the source of sovereign power was not
subject to legal sanction. States obeyed international law out of fear or a sense of honor rather than as subjects
submitting to the sovereign's command. Later, the eminent Oxford jurist H. L. A. Hart, in criticizing Austin's position on
international law as mere morality, attempted to defend international law as true law by claiming that it indeed
contained rules defining duties for states to follow. Yet Hart was obliged to admit that there existed no legitimately
recognized international rules of power for adjudicating those duties. See Beck, Arend, and Vander Lugt, International
Rules, 58-59.
(n21.) The UN Organization notwithstanding. It holds neither legitimately recognized plenary authority to legislate nor
unlimited jurisdiction to adjudicate disputes without specific state consent. See also Hans J. Morganthau, Politics
among Nations: The Struggle for Power and Peace (New York: Knopf, 1948); and, Beck, Arend, and Vander Lugt,
International Rules, 95-96.
(n22.) Hans Kelsen, "Foundations of Democracy," Ethics 66, no. 1, pt. 2 (October 1955): 1-14; Roger Cotterrell,
Politics of Jurisprudence, 113.
(n23.) Hans Kelsen, Pure Theory of Law, trans. M. Knight (Berkeley: University of California Press, 1967).
(n24.) Hans Kelsen, "Foundations of Democracy"; Cotterrell, Politics of Jurisprudence, 113.
(n25.) Cotterrell, Politics of Jurisprudence, 107.
(n26.) Hans Kelsen, "God and the State," trans. P. Heath, in O. Weinberger, ed. Hans Kelsen: Essays in Legal and
Moral Philosophy (Dordrecht: D. Reidel); Cotterrell, Politics of Jurisprudence, 114.
(n27.) Cotterrell, Politics of Jurisprudence, 114.
(n28.) Beck, Arend, and Vander Lugt, International Rules, 58.
(n29.) Mark W. Janis, "Equity and International Law," in An Introduction to International Law, 2d ed. (Boston: Little,
Brown, 1993), 84, citing H. Kelsen, Principles of International Law, 2d ed. (1966), 553-88. Also see Beck, Arend, and
Vander Lugt, International Rules, 58; Cotterrell, Politics of Jurisprudence, 115.
(n30.) Cotterrell, Politics of Jurisprudence, 115.
(n31.) Beck, Arend, and Vander Lugt, International Rules, 58.
(n32.) Ibid.
(n33.) Cotterrell, Politics of Jurisprudence, 112, citing Carl Schmitt, Political Theology: Four Chapters on the Concept
of Sovereignty, trans. G. Schwab (Cambridge, Mass.: MIT Press, 1985).
(n34.) Beck, Arend, and Vander Lugt, International Rules, 58.
(n35.) Harold Hongju Koh, "Transnational Public Law Litigation," 100 Yale L.J. 2347, 2348 n. 10.
(n36.) In this respect, the international law regime can be considered to have taken on a life of its own, becoming an
important determinant in policy outcomes. See Stephen Krasner, "Regimes and the Limits of Realism," in
International Regimes, ed. Stephen Krasner (Ithaca, N.Y.: Cornell University Press, 1983), 359.
(n37.) See Hiram E. Chodosh, "An Interpretive Theory of International Law: The Distinction between Treaty and
Customary Law," 28 Vand. J. Transnat'l L. 973, 1060-61, arguing that customary international law is an independent
source of law and rejecting the long-held positions that time and universal consent among states are required
attributes of CIL.
(n38.) Ibid.
(n39.) Fali Nariman, "Session 4: The Legal Profession and Human Rights: International Human Rights and
Sovereignty of States: Role and Responsibility of Lawyers," 21 Fordham Int'l L.J. 541, 546-47, December 1997.
(n40.) Bradley and Goldsmith, "Customary International Law as Federal Common Law," 815. However, Goldsmith
and Bradley reject the term "monist," preferring the term "modern position."
(n41.) Committee of the United States Citizens Living in Nicaragua, 859 F.2d 929 (1988 D.C. Cir.), 937.
(n42.) The U.S. legal system provides an excellent means of effecting policy changes in the United States.
Concerning how transnational actors affect policy outcomes through domestic structures, see Thomas Risse-Kappen,
Bringing Transnational Relations Back In: Non-State Actors, Domestic Structures, and International Institutions, ed.
Thomas Risse-Kappen (New York: Cambridge University Press, 1995), 6-7.
(n43.) Article VI of the Constitution states, "This 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" (U.S. Constitution, Article VI, Section 2). See also Article I,
Section 8 (10), which states, "The Congress shall have Power to . . . define and punish Piracies and Felonies
committed on the High Seas, and Offenses against the Law of Nations."
(n44.) See Restatement (Third), Section 115.
(n45.) See the Bradley, Goldsmith, and Koh exchange, note 6 above.
(n46.) See Restatement (Third), Section 113, which states, "The determination or interpretation of international law or
agreements is a question of law and is appropriate for judicial notice in courts of the United States without pleading or
proof. . . . Courts may in their discretion consider any relevant material or source, including expert testimony, in
resolving questions of international law." Thus the judge, not the jury, determines whether an interpretation of
international law is binding in the case. The Restatement reporters further note that "No federal statute or rule deals
with procedures for presenting customary international law in courts in the United States. Both federal and state
courts often take judicial notice of customary international law without requesting 'proof' of the law. Some judges have
adopted the practice of receiving evidence, including expert testimony, on questions of international law. No rule
precludes that practice and the courts tend to reject challenges to it based on the argument that international law
must be treated like domestic law for this purpose."
(n47.) Note that "United States Treaties and Other International Agreements" can be found in the public record at 1
U.S.C. Section 112.
(n48.) See Restatement (Third), Section 103, and Comments.
(n49.) Ibid.
(n50.) Mark Allen Gray, "The International Crime of Ecocide," 26 Cal. W. Int'l L.J. 215, Spring 1996, citing Gunther
Handl, "Environmental Security and Global Change: The Challenge of International Law, 1 Y.B. Int'l Envtl. L. 3, 8
(1990).
(n51.) Harold Hongju Koh, "Transnational Public Law Litigation," 100 Yale L.J. 2347-49.
(n52.) The Alien Tort Act is the vehicle by which these cases are brought into U.S. courts. It was enacted as part of
the 1789 Judiciary Act: "The District Courts shall have original jurisdiction of any civil action by an alien for a tort only,
committed in violation of the law of nations or a treaty of the United States" ("Alien's Action for Tort," 28 U.S. Code
Section 1350). In 1992 Congress passed the "Torture Victim Protection Act of 1991," author izing federal courts to
hear Filartiga-type cases based on allegations of torture.
(n53.) Kadic v. Karadzic, 70 F.3d 232 (2nd Cir., 1995).
(n54.) Kadic v. Karadzic, 70 F.3d 232, 238 (2nd Cir., 1995).
(n55.) Ibid.
(n56.) The U.S. Court of Appeals for the District of Columbia rejected a similar suit under the Alien Tort Act in Hanoch
Tel-Oren et al. v. Libyan Arab Republic, 726 F.2d 774 (D.C. App. 1984). See, in particular, Judge Robert Bork's
concurring opinion, raising the issue of political sensitivities in these matters and criticizing the Filartiga court for not
addressing the question of whether international law, of itself, created a private cause of action.
(n57.) On 25 May 1999, two Kosovar Albanians filed a civil suit against Serbian president Slobodan Milosevic in a
Massachusetts district court under the Alien Tort Act, accusing Milosevic of various U.S. and international law
violations. Raymond Bonner, "Civil Action Accuses Yugoslavs of War Crimes," New York Times, 26 May 1999.
(n58.) "Declaration on the Establishment of a New International Economic Order," U.N.G.A. Res. 3201 (S-VI), 6
(Special) U.N. GAOR Supp. (No. 1) 3, U.N. Doc. A/9556 (1 May 1974); "Programme of Action on the Establishment
of a New International Economic Order," U.N.G.A. Res. 3202 (S-VI), 6 (Special) U.N. GAOR Supp. (No. 1) 5, U.N.
Doc. A/9556 (1 May 1974); "Charter of Economic Rights and the Duties of States," U.N.G.A. Res. 3281 (XXIX), 29
U.N. GAOR Supp. (No. 31) 50, U.N. Doc. A/9631 (12 December 1974).
(n59.) "There is no doubt at all that it is a far-reaching legal revolution to have given international law this task of
fostering a policy of development and to have made this 'an international legal duty' for the rich States and a
'subjective international right' for the developing countries." See Janis, "Equity and International Law," 66-79, citing
I.C.J. judge Mohammed Bedjaoui, Towards a New International Economic Order (Paris: UNESCO, 1979; New York:
Holmes and meier, 1979), 127.
(n60.) See notes 34-37, above.
(n61.) Committee of the United States Citizens Living in Nicaragua v. Reagan, 859 F.2d 929, at 937.
(n62.) Jules Lobel, "Book Review and Notes: Foreign Affairs and the Constitution (2d ed.), by Louis Henkin," 91
A.J.I.L. 556, 557, citing Lobel, "The Limits of Constitutional Power: Conflicts between Foreign Policy and International
Law," 71 Va. L. Rev. 1071, 1119-20 (1985), and Michael J. Glennon, "Raising the Paquete Habana: Is Violation of
Customary International Law by the Executive Unconstitutional?" 80 NW. U. L. Rev. 321 (1985).
(n63.) As far as the United States is concerned, the U.S. Constitution clearly states that Congress shall have the
power to define and punish the crime of piracy and other felonies of the high seas and offenses against the "Law of
Nations." See note 8 above. For an excellent overview of the monist position on "jure gentium" crimes, see Theodore
Meron, "International Criminalization of International Atrocities," 89 A.J.I.L. 554, July 1995.
(n64.) See Carter and Trimble, International Law, 771-77, 1093-109.
(n65.) The National Court was created to replace Franco's infamous Public Order Tribunal after the Franco regime
ended in the 1970s. In Spain individuals can bring criminal actions against other individuals, whereas in the United
States state prosecutors decide whether to pursue such actions. In Spain it falls within the discretion of the judge
whether to take the case or not. David White, "Spain's Eliot Ness, Man in the News: Baltasar Garzon," Financial
Times (London), 24 October 1998, 11.
(n66.) John Bolton, "Courting Danger: What's Wrong with the International Criminal Court," National Interest, Winter
1998-99; Professor Ruth Wedgwood, letter to the editor on "Courting Danger," National Interest, Spring 1999.
(n67.) Mark Allen Gray, a high-ranking Australian diplomat, actually advocated international prosecution of private
individuals under norm-created environmental crimes in "The International Crime of Ecocide," 26 Cal. W. Int'l L.J.
215, Spring 1996.
(n68.) John Bolton, "General Pinochet's Political Persecution," Australian Financial Review, 25 January 1999.
(n69.) Black and White Taxicab & Transfer Co. v. Brown & Yellow Taxicab & Transfer Co., 276 U.S. 518, 533 (1928)
(Holmes, J., dissenting). Also, Bradley and Goldsmith, "Customary International Law as Federal Common
Law."OAndy Olson, an attorney in Washington, D.C., holds a master's degree in international affairs from George
Washington University and a law degree from the University of Missouri, Columbia.
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By Andy Olson