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Act
are just a few prominent examples of instances of statutes passed by Congress
that have extraterritorial implications.
29
These laws are adopted without taking into
consideration the international repercussion. In some case, however, these laws help
enforce international law, or they provide the framework for foreign governments
to adopt similar laws of their own. The Dodd-Frank Act, FATCA and the FCPA
have all been replicated in some fashion by foreign governments or international
institutions.
30
The president usually has to negotiate with foreign nations on the
scope and modality of these acts and may choose not to comply with them if the
acts conflict with United States national security interest. These acts sometimes make
the president’s task in foreign affairs more difficult, and they often tie the president’s
hands when he negotiates with foreign governments. The Senate, which plays
a crucial role in the treaty ratification process, has also objected to committing the
U.S. to international treaty obligations, especially if they conflict with U.S. domestic
law.
31
The Senate usually attaches reservations or understandings to all treaties, which
may give a different meaning to the treaties in domestic law.
32
The Senate has a very
poor record when it comes to ratification of human rights treaties.
33
3. The United States and the Development of Modern International Law
The United States can be considered one of the leading contributors to international
law. Its contributions cut across ideological and political boundaries, and have impacted
all aspects of international legal development. The United States’ own political system is
based on constitutional law over the rule of the king. Notwithstanding its long standing
commitment to international law, the United States has always been apprehensive or
ambivalent toward international law for fear that its international legal obligations
may constrain its ability to project its power abroad or to defend its national
sovereignty from external threats. This suspicion of international law or the fear of
other nations has shaped the U.S. attitude toward international law.
The United States played a crucial role in the creation of the League of Nations
and the United Nations and its network of Specialized Agencies that make up the
United Nations system.
34
Although the idea of a League of Nations came from
President Wilson, the United States ultimately did not join the League of Nations
because of opposition in the Senate, where some members were concerned U.S.
29
For an analysis of the scope of U.S. extraterritorial jurisdiction,
see
Curtis A. Bradley, International Law
in the U.S. Supreme Court (2013), pp. 167-196.
30
See
OECD Anti-bribery Convention and the United Nations’ Anti-Corruption Convention are two
examples of international treaties that were modeled on U.S. domestic legislation.
31
See
Rosemary Foot,
Credibility at Stake: Domestic Supremacy in U.S. Human Rights Policy,
in David
Malone & Yuen Foong Khong, eds. Unilateralism and U.S. Foreign Policy (2003), pp. 41-70.
32
See
Catherine Redgwell,
US reservations to human rights treaties:
all for one and none for all?, in Michael
Byers & Georg Nolte, eds., United States Hegemony and the Foundation of International Law, (2003),
pp. 392-415.
33
See Treaties and International Agreements: The Role of the United States Senate
(Congressional Research
Service, Library of Congress, ed.), 2001, pp. 266-9.
34
E. Luard,
A History of the United Nations
, 18 (1982).