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THE ATTITUDE OF THE UNITED STATES TOWARD INTERNATIONAL LAW
briefly about the relevance of international law in the United States Declaration of
Independence and the place of international law in the American legal system.
2. International Law and the U.S. Declaration of Independence
Upon becoming a new sovereign nation in 1776, the United States had to
invoke international law and the criteria international law establishes for becoming
an independent nation. The United States had to accept the sovereignty of existing
nations, accept the principles of sovereign equality of states, non-intervention, the
right to self-defense, freedom of the seas, diplomatic relations with other states,
the right to self-determination, and sovereign immunity for other states and their
officials, the Act of State Doctrine, freedom to trade with other nations, respect
for international law and the right to neutrality. In its formative years the United
States was a strong advocate for international law in order to gain recognition from
other states as an equal member of the community of nations.
1
Indeed, the leaders
of the American Revolution had to recognize the existence of international law in
order to win recognition for their new nation as an equal in the family of nations.
2
Denying the existence of international law would have deprived the United States of
its international legal personality as a sovereign and independent state.
The Founding Fathers and the Framers of the Constitution were keenly aware of
the relevance of international law in framing the Declaration of Independence, and
they relied on the writings of European legal scholars and philosophers for guidance
for the kind of constitution and system of government they wanted to construct.
3
Their system was one based on the rule of law instead of men. The concepts of
Checks and Balances and Separation of Powers were at the center of the new system
of government they wanted to establish. The rights of the individual also featured
prominently in the minds of the framers of the new constitutional order. The Bill
of Rights, the first ten amendments of the constitution, were not invented by the
United States but rather are shared concepts referenced in the writings of many
European philosophers and incorporated in the legal traditions of European nations.
The United States Constitution basically universalized these rights to make them
applicable to all peoples and not just the nobility, as was the case in Europe.
The Constitution makes specific references to international law in Article I,
Section 8, in which it grants Congress the power to declare war, to regulate commerce
between nations, and to punish piracy and violations of the law of nations, and to issue
letters of marque. In Article II, Section 2 it gives power to the President to negotiate
treaties, and send and receive ambassadors. In Article III, Section 1 it grants power to
the Supreme Court to adjudicate cases arising under treaties, affecting ambassadors,
1
See
Paul, R. Dubinsky’s chapter: “
United State,”
in Dinah Shelton, ed. International Law and Domestic
Legal Systems (2011), p. 635.
2
Harold Hongju Koh,
International Law as Part of Our Law,
98 AJIL, 43, 44 (2004).
3
Jules Lobel,
The Limits of Constitutional Power: Conflicts Between Foreign Policy and International Law
,
71 VA. L. Rev, 1073, (Oct. 1985).