Part of law says you can’t do anything to him because he’s head of state, others might say he’s a prisoner of war

Can the President Violate International Law?

Book p. 289- both Breard and PLO courts were asked to rule upon apparent conflicts between international laegal norms and domestic legislation. But president also has independent constitutional authority as treaty maker, sole organ of he state in foreign affairs and as commander in chief.

What if president acts in a way that conflicts with international law- cites pacquete habana.- bound to apply international law when no controlling executive or legislative act exists

Below case arose out of the detention of Cuban citizens in 1980 on a boat. Pl’s were two groups: (1) those who were guilty of crimes committed in Cuba and some mentally incompetent- this group never paroled into country. (2) all others on boat who were paroled into country but whose paroles were subsequently revokes.

Both groups being detained in the Atlanta penitentiary during case:

Garcia-Mir v. Meese (11^th cir 1986) p. 289

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  Paquete Habana: courts are bound to apply int’l law when no controlling exec or leg act
  
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  Controlling legislative act
  
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    If there is an act of Congress inconsistent with CIL, the act of Congress always prevails; therefore CIL doesn’t have the power of a Constitutional norm, which will always sweep away a conflicting statute
    
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    If int’l norm saying no executions of people who commit crimes when a juvenile, 3:30
    
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  Controlling executive act: this case
  
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  Facts of case
  
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    Cuban refugees who were criminals and people with serious mental illnesses, generally viewed by Americans as being undesirable
    
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    These individuals weren’t given the same rights of residency as were generally accorded to Cuban refugees
    
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    They were in state of limbo for a long time
    
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    For immigration purposes they weren’t admitted to US, but Cuba wouldn’t accept them back
    
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    No other country would take them in
    
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    Held in Atlanta federal penitentiary
    
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  Issues
  
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    Can people be put in prison simply because their request for residency in US has been denied and their country of origin is unwilling to receive them?
    
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    Can administrative determination of Attorney General (Meese) be a controlling executive act in the sense of Paquete Habana, which would override any CIL law argument that could be asserted?
    
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  Wasn’t clear who could make a controlling executive act
  
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    It was clear the President could
    
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    But it must not mean anyone who operates under the apparent authority of US gov
    
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    If so, Paquete Habana itself would have failed, since the fishing vessels were seized by a law enforcement officer of the executive branch
    
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    This case: Attorney General; a significant leader, but lower than Pres
    
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  Court: AG and other cabinet officer’s determinations can be controlling in terms of Paquete Habana; not subject to challenge by CIL
  

Self-Executing Treaties (SEE BOOK- p. 293 notes- for examples and tests on how to tell if a treaty is self executing or not)

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  Only self-executing treaties are “Law of the Land”
  
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  Non-self-executing treaty obligations must be enacted into law by Congress (or otherwise “executed”) in order to have effect in US courts
  

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  British system: all treaties need to be domesticated by an act of parliament
  
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  US diverts from British view, since Constitution says treaties are law of the land; so it opens possibility of treaties automatically having validity in US legal system
  
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  Courts have softened this view considerably by creating doctrine of self-executing treaties
  
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    Only self-executing treaties have this quality of automatically entering the body of US law
    
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    Non-self-executing treaties require Congressional enactment; they create binding int’l obligations, but not any rights within US without subsequent enactment by Congress
    
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  For every treaty, we have to ask if it’s self-executing or not
  
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    Very messy area
    
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    Sometimes it’s clear from the start whether SE or NSE
    
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      Example: Typical US RUD to a multilateral treaty: Understanding that the treaty is NSE; creates int’l obligation, but won’t be part of US domestic law without Congressional enactment
      
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    Sometimes whole classes of treaties are deemed to be SE
    
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      Binational tax treaties in US typically are SE
      
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    Vienna Convention on Consular Affairs (from Breard): SE; courts aren’t searching for a statute in enforcing it
    
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  SE is a US notion
  
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    Dualist state e.g. UK, would say a treaty cannot be SE
    
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    Monist state, e.g. Mexico, would say all treaties are law
    
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    Peculiarly American doctrine to have this middle-ground position
    
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    Other countries have followed this, but USSC created this doctrine
    

Interpretation of Treaties (p. 194-316- skimmed)

Book: p. 294- the basic international legal norms governing treaty interpretation are set out in the Vienna Convention on the Law of Treaties.

Questions also arise frequently in domestic legal systems.

In US some questions of treaty law are governed by the constitution.

- what happens when president and congress disagree over a treaty’s meaning- is president bound by senate, how to tell what a collective body like senate thought.

The questions brought up in 1980s when Executive branch announced a controversial “reinterpretation” of the Treaty on the Limitation of Anti-Ballistic Missile Systems:

This treaty is premised on the strategy of mutual assured destruction (MAD)- the theory that neither superpower would launch a first strike if it lacked a defense to enable it to survive a retaliatory secong strik.

So, two sides enter into treaty to restrict the ability to develop or deploy anti-missile systems.