Published in European Journal of International Law, 9(4):765-767, 1998.
Cite as: Deflem, Mathieu. 1998. Review of ‘International Law as Law of the United States,’ by Jordan J. Paust. European Journal of International Law 9(4):765-767.
In International Law as Law of the United States, Professor Jordan Paust has brought together in one volume fifteen papers debating the relationship between international and national systems of legality, specifically as it pertains to the laws of the United States in confrontation with those of the international community. All but one of the book’s chapters are revised from previously published articles, which brings some lack of coherence to the volume, additionally so because some of the chapters are very short, others more lengthy, and because the book lacks a separate Conclusion. Yet, this is less troublesome inasmuch as Paust’s work is placed in the best tradition of those scholarly books that make the strongest possible case for an argument by reiterating one thesis over and over again, demonstrating how the it applies to various related dimensions of a core focus of concern. It may here suffice to briefly outline Professor Paust’s main argument and to illustrate its import for a selected number of issues of international law.
The basic contention of Professor Paust’s book is that the principles and dictates of international law are directly incorporable in United States law. One of the main arguments for this thesis is Paust’s conviction that the Founders explicitly declared the law of nations to be part of the law of the land. International law, in other words, is according to Professor Paust factually incorporated in the U.S. legal system though its embodiment in the Constitution. This claim is carefully documented through detailed textual analyses of the U.S. Constitution, judicial judgments, and executive decisions and congressional legislations, the latter two of which Paust mostly criticizes when and because they are at odds with the incorporation argument.
Among the consequences of the claim that the mandates flowing from international treaties are supreme federal law, Paust argues, is that customary international law is not unavoidably in clash with the laws of the land. Therefore, certain legal notions intended to provide some form of conditionality to the incorporation principle (such as the distinction between self-executing and non-self-executing treaties and the principle of last-in-time rule in the case of a clash between international and federal laws) are invalid. For example, Paust suggests, the very fact that human rights are inalienable invalidates any additional considerations over their applicability and debunks legislative superiority in the case of a clash with principles of international legality informed by human rights.
Professor’s Paust argument has weighty implications, not just for the interdependence between U.S. and international law, but also for the relationships between the three branches of U.S. government. Paust defends most strongly the claim that the executive branch is bound by international law and must be held accountable when it acts in violation of international law. This places above all the President in confrontation with congressional and judicial control. Thus, for instance, Paust laments Presidential proclamations that maintain reservations about, or seek to enact exceptions to, the implementation of international treaties (e.g., the granting of Presidential pardons to violators of international law). Yet, additionally, Paust is also critical of congressional legislative activities that seek to circumvent the spirit of international law. Here, Paust contends, the courts play a special role, particularly in protecting citizens from violations of international legal principles by the legislative and executive branches of government. Finally, on the basis of the same argument Paust also criticizes the implementation procedures of certain policies. Specifically, he is critical of the practice of denaturalizing and deporting alleged Nazi war criminals, whom he feels should be treated as suspects of international criminal law and hence should be prosecuted as such. As international law is characterized by universal jurisdiction, the United States government also has a universal duty to enforce the law of nations.
This is a very solidly argued and well-documented book, but not every scholar of international law will be swayed by Professor Paust’s argument. Of the possible criticisms against this book, I suspect, some may revolve around Paust’s unnecessarily strong and overburdened conception of international law. Most clearly in the opening chapter of the book, Professor Paust appears to be defending an essentialist conception of international common law, i.e. a perspective that posits international law as a steady factor, not determined by elites, states, or other elements of force and whim, but directly and fully reflecting the common will of all. Writes Paust, "customary law of nations is human law" and, therefore, "each nation-state, indeed each human being, is a participant in...customary international law" (pp. 1, 3). It seems to me that this argument is either naive and optimistic, consciously or not concealing any of the forces involved in the creation of that which actually passes for internationally binding law, or idealistic and misguided, in that it presupposes a concept of universally legitimated international law manifested in existing systems of international law. It is one thing to argue, as Paust correctly does, that the Supreme Court and other judicial authorities defend a conception of international law as reflecting the general consent of all people, but it is an altogether different matter to suggest that this is also what international law actually is. Such a concept of international law confuses the perspective of the participant with the perspective of the observer. Relatedly, Paust occasionally defends a moral attitude on the basis of a common international humanity so vigorously that he fails to uncover the dynamics of factual national resistance. And if perhaps a more idealized understanding of international common law is implied (as a standard of critique for existing law), it should be clear that both national as well as international legal systems would have to be scrutinized.
Yet, despite my reservations, one cannot but appreciate Professor Paust’s commitment to retain a universal respect for rights and a common humanity in light of, and indeed often in spite of, national legislations and executive decision-making. After reading this book, few scholars of international law will wish to defend their positions on related matters without taking into account Professor Paust’s eloquently formulated arguments.