26.11.2013
18:15 – 19:45 Uhr
Ort: Walter-Hallstein-Bibliothek, Unter den Linden 11, Raum 101
Jürgen Overhoff (Westfälische Wilhelms-Universität
Münster): “War das Heilige Römische Reich ein Bundesstaat? Wie das
frühneuzeitliche Deutschland die föderale US-Verfassung von 1787
inspirierte”.
Hinweis: Die Veranstaltung findet entgegen der Regel an einem Dienstag statt.
1. Monism: International and National Law are a seamless whole. One legal order.
2. Dualism: International and National Laws are strictly separate legal branches.
–They have different objects. National law addresses private and public law persons.
–Public international law addresses states, only.
U.S. is monist as to customary international law.
1. Customary international law is directly effective before U.S. courts.
U.S. is dualist as to treaty law.
2. As a general rule, Exceptionally, some treaties are transposed into domestic law. Ordinarily a treaty does not create rights or duties which may be enforced before U.S. courts by private persons.
The U.S. regards the U.S. constitution and ordinary federal legislation as hierarchically superior to international law.
One can make a good argument however that the ordinary legislation of the several states is inferior to international law because of the nearly exclusive federal power over international relations.
At the same time, one can argue that the constitutions of the several states are superior to international law, because the several states were international legal persons prior to the constitution of 1787.
However:
1) All laws are presumed to be coherent and not in conflict. Whoever wants to argue that laws are in conflict bears the burden of proof that they are and if the laws can be interpreted in a non-conflicting way the court will interpret them not to be in conflict.
2) These questions are rarely litigated due to the “political question” doctrine. They are often considered non-justiciable. That’s because the federal government, specifically the presidency, has nearly exclusive power over foreign relations.
Some people see international society as a “state of nature” — the law of the jungle (terrible!) — that is less and less the case because of the U.N. and a vast network of international treaty law.
Prussian Case
– Vested right in rem, and treaty therefore enforceable by the heirs.
– Court doesn’t really go into the question of the domestic direct effect of a treaty.
Chinese Case
– Right in personam, and enforceable by Chinese government.
Why the different outcomes?
Two issues:
1) Is the public law instrument enforceable before a U.S. court?
2) Is the public law instrument enforceable by an individual?
This is known as “direct effect” (whether the law applies domestically)
and “third party effect” (because the public law instrument is between two public bodies). (The first and second parties are Bund–Land or EU–Bund).
Whether it is a treaty or a constitution the questions are the same!
a) Does the public law instrument apply before domestic courts?
b) May it be enforced by individuals?
Treaties are Presumed to have only binding effects between states as a matter of international law. (General rule)
Specific Exception: if you Proove that the treaty was intended to create individually enforceable rights and duties, and the treaty was ratified by the U.S. Senate then it definitely has direct domestic effect. (Specific Exception)
*practice point: If Germany wants a U.S. treaty to create a) rights enforceable before a U.S. court b) by private persons then those two points should really be made in the treaty AND the treaty should be ratified by 2/3 of the U.S. Senate.
“Executive Agreements” create international obligations, but are only enforceable under domestic law against the executive branch, if at all. I.e. the President, as Chief executive can order the executive branch to carry out the obligations under the executive agreement.
*Executive agreements are not defined in the U.S. constitution. The U.S. Constitution only talks about *treaties*.
*Congress sometimes passes a law, signed by the president, to make an executive agreement domestically applicable. These are called “congressional executive agreements”.
U.S. Constitution only addresses treaties. Executive agreements are not discussed in the U.S. constitution.
Are executive agreements constitutional? Federal government is of limited enumerated powers; but has exclusive federal foreign policy competence.
So, the power to enter into executive agreements may be an implied power as a necessary and proper means to attain the end of the enumerated foreign policy powers.
Then again, one could argue that the specific listing of federal treaty power was intended to exclude any other form of treaty: expresio unius, exclusio alterius.
War Powers:
Congress declares war, but president can and does start armed conflicts.
Does the U.S. Constitution apply overseas?
One theory: No, not at all – constitution stops at the waters edge.
Other theory: Constitution applies world wide.
The majority opinion is in between:
In German law we distinguish political rights (Bürgerrechte) and social rights (Vornahmerechte) and Grundrechte (Fundamental rights).
The majority view is that fundamental rights apply to non-citizens
An emerging view is that the constitution applies overseas proportional to the U.S. actual control over the area.
This is similar to the question of when and whether the ECHR applies outside of European territory.
We look at this question by examining the constitution’s effects outside of the several states: in the Utah case, the constitution did apply to an unincorporated territory. Utah was not yet a state. So, today the constitution applies in Puerto Rico, for example.
Notice that the Utah case says that the fundamental rights apply (to citizens? to non-citizens?) even in unincorporated territories, by implication. Compare this to the Chinese case. The Chinese person was not a citizen. We’re looking at the emergence of constitutional rights in the U.S. in part so we can understand how constitutional rights may emerge in BRIC countries.
JONES
ROSS
