Prof. Franck writes: "Jay never refers in Federalist no. 4 to the "Treaty of Union" establishing the United Kingdom, which by the way is known and has always been known as the Act of Union--no small difference."
Comment: Oops, I meant to say (as I did in my previous post) Federalist No. 5. The "Treaty of Union" is different from the "Act of Union." Before 1706 (the date of the Treaty of Union's adoption), England and Scotland were separate states. Therefore, a treaty was needed to unite the English and Scottish states and consolidate their peoples into one British nation. In a typical treaty-making process, the Treaty of Union was negotiated and adopted by commissioners (English and Scottish). The "Act of Union" was the act of parliament "ratifying and approving treaty of the two kingdoms of Scotland and England" (to use the language of the Act) in 1707.
Prof. Franck continues: "I'm sorry I missed the fact that Prof. Martin referred not to Federalist no. 75 but to "Anti-Federalist no. 75," which he now identifies as written by a "Hampden." But I'm at a loss. There is but one "Hampden" in Storing's Complete Anti-Federalist (which admittedly is not as "complete" as its title claims)--a Massachusetts man whose two essays have nothing to do with the subject at hand. Can Prof. Martin provide more informmation on who/what/where this essay is?"
Comment: "Hampden" was a pseudonym. The author is unknown. Anti-Federalist No. 75 appeared in the Pittsburgh Gazette (15 Feb. 1788).
Prof. Franck continues: "I still don't see Prof. Martin's point about the relevance of Ware v. Hylton."
Comment: My citation of Ware v. Hylton was just to point out the obvious -- that the Supreme Court recognized that customary international law is evolving -- not an important or controversial point bby itself. Its importance is that it accommodates the concept of an evolving constitution because if the Constitution is a treaty and treaties are to be construed according to customary international law, then the meaning of the Constitution is evolving.
Prof. Franck continues: "But he makes two points I'll reply to. First, he writes: "Treaties . . . are evidence of customary international law for a number of reasons (depending on the instrument); hence, customary international law is part of the supreme law of the land." This is strange logic. Any treaty the U.S. ratifies is part of the supreme law of the land, and if that treaty embodies certain principles of "customary international law" (such as the Geneva Conventions on the laws of war), then those principles too become binding law here. But treaties we do NOT ratify, and the "evidence" they contain of customary international law, cannot bind."
Comment: The fact that the U.S. has not ratified a treaty (reflecting customary international legal obligations) is not dispositive of whether the treaty is evidence of customary international legal obligations for the U.S. As I stated earlier, there are a number of reasons for this depending on the treaty involved. Let's take the ECHR as an example. The ECHR (1953) was based on the Universal Declaration of Human Rights (whose provisions were accepted by the U.S. in 1948). The ICCPR (1976) was based on the ECHR, and the U.S. is a party to the ICCPR. The language of the ECHR is often similar -- if not identical -- to the Universal Declaration and the ICCPR. Hence, both the UN Human Rights Committee and the Eurropean Court of Human Rights often use the other's instrument for construing their instrument, and both use the Universal Declaration to construe their respective instruments, as required by general principles of international law itself. See Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, 1971 I.C.J. Reports 16, 31 (1971) ("an international instrument must be interpreted and applied within the overall framework of the [international] juridical system in force at the time of the interpretation."); Interpretation of the American Declaration of the Rights and Duties of Man within the Framework of Article 64 of the American Convention on Human Rights, Advisory Opinion OC-10/89, Inter-Am. Ct. H.R. Ser. A, No. 10, at ¶ 37 (1989) (same); Coard v. United States, Inter-Am. Cm.H.R., No. 109/99 at ¶ 40 (1999), available at <http://www.cidh.oas.org/annualrep/99eng/Merits/UnitedStates10.951.htm> (last visited 15 Feb. 2003) (same). All three instruments reflect customary international law. The U.S.' customary international legal obligations reflected in the ICCPR are to be construed according to the EC
HR.
Prof. Franck continues: "Prof. Martin appears to hold that merely because the U.S. is a sovereign nation that can sign treaties (which would not be so, by the way, if the Constitution itself WERE a treaty), it is bound by "customary international law" as set forth by tribunals its laws do not recognize as authoritative."
Comment: Let me first address your parenthetical point, that is, the U.S. as a sovereign nation could not sign treaties if the Constitution itself were a treaty. This is incorrect. A perfect example is the U.S. under the Articles of Confederation. The Articles was a treaty, and the Articles provided for the U.S. entering into treaties with foreign states. As to your main point . . . What I am saying is that the U.S. is bound by customary international law, strong (but not necessarily dispositive) evidence of which is provided by treaties to which it is not a party and by international tribunals interpreting treaties to which the U.S. may or may not be a party. Whether such customary international legal norms are legally binding on the U.S. depends on whether the U.S. has made a persistent objection to the norms when they were emerging, according to international law.
Prof. Franck continues: "I gather that is his opinion from this as well: "It does not matter whether the U.S. is a party to the ECHR for the ECHR to be evidence of the U.S.' customary international legal obligations," obligations that he then goes on to describe as "binding on the federal government and the states." This entirely vitiates the treaty clauses in the U.S. Constitution, for what then becomes of the freedom of the president and the Senate to negotiate and ratify some treaties and not others? By Prof. Martin's logic, the United States ceases entirely to be a self-governing republic, subject instead (through the medium of its courts) to being ruled by the opinions of extraterritorial legal elites."
Prof. Franck continues: "I gather that is his opinion from this as well: "It does not matter whether the U.S. is a party to the ECHR for the ECHR to be evidence of the U.S.' customary international legal obligations," obligations that he then goes on to describe as "binding on the federal government and the states." This entirely vitiates the treaty clauses in the U.S. Constitution, for what then becomes of the freedom of the president and the Senate to negotiate and ratify some treaties and not others? By Prof. Martin's logic, the United States ceases entirely to be a self-governing republic, subject instead (through the medium of its courts) to being ruled by the opinions of extraterritorial legal elites."
Comment: My claims do not vitiate the treaty clauses of the Constitution. Indeed, the U.S.' failure to sign a treaty or the U.S.' reservation to a treaty that it does ratify signifies its objection to an emerging customary international legal norm, and under the persistent objector rule in international law, the U.S. is not bound by the treaty or the particular treaty norm of which it made a reservation. The treaty clause is essential to ensuring that the U.S. is not bound by customary international legal norms that are emerging among other states and that the U.S. does not accept.
Finally, can anyone point to anything in the Constitution's text or other founding documents reflecting the original public understanding of the Constitution that says the Constitution was not a treaty?
Francisco Forrest Martin
