Is the war about to happen illegal?

[chula]

FYI, Nanu has started a thread on the question of ICJ jurisdiction.

http://boards.straightdope.com/sdmb/showthread.php?s=&threadid=171835

[Age_Quod_Agis]

chula:
The U.S. Constitution seems to regard international law as real, and the “supreme law of the land” no less. (See Article VI.)

IAAIL (or will be very soon), and I don’t think there’s any question among international lawyers that this war violates the UN Charter and customary international law.

All due deference to your international law qualifications (I’m merely a commercial litigator with some experience in Constitutional matters, which apparently wasn’t good enough in England), but let’s take a look at Article 6:

[quote]

[Age_Quod_Agis]

Sorry, sorry, sorry. Let’s try that again:

Article VI:
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.

Treaties are only valid if made “under the Authority of the United States.” The authority of the United States only extends as far as the Constitution allows it (See e.g. Marbury v. Madison and Martin v. Hunter’s Lessee). So it may be true that treaties trump the prior enactments of Congress and the States, but the Constitution trumps treaties.

In fact, the Constitution can only be amended by a Constitutional Amendment, passed pursuant to one of the methods specified in the Constitution. Luckily, you don’t have to take the word of a mere commercial litigator on this point:

Thomas Jefferson, Manual of Parliamentary Practice:
If the treaty power is unlimited, then we don’t have a Constitution. Surely the President and the Senate cannot do by treaty what the whole government is interdicted from doing in any way.

Alexander Hamilton:
The only constitutional exception to the power of making treaties is, that it shall not change the Constitution… On natural principles, a treaty, which should manifestly betray or sacrifice primary interests of the state, would be null.

The Supreme Court has supported this notion. In Reid v. Covert, 354 U.S. 1 (1957), the Supreme Court ruled that constitutional guarantees cannot be abolished by either treaty or statute, stating: “no agreement with a foreign nation can confer power on Congress, or on any other branch of Government, which is free from the restraints of the Constitution.”

Reid v. Covert:
There is nothing in this language which intimates that treaties and laws enacted pursuant to them do not have to comply with provisions of the Constitution. Nor is there anything in the debates which accompanied the drafting and ratification of the Constitution which even suggests such a result. These debates as well as the history that surrounds the adoption of the treaty provision of Article VI make it clear that the reason treaties were not limited to those made in ‘pursuance’ of the Constitution was so that agreements made by the United States under the Articles of Confederation, including the important treaties which concluded the Revolutionary War, would remain in effect. It would be manifestly contrary to the objectives of those who created the Constitution, as well as those who were responsible for the Bill of Rights — let alone alien to our entire constitutional history and tradition — to construe Article VI as permitting the United States to exercise power under an international agreement without observing constitutional prohibitions.

So the Constitution is the Supreme Law of the Land, not treaties. And as luck would have it, the Constitution sets forth when the US can engage in war.

U.S. Constitution, Article 1, Section 8:
Congress shall have the power . . . To declare War.

So what’s my point? If we’re talking about the legality of war, our analysis of is incomplete without looking at the Constitution. The Constitution says that Congress has the power to declare war. Even if a UN resolution didn’t explicitly authorize war (certainly debatable), Congress passed a declaration of war. To the extent that a UN resolution or a treaty of the US is inconsistent with the Constitution by requiring something different for the US to declare war, the treaty is null and void. Thus, for the US, the war is legal because Congress authorized it.

Whether the war is authorized by the UN is another matter.

[Age_Quod_Agis]

[hijack]

Lamia:
Something that is more clear is that the majority of the international community is opposed to this war, and that counts for a lot in international law. That’s one of the differences between international law and domestic law – it’s not just a matter of what’s written down, but also involves customary practice and international opinion. This makes determining the legality of the upcoming war tricky.

This is one of the things that really scares me about international law – that it’s based on concepts like “international opinion.” There’s no precedent, and thus no means of ensuring that a statute will be interpreted in a reasonable, consistent manner. As long as international law is influenced by opinion polls, I’ll cast my vote against things like the ICC.[/hijack]

[Lamia]

*Originally posted by Age Quod Agis *
**[hijack]This is one of the things that really scares me about international law – that it’s based on concepts like “international opinion.” There’s no precedent, and thus no means of ensuring that a statute will be interpreted in a reasonable, consistent manner. As long as international law is influenced by opinion polls, I’ll cast my vote against things like the ICC.[/hijack] **

International law draws on international opinion and customary law for a reason. Would you rather we had some sort of world government enforcing a rigid, formal code of laws on the nations of the world?

[chula]

Age Quod Agis: I’ve assumed the OP was asking about the legality of the war under international law. I only brought up the Constitution to respond to the contention that international law doesn’t exist. Thanks for your Constitutional analysis - it’s not my specialty.

It’s not accurate to say that international law is based on world opinion polls. Whether and how it’s enforced ends up being political, and politics can be influenced by public opinion, but this does not affect the substance of the law. However, it is based in part on the opinions of legal experts. Along with treaties, customary international law, and general principles of law, “the teachings of the most highly qualified publicists” is one of the sources of law used be the ICJ. In The Paquete Habana, which I quoted above, the U.S. Supreme Court relied on “the works of jurists and commentators.” In some sense, their writings can be seen as replacing judicial decisions, since there is so little case law. The opinions of legal scholars carry much more weight in an international proceeding than the amicus briefs filed in domestic cases. It don’t see this as scary, since it’s a pretty small and defined group of people, who have been recognized in various ways, such as appointments by governments to UN Committees.

I wanted to bring this up anyway to point out that the fact that there is a consensus among international law experts (with a few dissenters) that the war is illegal does not just bolster our arguments but is in fact direct evidence of its illegality. It is almost as if these experts were justices and they’ve ruled 8-1 (really more like 800-100) that the war is illegal. So this debate is already settled!

[erislover]

Randy, you reposted this:

“It does not handcuff the United States,” said National Security Council spokesman Sean McCormack, “but it does provide an avenue for the Security Council to demonstrate its relevance.”

And I think part of the claim is that the UNSC would have demonstrated its irrelevance had the US gone for a second resolution.

[RandySpears]

erislover:

Hm, i’ll admit that my understanding of the subtleties of diplomat lingo is far from perfect…

Then, of course, if the UNSC has no relevance at all, there can be no such thing as a legal or illegal war!