Elements of Law 3.0 Notes of Readings: II-C (Hierarchies of Law Within the Domestic Legal Order and Between Naitonal and International Law Reflecting Governmental Order)

(Pix (c) Larry Catá Backer 2013)

I have been posting about the development of a new course I have been developing for our first year law school students, "Elements of Law."  (Elements of Law 3.0: On the Relevance of a First Year Law Course Designed to Frame the Law School Curriculum).  The SYLLABUS can be accessed HERE.

With this post I continue to share with the class and interested "others" summary study notes for the course readings.  For this post we continue to consider section II of the materials:  II.C. Hierarchies of Law and Governance: Hierarchies of Law Within the Domestic Legal Order and Between National and International Law Reflecting Governmental Order).   Comments and discussion most welcome.

The Table of Contents for all of the Lecture Notes may be accessed HERE: Elements of Law 3.0: Table of Contents for Lecture and Reading Notes for An Introduction to U.S. Legal Theory and Practice.

 II.C. Hierarchies of Law and Governance: Hierarchies of Law Within the Domestic Legal Order and Between National and International Law Reflecting Governmental Order). 

Notes for:

--Medellín v. Texas, 128 S.Ct. 1346 (2008) READ MAJORITY OPINION and skim concurring and dissenting opinions).
--Pruneyard Shopping Ctr. V. Robins, 447 U. S. 74 (1980). Read pp 74-81. 
--Larry Catá Backer, Inter-Systemic Harmonization and Its Challenges for the Legal-State, in FICHL Publication Series No. 11 (2011): The Law of the Future and the Future of the Law 427-437 (Editors: Sam Muller, Stavros Zouridis, Morly Frishman and Laura Kistemaker; Torkel Opsahl Academic EPublisher, Oslo, 2011).

Over the course of the last several classes the student has been introduced to the relationship between the state, its government and systems of law as it has developed in the West. We started with an exploration of the premises of most important approaches to the construction of relationships between law, the state and a government.  Beyond the substantive characteristics of each, and their similarities and differences, the student was also introduced to the effects of each set of ordering premises on the fundamental relationship between the individual, the political community and their government. On an as applied basis, it provides the student with the tools that make an understanding of different political systems, and their relationship to law, more understandable.  In addition, the student was also exposed to to the way in which each of these approaches communicate.  Ultimately the object was to provide students with the outlines of the framework within which the modern law-state has been created and deployed in domestic and global governance.         

The class then turned to the issue of ordering law within each of these framing structures. In the face of the structuring characteristics of the modern law-state, how do states order law, and by ordering law, implement theoretical premises about the relationship of the individual to government and government to law.  The focus of the class was on two principal objectives.  The first was to explore the creation and the legitimacy of "higher law" that both constrains the state and its government, which has become the basis of modern constitutional law. The second was to explore a consequence of this establishment of a "higher law" system for ordering government, and its effects for ordering "inferior" law that may otherwise be declared or enacted by courts, legislatures or administrative bodies. Together these two facets of law-ordering creates what is commonly understood as the domestic legal order of a state.That is, the domestic legal order of a state refers both to the ordering of law within a state and also to the mechanics by which government is constituted, constrained, and legitimated by a states "higher law" and by which a government contributes to the enactment, implementation and enforcement of law.

In a world in which the state represented the repository of the highest law of the territory within which its authority could be enforced, the domestic legal order of states expressed both a description of a system of law-states, and also gave expression to the premise that the law-state was the highest form of of legitimate law making.  Beyond that was the world of the ¨law of nations"  in a modern version not far different from its conception at the time of the Institutes (e.g., Emer de Vattel, Le Droit des Gens (James Brown Scott ed., translation of the 1758 edition by Charles G. Fenwick (another English language version HERE)), and from the 19th century a more formalized structure of contract relations between states, managed under a system of treaties and custom understood as international law. These applied as contracts among equals among the family of civilized nations but could be used to support colonization or the making of unequal treaties when a superior  nations engaged in state to state relations with an inferior state. Before 1945, this system, of international law produced a bifurcated approach to law systems.  On the one hand the system of law produced within a state, the sum of which constituted its domestic legal order, was understood to apply directly to individuals and understood as the legitimate expression of popular sovereignty because it proceeded from the people or their representatives in ways sanctioned by the "higher (constitutional) law" of the state.  On the other hand, the obligations incurred by states among each other were said to bind states, as juridical entities, but had no effect within the territory of a state unless, under the rules provided for this purpose within a state, these treaty or customary obligations, were incorporated into the domestic legal order of a state. In the absence of that incorporation there was no automatic transposition of international into domestic law and individuals within a state had neither rights nor obligations under these provisions, however much they might want either.

But especially since the middle of the 20th century, law and law systems have once again become more detached from the state, and assumed an autonomy that might produce a direct connection between international law and individuals wherever situated irrespective of the action or inaction of an intermediary state. This change is described in your reading, Larry Catá Backer, Inter-Systemic Harmonization and Its Challenges for the Legal-State, in FICHL Publication Series No. 11 (2011): The Law of the Future and the Future of the Law 427-437 (Editors: Sam Muller, Stavros Zouridis, Morly Frishman and Laura Kistemaker; Torkel Opsahl Academic EPublisher, Oslo, 2011). The development of supra-national norm making, at first centered on the United Nations and its related organizations, and then spreading to a number of the multilateral public organizations, have created a system of norm and law making that seeks to regulate areas of conduct once reserved to states. More importantly, these international organizations not only began producing regulaitonand law but also began to understand their governance role as inter connected with the law of the domestic legal orders of the member states of these organizations. (e.g., José E. Alvarez, International Organizations as Law-Makers, Oxford University Press, 2006).  Globalization also tended to shift regulatory emphasis from states to a "transnational" space beyond, though not clearly vertically arranged against the domestic legal orders of states with which they came in contact. (e.g., Gunther Teubner, 'Global Bukowina': Legal Pluralism in the World Society, in Global Law Without a State 3-28 (Gunther Teubner ed., 1997)). Some states created mechanisms for the automatic incorporation of their international law obligations within their domestic legal orders.  Others placed international law obligations within the hierarchy of their laws, sometimes placing international law above and sometimes on the same level as domestic statutes.  Still others retained a high wall between the international obligations of the state and its domestic legal order, requiring a positive transposition of international law by legislative action or by the inclusion in the treaty itself of an explicit provision for automatic incorporation upon approval of the treaty by the legislature. In any case, the relation of the international obligations of states to other aspects of law has always been treated, and especially so in the United States, as something apart from domestic legislation. Complicating the situation was the rise of international organizations with authority to create international rules or set standards with sometimes binding effects.  Lastly, some aspects of both international treaty law and custom have come to be accepted by many, if not most states as binding whether or not a state consents to their application.  These peremptory norms, jus cogens, remain quite controversial (e.g., Inter-American Court, The Legal Status and Rights of Undocumented Migrants, Mexico, Advisory Opinion OC-18/03 (Decision No) Inter-Am. Ct. H.R. (Ser. A) No. 18 (Official Case No)IHRL 3237 (IACHR 2003), issued September 17, 2003).

For today's class students will consider these issues as applied in the United States.  We will use as the basis of our examination the discussion in Medellín v. Texas, 128 S.Ct. 1346 (2008).  The case presents a useful example of the way in which state, federal and national governments, and their legal orders, now intersect within the law-state system of the United States.  Its complexity provides a window on the realities of the application of law where multiple jurisdictions and systems of law may apply simultaneously to a single event or series of events.

The facts of the case are fairly straightforward:

Petitioner Jose Ernesto Medellin, a Mexican national, has lived in the United States since preschool. A member of the "Black and Whites" gang, Medellin was convicted of capital murder and sentenced to death in Texas for the gang rape and brutal murders of two Houston teenagers.
. . . .
Medellin was arrested at approximately 4 a.m. on June 29, 1993. A few hours later, between 5:54 and 7:23 a.m., Medellin was given Miranda warnings; he then signed a written waiver and gave a detailed written confession. App. to Brief for Respondent 32-36. Local law enforcement officers did not, however, inform Medellin of his Vienna Convention right to notify the Mexican consulate of his detention. Brief for Petitioner 6-7. Medellin was convicted of capital murder and sentenced to death; his conviction and sentence were affirmed on appeal. Medellin v. State, No. 71,997 (Tex. Crim. App., May 16, 1997), App. to Brief for Respondent 2-31.

But because Medellin was a Mexican national, the interests of Mexico in the welfare of its citizens and as memorialized in agreements between the United States and Mexico might also play a part.  In 1969, the United States ratified the Vienna Convention on Consular Relations and the Optional Protocol Concerning the Compulsory Settlement of Disputes to the Vienna Convention (Optional Protocol or Protocol) on Apr. 24, 1963. The preamble to the Convention sets out as one of its purposes to "contribute to the development of friendly relations among nations." 21 U.S.T., at 79. Consequently, Convention Article 36, to "facilitat[e] the exercise of consular functions" (Art. 36(1), 21 U.S.T., at 100), provides that if a person detained by a foreign country "so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State" of such detention, and "inform the [detainee] of his righ[t]" to request assistance from the consul of his own state. Art. 36(1)(b), id., at 101. Disputes arising out of an interpretation of the Convention are to be resolved in the International Court of Justice under its compulsory jurisdiction. U.N. member states undertake to comply with ICJ decisions.

The United States originally consented to the general jurisdiction of the ICJ when it filed a declaration recognizing compulsory jurisdiction under Art. 36(2) in 1946.  The United States withdrew from general ICJ jurisdiction in 1985.  See U. S. Dept. of State Letter and Statement Concerning Termination of Acceptance of ICJ Compulsory Jurisdiction (Oct. 7, 1985), reprinted in 24 I. L. M. 1742 (1985). By ratifying the Optional Protocol to the Vienna Convention, the United States consented to the specific jurisdiction of the ICJ with respect to claims arising out of the Vienna Convention.  On March 7, 2005, subsequent to the ICJ's judgment in Avena, the United States gave notice of withdrawal from the  Optional Protocol to the Vienna Convention.  Letter from Condoleezza Rice, Secretary of State, to Kofi A. Annan, Secretary-General of the United Nations. (Medellin, supra ).

No issue of international law was raised during the course of the arrest, or trial court proceedings. "Medellin first raised his Vienna Convention claim in his first application for state postconviction relief.  The state trial court held that the claim was procedurally defaulted because Medellin had failed to raise it at trial or on direct review.  The trial court also rejected the Vienna Convention claim on the merits, finding that Medellin had "fail[ed] to show that any non-notification of the Mexican authorities impacted on the validity of his conviction or punishment."  Id., at 62.  The Texas Court of Criminal Appeals affirmed." (Ibid).  At this point, Medellin filed a federal habeas corpus peitiotn in the federal district court.  It was denied. While this denial was on appeal to the Fifth Circuit,

"the ICJ issued its decision in Avena [and Other Mexican Nationals; Mexico v. United States of America, 2004 I. C. J. 12 (Judgment of Mar. 31).  The ICJ held that the United States had violated Article 36(1)(b) of the Vienna Convention by failing to inform the 51 named Mexican nationals, including Medellin, of their Vienna Convention rights.  2004 I. C. J., at 53-55.  In the ICJ's determination, the United States was obligated "to provide, by means of its own choosing, review and reconsideration of the convictions and sentences of the [affected] Mexican nationals."  Id., at 72, P 153(9)..  The ICJ indicated that such review was required without regard to state procedural default rules.  Id., at 56-57." (Ibid). 

The Fifth Circuit then ruled against Medellin.  The U.S. Supreme Court then granted certiorari,  Medellin v. Dretke, 544 U.S. 660, 661, 125 S. Ct. 2088, 161 L. Ed. 2d 982 (2005) (per curiam) (Medellin I). Before the Supreme Court heard oral argument, however, then President George W. Bush issued a Memorandum for the United States Attorney General, that provided:

"I have determined, pursuant to the authority vested in me as President by the Constitution and the laws of the United States of America, that the United States will discharge its international obligations under the decision of the International Court of Justice in [Avena], by having State courts give effect to the decision in accordance with general principles of comity in cases filed by the 51 Mexican nationals addressed in that decision." App. to Pet. for Cert. 187a. (Medellin, supra).

Relying on both the Presidential Memorandum and the ICJ Avena decision, Medellin filed a second application for habeas relief in state court. Ex parte Medellin, 223 S. W. 3d 315, 322-323 (Tex. Crim. App. 2006). That appeal was then dismissed by the Texas Court of Criminal Appeals as an abuse of the writ. Ex Parte Medellín, 223 S. W. 3d, 315, at 352 (Tex. Ct. Crim. App. 2006). In that court's view, neither the Avena decision nor the President's Memorandum was "binding federal law" that could displace the State's limitations on the filing of successive habeas applications. Ibid. The U.S. Supreme Court granted certiorari. 550 U.S. 917, 127 S. Ct. 2129, 167 L. Ed. 2d 862 (2007). The U.S: Supreme Court then had two significant issues ot deal with--the first was the effect of international law on American jurisprudence and its incorporation into the decisions of American courts.  The second was an issue of federalism, touching on the effect of a Presidential Memorandum purportedly issued under the President's foreign affairs powers on the application and interpretaiton of the criminal law of a state.

With respect to the first issue, the Supreme Court first summarized its view of the relationship of international law to the domestic law of the United States. 

No one disputes that the Avena decision--a decision that flows from the treaties through which the United States submitted to ICJ jurisdiction with respect to Vienna Convention disputes--constitutes an international law obligation on the part of the United States. But not all international law obligations automatically constitute binding federal law enforceable in United States courts. The question we confront here is whether the Avena judgment has automatic domestic legal effect such that the judgment of its own force applies in state and federal courts.
This Court has long recognized the distinction between treaties that automatically have effect as domestic law, and those that--while they constitute international law commitments--do not by themselves function as binding federal law. The distinction was well explained by Chief Justice Marshall's opinion in Foster v. Neilson, 27 U.S. 253, 2 Pet. 253, 315, 7 L. Ed. 415 (1829), overruled on other grounds, United States v. Percheman, 32 U.S. 51, 7 Pet. 51, 8 L. Ed. 604 (1833), which held that a treaty is "equivalent to an act of the legislature," and hence self-executing, when it "operates of itself without the aid of any legislative provision." Foster, supra, at 314, 2 Pet. 253, 315, 7 L. Ed. 415. When, in contrast, "[treaty] stipulations are not self-executing they can only be enforced pursuant to legislation to carry them into effect." Whitney v. Robertson, 124 U.S. 190, 194, 8 S. Ct. 456, 31 L. Ed. 386 (1888). In sum, while treaties "may comprise international commitments . . . they are not domestic law unless Congress has either enacted implementing statutes or the treaty itself conveys an intention that it be 'self-executing' and is ratified on these terms." Igartua-De La Rosa v. United States, 417 F.3d 145, 150 (CA1 2005) (en banc) (Boudin, C. J.).
A treaty is, of course, "primarily a compact between independent nations." Head Money Cases, 112 U.S. 580, 598, 5 S. Ct. 247, 28 L. Ed. 798 (1884). It ordinarily "depends for the enforcement of its provisions on the interest and the honor of the governments which are parties to it." Ibid.. . . . Only "[i]f the treaty contains stipulations which are self-executing, that is, require no legislation to make them operative, [will] they have the force and effect of a legislative enactment." Whitney, supra, at 194, 8 S. Ct. 456, 31 L. Ed. 386.

So far so good, but Medellin then suggested that the Avena decision was binding as law within the United States because the relevant U.N. Charter provisions, the Optional Protocol and the ICJ Statute were effectively self-executing.  A majority of the justices disagreed.

To arrive at this determination, the Supreme Court described what it considered the appropriate interpretive analysis for cases of this kind.  Because statutes are at issue, it interpretation starts with the relevant text (Ibid; Part II.A).  But, "'Because a treaty ratified by the United States is "an agreement among sovereign powers,' we have also considered as "aids to its interpretation" the negotiation and drafting history of the treaty as well as "the postratification understanding" of signatory nations.  Zicherman v. Korean Air Lines Co., 516 U.S. 217, 226, 116 S. Ct. 629, 133 L. Ed. 2d 596 (1996)." (Ibid). The majority suggested that the "most natural reading of the Optional Protocol is as a bare grant of jurisdiction." (Ibid). In any case, they reasoned, the obligation to comply with ICJ judgements arises form the U.N. Charter and not the Optional Protocol. But if that is the case, the COurt determined, then the operative language, that each member state undertakes to comply with ICJ decisions means only that the member state commits "to take future action through their political branches to comply with an ICJ decision."  Brief for United States as Amicus Curiae in Medellin I, O. T. 2004, No. 04-5928, p 34." (Ibid). Thus, the undertaking is a political undertaking not a legal one. In effect, the U.N. Charter, the majority suggests, commits the United States only to endeavor to transpose ICJ judgments into domestic law.  For this purpose, the Supreme Court relied on both the position of the U.S. government and its application of prior cases, and its inference from the framework for the enforcement of ICJ decisions.  "It is, moreover, well settled that the United States' interpretation of a treaty "is entitled to great weight."  Sumitomo Shoji America, Inc. v. Avagliano, 457 U.S. 176, 184-185, 102 S. Ct. 2374, 72 L. Ed. 2d 765 (1982). . .  .   The Executive Branch has unfailingly adhered to its view that the relevant treaties do not create domestically enforceable federal law.  See Brief for United States as Amicus Curiae 4, 27-29." (Ibid).

In sum, Medellin's view that ICJ decisions are automatically enforceable as domestic law is fatally undermined by the enforcement structure established by Article 94. His construction would eliminate the option of noncompliance contemplated by Article 94(2), undermining the ability of the political branches to determine whether and how to comply with an ICJ judgment. Those sensitive foreign policy decisions would instead be transferred to state and federal courts charged with applying an ICJ judgment directly as domestic law. And those courts would not be empowered to decide whether to comply with the judgment--again, always regarded as an option by the political branches--any more than courts may consider whether to comply with any other species of domestic law. This result would be particularly anomalous in light of the principle that "[t]he conduct of the foreign relations of our Government is committed by the Constitution to the Executive and Legislative--'the political'--Departments." Oetjen v. Central Leather Co., 246 U.S. 297, 302, 38 S. Ct. 309, 62 L. Ed. 726 (1918).

The majority then faults the dissenting opinion for misreading the texts and misinterpreting the other sources relied on.  The dissent, the majority tells the reader, failed to appropriately consider the text. "As against this time-honored textual approach, the dissent proposes a multifactor, judgment-by-judgment analysis that would "jettiso[n] relative predictability for the open-ended rough-and-tumble of factors."  Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 547, 115 S. Ct. 1043, 130 L. Ed. 2d 1024 (1995)." (Ibid., Part II.B). Lastly, in Part II.C., the majority supported its reading by considering the understanding of other signatory states after ratification.  (Part II.C.). There is a suggestion of the anti-democratic character of holding that the ICJ decision is self executing as well as the suggestion that  this result might interfere with the constittuional prerogatives of the federal courts. (Ibid).

 In sum, while the ICJ's judgment in Avena creates an international law obligation on the part of the United States, it does not of its own force constitute binding federal law  that pre-empts state restrictions on the filing of successive habeas petitions.  As we noted in Sanchez-Llamas, a contrary conclusion would be extraordinary, given that basic rights guaranteed by our own Constitution do not have the effect of displacing state procedural rules.  See 548 U.S., at 360, 126 S. Ct. 2669, 165 L. Ed. 2d 557. Nothing in the text, background, negotiating and drafting history, or practice among signatory nations suggests that the President or Senate intended the improbable result of giving the judgments of an international tribunal a higher status than that enjoyed by "many of our most fundamental constitutional protections."  (Ibid. Part II.D.)

 But what about the power of the President to compel the Texas courts to apply the treaty?  The Supreme Court agrees that the interests of the United States that the president was seeking to advance were compelling.  But however compelling, the court argued, in the absence of a constitutionally sufficient power, the President could not assert authority (or better put, the State of Texas could refuse to comply with any purported assertion).

Justice Jackson's familiar tripartite scheme provides the accepted framework for evaluating executive action in this area.  First, "[w]hen the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate."  Youngstown, 343 U.S., at 635, 72 S. Ct. 863, 96 L. Ed. 1153, 62 Ohio Law Abs. 417 (opinion concurring).  Second, "[w]hen the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain."  Id., at 637, 72 S. Ct. 863, 96 L. Ed. 1153, 62 Ohio Law Abs. 417 In this circumstance, Presidential authority can derive support from "congressional inertia, indifference or quiescence."  Ibid.   Finally, "[w]hen the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb," and the  Court can sustain his actions "only by disabling the Congress from acting upon the subject."  Id., at 637-638, 72 S. Ct. 863, 96 L. Ed. 1153, 62 Ohio Law Abs. 417 (Ibid., Part III.A).

The United States and Medellin advanced three arguments in support of the President's authority: (1) that the relevant treaties give the President the authority to implement the Avena judgment and that Congress has acquiesced in the exercise of such authority; (2) that the President exercised  an "independent" international dispute-resolution power wholly apart from the asserted authority based on the pertinent treaties, and (3) that the President's Memorandum is a valid exercise of his power to take care that the laws be faithfully executed. 

The majority rejected the first argument on the ground that "the President has an array of political and diplomatic means available to enforce international obligations, but unilaterally converting a non-self-executing treaty into a self-executing one is not among them.  The responsibility for transforming an international obligation arising from a non-self-executing treaty into domestic law falls to  Congress." (Ibid., III.B.1). In any event, the Court concluded, Congress never acquiesced to this sort of assertion of Presidential power. The Court emphasized that no President has the authority to unilaterally execute a non-self executing treaty. (Ibid). The Court also rejected the claim that the president had sufficient authority under his foreign affairs powers. (Ibid., III.B.2). This claim depended on Congressional acquiescence, of which the Court found none. The court rejected the third argument on the grounds that the power to execute the laws did not include within it thw power to enact them. (Ibid., III.B.3). For those reasons, the State of Texas was free to ignore the Presidential memorandum as of no legal effect.

Whatever one thinks of the merits of the majority's reasoning, the Medellin case thus provides a very clear picture of the construction of the hierarchy of law in the United States, and especially the application of international law within the American domestic legal order.  International law that is self executing when made has the same effect as statutes passed by Congress. They need not be enacted anew.  On the other hand, they can be repealed, modified or ignored by subsequent enactments of Congress, even if the language of the treaty itself committed the United States to refrain from doing any of those things.  Unlike other states, self executed international law has no special or superior place within the American hierarchy of law.   The same is true of law enacted by Congress to transpose international obligations into national law. The techniques of statutorily interpretation will be applied to determine whether a treaty is self executed and the focus, in these cases will be on the text of the treaty and the intent of the executive in negotiating the treaty. The post ratification behavior of the state parties may also serve as evidence of the intent of the parties relating to the meaning of the treaty. The President may not compel states to comply with the treaty obligations that the United States has ratified, absent legitimately enacted statutes that transpose these state to state obligations into domestic law.  Neither may the President appear to effectively legislate such compliance in the absence of Congressional acquiesce or action. Where the Federal Constitution fails to give the President power, states are free to ignore his command. and state law and practice may prevail over Presidential desires, even those backed by international commitments to which the United States (through its federal government) is bound.  Thus the internal and external dimensions of the authority of international law in the United States and its role in the hierarchy of U.S. law.

It must be remembered, however, that the premises out of which the majority Justices reached their conclusion remain highly contested.  That contestation exists on two levels.  One level is focused on the peculiarities of U.S. constitutional law. Within the parameters of American constitutional law, the narrow textualism that produced the majority opinion is countered by a functional approach well illustrated by the  dissenting Justices.  Rather than focusing on the logic of the text at issue and the intent of the drafters in the interpretive construction of the text, the functionalist justice will look to achieving the intent objective of the drafters rather than privileging the textual and formal logic of the text. As the majority in the Medellin case suggested, formalists tend to view the functional approach as veering too close to and sometimes embracing a legislative power that is not for courts to wield. Thus the issue of interpretation, the issue of legal hierarchies and the role of international law in the United States becomes one not merely of the application of law and constitutional principles, but also of the theory of separation of powers (which organ of government has the authority to make these determinations) and of the character of interpretation itself (e.g., when does interpretation become legislation). (Medellin, Part II.B).

The other level of contestation focuses on the emerging structural framework of international law and organizations.  Internationalists tend to reject the foundational premises on which the Medellin justices relied.  Here the readings may be useful (Larry Catá Backer, Inter-Systemic Harmonization and Its Challenges for the Legal-State, supra). Traditional hierarchies of law, grounded in the ultimate supremacy of the law-state is sometimes rejected in favor of a legal hierarchy on which at least conventional international law and jus cogens is treated as equal or superior to the statutory law of states.  This is a set of presumptions that may be implicitly built into international governance instruments sometimes (U.N. Guiding Principles of Business and Human Rights).  Many states continue to reject this notion, but internationalists and international public and private organizations increasingly take the view that international law is both superior and binding not just on states but also directly on the residents and juridical persons residing in any state that may be part of the community of states that have produced this law. One approach is based on the premise that the community of nations, especially where each is legitimately established under democratic principles, has the authority to constrict common laws of nations that ought to be directly applied to all members of that governance community. But this is countered by those who view this as illegitimate because of the democratic deficit in its development--that is that international law is developed and agreed by institutions with no direct connection with the people in whom sovereignty is vested. In either case, what is becoming clear is that, while the Medellin opinion represents a very nice application of the classical theory of legal hierarchy between domestic and international law, one that still has strong adherents, that classical theory is in fact under sustained challenge.  But that challenge is coming not form the law-state but form the emerging international community and with respect to the law/governance structures they are producing.

The final reading for this class session, Pruneyard Shopping Ctr. V. Robins, 447 U. S. 74 (1980), suggests the limits of federal authority to shape or constrain state law.  In this case the Supreme Court held that a state could interpret its constitution to prohibit the private owner of a shopping center from using state trespass law to exclude peaceful expressive activity in the open areas of the shopping center. The issue turned on the ability of the State of California to impose constitutional requirements under its own state constitution different form that sufficient under the Federal Constitution.  Thus two principles emerge.  First, under the U.S. Constitution, states can provide their citizens with broader rights in their constitutions than under the federal Constitution, so long as those rights do not infringe on any federal constitutional rights.  Second under the constitution of the State of California, that powwer extends to the protection fo the right to free  speech.  For the student concerned with issues of hierarchy another insight emerges--legal hierarchies in the United States may not be entirely rigid, and indeed may be porous in certain respects.  Thus while in this case federal constitutional law could constrain the scope of California's constitution, where the state sought to act in a way that was different from but not in opposition to the federal constitutional principle, that action might not be deemed impermissible.  But the arbiter of this porosity is the court.

Pruneyard reminds us again, of course, of the importance of hierarchy in law.  In that case, state constitutional law, which is supreme within the domestic legal order of a state, must itself conform to the superior effects of the constitution of the community of states to which California is a member.  It is thus against the overriding constraints of federal constitutional (and to some extent statutory) law, that the California constitution must be read.   Pruneyard also provides an insight into the arguments rejected in Medellin. There the plurality rejected the application of a similar relationship between international law and the constitutional law of the United States.  They rejected the idea of a hierarchy in which international law sat atop the constitutional and domestic legal order of states in favor of a view that treated the two systems as distinct through connected through the intermediation of consent in which legislatures evidenced acquiescence through legal transposition (the enactment of international obligation into domestic law through statutes and the like).

Yet it is also important to remember that there is a hierarchy of international law, one that in some ways is as contested that that within domestic legal orders (Larry Catá Backer, Sovereign Investing and Markets-Based Transnational Legislative Power: The Norwegian Sovereign Wealth Fund in Global Markets, 29 American University International Law Review – (forthcoming 2013)).  Sometimes the hierarchy is explicitly bound up with the issues of the appropriate sources of law to be applied by international bodies.  The Statute of the International Court of Justice, which played a prominent role in Medellin, for example, provides:

1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:

a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;
b. international custom, as evidence of a general practice accepted as law;
c. the general principles of law recognized by civilized nations;
d. subject to the provisions of article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations , as subsidiary means for the determination of rules of law.

2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto. (Statute ¶ 38).

This suggests both the scope of internationla law that is generally and conventionally recognized by public international law and also the hierarchy within which they are woven together for purposes of application and interpretation. It also suggests that, like the law of the United States, internaitonal law recognizes both a customary element as well as a private element, the later of which might invoke equity. More intersting still, and reflecting practices in civil law countries, international law sometimes permits the persuasive use of academic writing as well as the reasoned opinions of other courts, that is of courts whose decisions do not otherwise bind.  

A harder question for international law is the extent to which "soft law" fits into the hierarchy of international law. Soft law are instruments that may be produced by international public organizaitons but that do not have the binding effect of either domestic or international law. Traditionally these were viewed  as aspirational with no binding effect.  But sometimes their provisions become so well accepted that they become part of customary law and to some extent binding, or are otherwise taken up and incorporated into traditional international law instruments. They are thus seen as valuable as transitional instruments. The Universal Declaration of Human Rights is a good example. (e.g., Roberto Andorno, "The Invaluable Role of Soft Law in the Development of Universal Norms in Bioethics", paper at a Workshop jointly organized by the German Ministry of Foreign Affairs and the German UNESCO Commission, Berlin, 15 February 2007).    Some soft law instruments, such as the Guidelines for Multinational Enterprises of the Organization for Economic Cooperation and Development provide more complex examples of soft law.  Here soft law contains not just a set of substantive standards that, though not binding, are require OECD Member States  to provide mechanisms through which parties may seek to complain of violations of the Guidelines. (Backer, Larry Catá, Rights and Accountability in Development (Raid) V Das Air and Global Witness V Afrimex: Small Steps Toward an Autonomous Transnational Legal System for the Regulation of Multinational Corporations, Melbourne Journal of International Law, Vol. 10, 2010).  Lastly private codes of conduct are the most problematic governance instrument within conventional international law.  Many traditionalists don't consider them either soft or law--at most private contract or quasi contract among its parties.  (considered in Jan Klabbers, Reflections on Soft International Law in a Privatized World) Others view these as the elements of emerging systems of transnational governance. (Gunther Teubner, Global Bukowina:  Legal Pluralism in the World Society,  Gunther Teubner (ed.), Global Law Without a State (Dartmouth, Aldershot 1997, 3-28Backer, Larry Catá, Multinational Corporations as Objects and Sources of Transnational Regulation. ILSA Journal of International & Comparative Law, Vol. 14, No. 2, 2008).