implication.

They have not consigned that particular portion of

the Bill of Rights to permanent obscurity.

Attorney Carl Riggs, who made several appearances before the Senate Foreign Relations Committee on behalf of the American Bar Association, testifying against the Genocide Convention from 1950 to 1970, plaintively wrote a friend on the Harvard Law School faculty, after the first round of Senate hearings, that the tenth amendment would soon become "dead as a dodo".76 The U.S. State Department in a September 1950 publication, entitled Our Foreign Policy, claimed there was "no longer any real distinction between Neither view was true then,

'domestic' and 'foreign' affairs."77

nor are they correct now. The Constitution is not only what the Supreme Court says it is, but also what the authors of the Constitution, and their immediate successors, have said it was.

Legal doctrines are not self-generated abstract
categories. They do not fall from the sky; nor are they
pulled out of it. They have a special juridical origin
and etiology. They derive meaning and content from the
circumstances that gave rise to them and from the purposes
they were designed to serve. To these they are bound as is

a live tree to its roots.

78

Article III, Section 2, of the United States Constitution

provides for treaties to be litigated by the federal judiciary. Article I, Section 8, Clause 10, provides for the Congress to pass legislation dealing with offenses against the law of nations. Clause 18--the Necessary and Proper Clause--grants Congress the authority to deal with all governmental problems, foreign and domestic. These passages clearly reflected the intentions of

the framers. And substitution of substantive provisions of treaties
and executive agreements for domestic legislation, or utilizing
international instruments to override municipal statutes wholly
domestic in content, were not within the contemplation of the
founding fathers. To paraphrase Justice Holmes, 190 years of
dicta are enough. It is time that the courts and the Congress
redressed the constitutional balance. The Genocide Convention
will further exacerbate the growing strains in the American po-
litical system.

CONCLUSION: TREATIES, EXECUTIVE AGREEMENTS, AND INTERNATIONAL LAW:
PRESENT COMPLEXITIES AND FUTURE CONCERNS

a number of landmark decisions (ie. -Reid v. Covert) indicate that
the judicial branch has the power to do so. Treaties and conven-
tions, like statutes, are to be construed reasonably and their
words are to be interpreted in their ordinary meaning. When a
treaty lends itself to a dual interpretation, the broader view
79
of the rights of the parties is to be preferred. Although there
seems to be no precise pronouncement on the subject, since there
is a strong presumption of constitutionality with respect to acts
of Congress, it is reasonable to assume in the light of historical
80
experience that the same applies to treaties.

The role of international law in domestic U.S. litigation has
Thomas Jefferson warned

always been a matter of some controversy.

81

In

from Paris, during late December 1787, that international law
should not become the basis for trials in the United States.
contrast, the most sweeping claim imaginable for the role of inter-
national law in U.S. municipal jurisprudence was put forward by
Justice Chase at the time of the Jay Court, in the landmark case,
Ware v. Hylton (1796). Chase's notion that international law im-
posed obligations on all courts, state and federal, and upon all
82
citizens, was not only pure dicta, but was also ill-founded.
The succeeding Marshall Court rejected this approach, emphasizing
instead the importance of federal statute. After more than a decade
on the nation's highest bench, Marshall conceded in Thirty Hogsheads
of Sugar v. Boyle (1815) that the law of nations is in part unwrit-
ten, and in part conventional

[Its] principles will be differently understood by different
nations under different circumstances
The decisions of the
Courts of every country, so far as they are founded upon a law
common to every country, will be received, not as authority, but
83
with respect.

Two piracy cases, a little more than midway during Marshall's long tenure on the Court, highlight the careful analysis by Marshall and Justice Story of the connective links between international law and international criminality. In United States v. Palmer (1818), the U.S. government maintained that without a prior statute, there could be no definition and punishment of so-called international crime. The law of nations merely created the offense. Its prosecution and punishment depends upon the exercise of domestic jurisdic84

going on to point out the fundamental importance of specificity and 85 precision of language in drafting statutory crimes. In United States v. Smith (1820), Justice Story reaffirmed the Marshall analysis. Offenses against customary international law, Story observed, "cannot, with any accuracy, be said to be completely ascertained and defined in any public code recognized by the common consent of nations. In respect, therefore, as to offenses against the

law of nations, there is a peculiar fitness in giving the power to define as well as to punish. . . .„86 Thus, "[t]o define piracies;" in the sense of the constitution, is merely to enumerate the crimes 87 which shall constitute piracy;" and to include their elements. The bottom line for piracy and for all other international crimes falling within U.S. domestic jurisdiction is that the law of nations 88 cannot of itself "form a rule of action". This is still the law today with respect to any act internationally proscribed by custom, treaty, or convention.

It is the common wisdom among legal scholars that the Paquete Habana case (1900), in its description of the role of international law, has made the law of nations part of American legal doctrine: "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 88 for their determination." One well-respected contemporary commentator interprets this to mean that international law is in

90

fact "part of 'the law of the land."89 Another prestigious analyst goes even further, flatly stating that customary international law "is directly incorporable" into the American legal process. Small wonder that following the Nuremberg Judgment, and just prior to the U.N. approval of the Genocide Convention, a distinguished American legalist would write that "[i]nternational law has imposed obligations on states to punish certain acts committed in their territory, punishment of which is primarily an interest of other states or of 91 the community of nations. If this was true, then approv

ing the Genocide Convention would be merely symbolic, since its

92

94

The reality of the American system is best reflected in the sharp-edged dicta of a 1925 Connecticut federal district court: "International practice is law only in so far as we adopt it, and like all common or statute law it bends to the will of Congress."93 But in 1980, using Ware v. Hylton, United States v. Smith, the Paquete Habana, and a single sentence in The Nereide (1815), Judge Irving Kaufman of the Second Circuit Court of Appeals, taking a dramatic departure from existing practice, claimed that all U.S. courts are indeed bound by the prevailing rules of international law. Kaufman's opinion in Filartiga v. Pena-Irala (1980) has become a rallying point for those who would make the U.N. Charter (1945), the Universal Declaration of Human Rights (1948), the Genocide Convention (1948), the two International Covenants on Civil, Political, Social, Economic, and Cultural Rights (1966), and the Convention on the Elimination of All Forms of Racial Discrimina95 tion (1966) self-executing in American law.

Figlartia creatively asserts that U.S. law is subject not only to the U.N. Charter, but also to all relevant human rights 96 instruments. It adds the ringing statement that "[f]ederal jur

„96

What

isdiction over cases involving international law is clear. is not clear is whether Kaufman is also implying that the violation of human rights have a quasi-criminal status in American courts. A resounding denial is offered by two opinions in the three-judge per curiam decision of the D.C. federal appellate court in Tel-Oren v. Libyan Arab Republic (1984). Both Judge Bork and Judge Robb take strong exception to the language and holding of Figlartia. Bork not only claims that the Figlartia case, if generally followed, would make all U.S. treaties self-executing, but also bluntly declares that the complaints found in Tel-Oren and Figlartia "were beyond the

framers' contemplation."99 Robb is even more critical: "the case appears to me to be fundamentally at odds with the reality of the international structure and with the role of United States courts

within that structure."100

In sum,

the law is still not clear and convincing over the application of quasi-criminal proscriptions by way of treaty and conThe nature of the instrument is often self-executing, while

101

treaties can consist of executory and self-executing provisions. It may also very well be that an analogy may be drawn by future courts between the theory of international torts and the theory of international criminal law, which will once again stretch the Constitution beyond the intention of the framers. A distinguished international lawyer and legal academic has cautioned that "it is more fitting for the political branches to state United States viewpoints on human rights internationally then for the courts to do so unnecessarily.

..102

The

The Genocide Convention will have the effect, if it is ratified, of refashioning U.S. municipal law by utilizing what appears to be a valid legal instrument, but which is actually burdened by a misleading and misguided orientation, however noble its stated purpose. The key provisions of the Genocide Convention are domestic rather than international in their essential characteristics. real consequences of its implementation could be far worse than the prevention sought. Approval by the United States Senate will create more problems than the Convention will lay to rest. To date, the Genocide Convention has resolved nothing in a world filled with oppressive mass-murdering regimes. There is no reason to believe, in this regard, the future will be any different than the past.

103

FOOTNOTES

1.

Adopted Dec. 9, 1948; 78 U.N.T.S. 277; Entered into force, Jan. 12, 1961, hereinafter cited as Genocide Convention.

2.

For a short history of the five different hearings held on the Genocide Convention and their result, see International Convention on the Prevention

and Punishment of the Crime of Genocide, S. EXC. REP. 98-50 (Comm. For. Rels.), 98th Cong., 2d Sess. (Sept. 1984), at 2-7, hereinafter cited as FOR. RELS. REPT. (1984).

3.

Cf., L. KUPER, GENOCIDE: ITS POLITICAL USE IN THE TWENTIETH CENTURY (1981); The Genocide and Humanicide Symposium, 8 OHIO N. U. L. REV. 299 (1981); U.S.