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"War on Terror" Human Rights Issues

Detainees

US Obligations Under International Law

Nations are bound by treaties they choose to sign and fundamental principles that fall under the category of customary international law. There is no single world body that passes laws that are bind all the nations of the world. Thus, application of international law to the United States is not as clear cut as the application of domestic US law.

International law becomes part of the United States law in four ways - the manner in which courts interpret statutes, by legislative reference to international law, through the use of international law principles to fill gaps in common law, and through the direct incorporation of treaties into the law of the land.

First, as a rule, courts of the United States interpret statutes in such a way as to comply with the nation's international obligations, a principle known as the Rule of Interpretation. Since the role of the court is to determine the intent of the legislature when the court interprets a statute, and the recognized general public policy is to conform with international legal obligations, the court will interpret statutes to conform with international law.

Second, statutes may directly refer to international law, thereby incorporating their terms, referred to as "incorporation by reference." If a U.S. statute refers to specific treaty provisions, these specific terms are thereby given the same force as the statute.

Third, international law sometimes comes into the U.S. courtroom as common law. Common law is comprised of judge-made rules subject to limits of previous court decisions and always subject to modification by a later statute. When a court can find no other domestic law addressing an issue, then it may choose to apply international law.

Finally, the U.S. Constitution provides for the direct incorporation of treaties into US law. The Treaty Supremacy Clause of the Constitution, Article VI, states, "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." First, these treaties must be negotiated, signed, and ratified. The Constitution gives the president the power to conduct foreign relations, but requires that the Senate ratify the treaty with a majority two thirds vote (1). By these terms, treaties that are signed by the President and ratified by the Senate are the law of land directly applicable in US courts.

The United States has signed and ratified the International Convention on Civil and Political Rights, which prohibits arbitrary detention and ensures due process rights for those detained. The United States has also a signed and ratified of the Third Geneva Convention regarding the laws of war and the treatment of prisoners of war. These are two of the treaties that the United States has been accused of violating in the detentions in Guantanamo and of US citizens declared "enemy combatants" in the United States.

Another form of international law that the US is bound by is customary international law. Customary international law results from a general and consistent practice of states followed out of a sense of legal obligation, so much so that it becomes custom. As such, it is not necessary for a country to sign a treaty for customary international law to apply. For example, prohibition on slavery and genocide are considered to be customary international law. The right against prolonged arbitrary detention is also considered customary, and is another way in which the detention of foreign nationals in Guantanamo and US citizens designated "enemy combatants" in the US can be considered a violation of US obligations under customary international law international law.

1. Article II, Section 2, Clause 2 of the Constitution