David L. Sloss

International Law in Domestic Courts

This is a draft chapter that has been accepted for publication by Edward Elgar Publishing in the forthcoming book Handbook on the Politics of International Law, Wayne Sandholtz and Christopher A. Whytock, editors.Traditional accounts of international law in domestic courts focus on the distinction between monist and dualist legal systems. In monist systems, courts apply international law directly. In dualist systems, direct application is not an option, so courts apply international law indirectly, or not at all. Although this account is formally correct, it tells us very little about the functional role of domestic courts in the international legal system. In this chapter, we present a functional account that focuses on the distinctions among horizontal, vertical, and transnational legal obligations. Modern international law regulates horizontal relationships between states, vertical relationships between states and private parties, and transnational relationships between private parties whose interactions cross state lines. The role of domestic courts in interpreting and applying international law varies greatly, depending on whether the international rule at issue is horizontal, vertical, or transnational.We demonstrate in this chapter that the willingness (or ability) of courts to apply international law — that is, the decision that a particular issue is “legal” as opposed to “political” — depends heavily on the nature of the international legal rule. Domestic courts rarely interpret or apply horizontal rules. Indeed, they often refer to treaties that regulate solely the horizontal relationship between states as “political” in nature. As a result, implementation of horizontal obligations typically involves executive, not judicial action. This is true for both monist and dualist states. In contrast, domestic courts routinely interpret and apply transnational rules, and executive branch officials play little or no role in implementing such rules. (Purely private law treaties such as the Convention on Contracts for the International Sale of Goods provide a clear example.) Again, this is true for both monist and dualist states.It is more difficult to generalize about the role of domestic courts in interpreting and applying vertical rules, such as human rights treaties. However, the classic monist-dualist distinction does a poor job of explaining why domestic courts in some countries apply vertical rules aggressively, while domestic courts in other countries are reluctant to apply vertical (international) rules to regulate the conduct of government officers. It is in this dimension, therefore, that we seek to draw special insights into how particular political relationships may affect the willingness of domestic courts to implement international law in domestic law, and to effect legal change on their own initiative.This chapter draws on materials from approximately two dozen countries to present an account of the role of domestic courts in interpreting and applying horizontal, transnational, and vertical international legal rules.

Treaty Enforcement in Domestic Courts: A Comparative Analysis

This is the introductory chapter for a book that presents a comparative analysis of the role of domestic courts in treaty enforcement. The book examines the application of treaties by domestic courts in twelve countries: Australia, Canada, China, Germany, India, Israel, the Netherlands, Poland, Russia, South Africa, the United Kingdom and the United States. The central question addressed in each of the twelve country chapters is this: do domestic courts provide remedies to private parties who are harmed by a violation of their treaty-based primary rights? In brief, the most significant conclusions that emerge from this study are as follows: 1. Domestic courts in eight of the twelve countries examined in this volume -- Australia, Canada, Germany, India, the Netherlands, Poland, South Africa and the United Kingdom -- generally do enforce treaty-based rights on behalf of private parties. On the other hand, the evidence is somewhat mixed for the other four countries: China, Israel, Russia and the United States. 2. In China, Israel and Russia, the trends are moving in the direction of greater judicial enforcement of treaties on behalf of private parties. The United States is the only country studied in this volume where the trends are moving in the opposite direction. 3. The conventional wisdom is wrong, insofar as the conventional wisdom holds that direct judicial application of treaties is a more effective means of treaty enforcement than indirect application. In countries such as Canada and India, where domestic law precludes direct application of treaties, domestic courts play an active role in treaty enforcement by applying treaties indirectly. In contrast, in the United States and China, for example, although domestic courts have the authority to apply treaties directly in some cases, they rarely utilize their judicial power to remedy treaty violations committed by government actors.

The right to choose how to die: a constitutional analysis of state laws prohibiting physician-assisted suicide.

Physician-assisted suicide (PAE) is an emotionally charged issue that state legislators struggle with more and more each year. In this note, David Sloss examines whether the right to voluntary PAE is protected by the Due Process Clause of the Fourteenth Amendment. Mr. Sloss argues that all competent, terminally ill patients have a fundamental right to die with dignity. He concludes that no state should place a substantial obstacle, or undue burden, in the path of a competent patient with an objectively rational desire to die.

International law in the U.S. Supreme Court : continuity and change

Part I. From the Founding to the Civil War: 1. International law in the Supreme Court, 1789-1860 David L. Sloss, Michael D. Ramsey and William S. Dodge Part II. From the Civil War to the Turn of the Century: 2. Treaties in the Supreme Court, 1861-1900 Duncan B. Hollis 3. Customary international law in the Supreme Court, 1861-1900 David J. Bederman 4. International law as an interpretive tool in the Supreme Court, 1861-1900 Thomas H. Lee and David L. Sloss 5. A social history of international law: historical commentary, 1861-1900 John Fabian Witt Part III. From the Turn of the Century to World War II: 6. Treaties in the Supreme Court, 1901-45 Michael P. Van Alstine 7. Customary international law in the Supreme Court, 1901-45 Michael D. Ramsey 8. International law as an interpretive tool in the Supreme Court, 1901-45 Roger P. Alford 9. Varieties and complexities of doctrinal change: historical commentary, 1901-45 Edward A. Purcell, Jr Part IV. From World War II to the New Millenium: 10. Treaties in the Supreme Court, 1946-2000 Paul B. Stephan 11. Customary international law in the Supreme Court, 1946-2000 William S. Dodge 12. International law as an interpretive tool in the Supreme Court, 1946-2000 Melissa A. Waters 13. Global power in an age of rights: historical commentary, 1946-2000 Martin S. Flaherty Part V. International Law in the US Supreme Court in the Twenty-First Century: 14. Medellin and Sanchez-Llamas: treaties from John Jay to John Roberts Lori F. Damrosch 15. Sosa and the derivation of customary international law John O. McGinnis 16. International law and constitutional interpretation in the twenty-first century: change and continuity Mark Tushnet 17. Empagrans empire: international law and statutory interpretation in the US Supreme Court of the twenty-first century Ralf Michaels 18. The Supreme Court, the war on terror, and the American just war constitutional tradition David Golove.

The Death of Treaty Supremacy: An Invisible Constitutional Change

This book provides the first detailed history of the Constitution’s treaty supremacy rule. It describes a process of invisible constitutional change that has previously escaped the notice of historians and legal scholars. The traditional supremacy rule provided that all treaties supersede conflicting state laws; it precluded state governments from violating U.S. treaty obligations. Before 1945, treaty supremacy and self-execution were independent doctrines. Supremacy governed the relationship between treaties and state law. Self-execution governed the division of power over treaty implementation between Congress and the President. In 1945, the United States ratified the UN Charter, which obligates nations to promote human rights “for all without distinction as to race.” In 1950, a California court applied the Charter’s human rights provisions and the traditional treaty supremacy rule to invalidate a state law that discriminated against Japanese nationals. The implications were shocking: the decision implied that the United States had effectively abrogated Jim Crow laws throughout the South by ratifying the UN Charter. In response, conservatives mobilized support for a constitutional amendment, known as the Bricker Amendment, to abolish the treaty supremacy rule. The amendment never passed, but Bricker’s supporters achieved their goals through de facto constitutional change. The de facto Bricker Amendment created a novel exception to the treaty supremacy rule for non-self-executing (NSE) treaties. The NSE exception permits state governments to violate NSE treaties without authorization from the federal political branches. The transformation of the treaty supremacy rule has significant implications for federal supremacy, U.S. foreign policy, and U.S. compliance with its treaty obligations.

International Law in the U.S. Supreme Court: INTERNATIONAL LAW AND STATUTORY INTERPRETATION AFTER 2000

Part I. From the Founding to the Civil War: 1. International law in the Supreme Court, 1789-1860 David L. Sloss, Michael D. Ramsey and William S. Dodge Part II. From the Civil War to the Turn of the Century: 2. Treaties in the Supreme Court, 1861-1900 Duncan B. Hollis 3. Customary international law in the Supreme Court, 1861-1900 David J. Bederman 4. International law as an interpretive tool in the Supreme Court, 1861-1900 Thomas H. Lee and David L. Sloss 5. A social history of international law: historical commentary, 1861-1900 John Fabian Witt Part III. From the Turn of the Century to World War II: 6. Treaties in the Supreme Court, 1901-45 Michael P. Van Alstine 7. Customary international law in the Supreme Court, 1901-45 Michael D. Ramsey 8. International law as an interpretive tool in the Supreme Court, 1901-45 Roger P. Alford 9. Varieties and complexities of doctrinal change: historical commentary, 1901-45 Edward A. Purcell, Jr Part IV. From World War II to the New Millenium: 10. Treaties in the Supreme Court, 1946-2000 Paul B. Stephan 11. Customary international law in the Supreme Court, 1946-2000 William S. Dodge 12. International law as an interpretive tool in the Supreme Court, 1946-2000 Melissa A. Waters 13. Global power in an age of rights: historical commentary, 1946-2000 Martin S. Flaherty Part V. International Law in the US Supreme Court in the Twenty-First Century: 14. Medellin and Sanchez-Llamas: treaties from John Jay to John Roberts Lori F. Damrosch 15. Sosa and the derivation of customary international law John O. McGinnis 16. International law and constitutional interpretation in the twenty-first century: change and continuity Mark Tushnet 17. Empagrans empire: international law and statutory interpretation in the US Supreme Court of the twenty-first century Ralf Michaels 18. The Supreme Court, the war on terror, and the American just war constitutional tradition David Golove.

International Law in the U.S. Supreme Court: Acknowledgments

Part I. From the Founding to the Civil War: 1. International law in the Supreme Court, 1789-1860 David L. Sloss, Michael D. Ramsey and William S. Dodge Part II. From the Civil War to the Turn of the Century: 2. Treaties in the Supreme Court, 1861-1900 Duncan B. Hollis 3. Customary international law in the Supreme Court, 1861-1900 David J. Bederman 4. International law as an interpretive tool in the Supreme Court, 1861-1900 Thomas H. Lee and David L. Sloss 5. A social history of international law: historical commentary, 1861-1900 John Fabian Witt Part III. From the Turn of the Century to World War II: 6. Treaties in the Supreme Court, 1901-45 Michael P. Van Alstine 7. Customary international law in the Supreme Court, 1901-45 Michael D. Ramsey 8. International law as an interpretive tool in the Supreme Court, 1901-45 Roger P. Alford 9. Varieties and complexities of doctrinal change: historical commentary, 1901-45 Edward A. Purcell, Jr Part IV. From World War II to the New Millenium: 10. Treaties in the Supreme Court, 1946-2000 Paul B. Stephan 11. Customary international law in the Supreme Court, 1946-2000 William S. Dodge 12. International law as an interpretive tool in the Supreme Court, 1946-2000 Melissa A. Waters 13. Global power in an age of rights: historical commentary, 1946-2000 Martin S. Flaherty Part V. International Law in the US Supreme Court in the Twenty-First Century: 14. Medellin and Sanchez-Llamas: treaties from John Jay to John Roberts Lori F. Damrosch 15. Sosa and the derivation of customary international law John O. McGinnis 16. International law and constitutional interpretation in the twenty-first century: change and continuity Mark Tushnet 17. Empagrans empire: international law and statutory interpretation in the US Supreme Court of the twenty-first century Ralf Michaels 18. The Supreme Court, the war on terror, and the American just war constitutional tradition David Golove.

International Law in the U.S. Supreme Court: CUSTOMARY INTERNATIONAL LAW AFTER 2000

Part I. From the Founding to the Civil War: 1. International law in the Supreme Court, 1789-1860 David L. Sloss, Michael D. Ramsey and William S. Dodge Part II. From the Civil War to the Turn of the Century: 2. Treaties in the Supreme Court, 1861-1900 Duncan B. Hollis 3. Customary international law in the Supreme Court, 1861-1900 David J. Bederman 4. International law as an interpretive tool in the Supreme Court, 1861-1900 Thomas H. Lee and David L. Sloss 5. A social history of international law: historical commentary, 1861-1900 John Fabian Witt Part III. From the Turn of the Century to World War II: 6. Treaties in the Supreme Court, 1901-45 Michael P. Van Alstine 7. Customary international law in the Supreme Court, 1901-45 Michael D. Ramsey 8. International law as an interpretive tool in the Supreme Court, 1901-45 Roger P. Alford 9. Varieties and complexities of doctrinal change: historical commentary, 1901-45 Edward A. Purcell, Jr Part IV. From World War II to the New Millenium: 10. Treaties in the Supreme Court, 1946-2000 Paul B. Stephan 11. Customary international law in the Supreme Court, 1946-2000 William S. Dodge 12. International law as an interpretive tool in the Supreme Court, 1946-2000 Melissa A. Waters 13. Global power in an age of rights: historical commentary, 1946-2000 Martin S. Flaherty Part V. International Law in the US Supreme Court in the Twenty-First Century: 14. Medellin and Sanchez-Llamas: treaties from John Jay to John Roberts Lori F. Damrosch 15. Sosa and the derivation of customary international law John O. McGinnis 16. International law and constitutional interpretation in the twenty-first century: change and continuity Mark Tushnet 17. Empagrans empire: international law and statutory interpretation in the US Supreme Court of the twenty-first century Ralf Michaels 18. The Supreme Court, the war on terror, and the American just war constitutional tradition David Golove.

International Law in the U.S. Supreme Court: Contents

Part I. From the Founding to the Civil War: 1. International law in the Supreme Court, 1789-1860 David L. Sloss, Michael D. Ramsey and William S. Dodge Part II. From the Civil War to the Turn of the Century: 2. Treaties in the Supreme Court, 1861-1900 Duncan B. Hollis 3. Customary international law in the Supreme Court, 1861-1900 David J. Bederman 4. International law as an interpretive tool in the Supreme Court, 1861-1900 Thomas H. Lee and David L. Sloss 5. A social history of international law: historical commentary, 1861-1900 John Fabian Witt Part III. From the Turn of the Century to World War II: 6. Treaties in the Supreme Court, 1901-45 Michael P. Van Alstine 7. Customary international law in the Supreme Court, 1901-45 Michael D. Ramsey 8. International law as an interpretive tool in the Supreme Court, 1901-45 Roger P. Alford 9. Varieties and complexities of doctrinal change: historical commentary, 1901-45 Edward A. Purcell, Jr Part IV. From World War II to the New Millenium: 10. Treaties in the Supreme Court, 1946-2000 Paul B. Stephan 11. Customary international law in the Supreme Court, 1946-2000 William S. Dodge 12. International law as an interpretive tool in the Supreme Court, 1946-2000 Melissa A. Waters 13. Global power in an age of rights: historical commentary, 1946-2000 Martin S. Flaherty Part V. International Law in the US Supreme Court in the Twenty-First Century: 14. Medellin and Sanchez-Llamas: treaties from John Jay to John Roberts Lori F. Damrosch 15. Sosa and the derivation of customary international law John O. McGinnis 16. International law and constitutional interpretation in the twenty-first century: change and continuity Mark Tushnet 17. Empagrans empire: international law and statutory interpretation in the US Supreme Court of the twenty-first century Ralf Michaels 18. The Supreme Court, the war on terror, and the American just war constitutional tradition David Golove.

International Law in the U.S. Supreme Court: Continuity and Change over Two Centuries

From its earliest decisions in the 1790s, the U.S. Supreme Court has used international law to help resolve major legal controversies. This book presents a comprehensive account of the Supreme Court’s use of international law from the Court’s inception to the present day. Addressing treaties, the direct application of customary international law, and the use of international law as an interpretive tool, this book examines all the cases or lines of cases in which international law has played a material role, showing how the Court’s treatment of international law both changed and remained consistent over the period. Although there was substantial continuity in the Supreme Court’s international law doctrine through the end of the nineteenth century, the past century has been a time of tremendous doctrinal change. Few aspects of the Court’s international law doctrine remain the same in the twenty-first century as they were two hundred years ago.