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Thus, there are a number of examples where the actions of non-officers

can have a "binding" effect on the powers exercised by the U.S.

106/

government.

The courts have also held that international law both treaty law and customary international law 107/ law.

are part of U.S. domestic

Therefore, if a decision of a binational panel is "binding" in international law, it can also be given binding effect in U.S. law. The Supremacy Clause of the Constitution states that:

This Constitution, and the Laws of the United States which
shall be made in Persuance 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." 1087

Thus, one form of international law, a treaty, is expressly made binding as part of U.S. domestic law.

106/ These examples help to confirm the notion that the language used in Buckley must be read against the separation of powers concerns which were present in that case.

107/ However, a later Act of Congress may supercede an earlier treaty provision. Head Money Cases, 112 U.S. 580, 599 (1884). A treaty, however, will be deemed to have been abrogated by a later statute only if Congress clear, unambiguous desire to do so. Trans World Airlines, Inc., v. Franklin Mint Corp., 466 U.S. 243, 252 (1984). See also 19 U.S.C. § 2504(a) (no trade agreement approved by Congress under 19 U.S.C. § 2503 (a) which conflicts with any U.S. statute will be given effect under the laws of the United States).

108/ U.S. Const., Art. VI, cl.2 (emphasis added).

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109/

In The Paquete Habana,

the Supreme Court stated:

International law is part of our law, and must be

ascertained and administered by the courts of justice of

appropriate jurisdiction, as often as questions of right
depending upon it are duly presented for their
determination. 110/

Thus, the federal courts must recognize international law and the obligations

of the United States under international law.

Chief Justice Marshall stated for the Court that "an

Act of Congress ought never to be construed to violate the law of nations, if

109/ 175 U.S. 677 (1900).

110/ The Paquete Habana, 175 U.S. at 700. See also Henkin, Foreign Affairs and the Constitution 459 (1972) (hereinafter "Henkin, Foreign Affairs"). The recognition of the force of international law in the United States predates the Constitution. In his authoritative treatise, Henkin states:

Before the Constitution, the Continental Congress recognized the force of international law and in 1779 it resolved that the United States would cause the "law of nations to be strictly observed." 14 J. Cont. Cong. 635. In 1781 it recommended that the States adopt laws to punish offenses against that law, 21 J. Cont. Cong. 1136–37.

Henkin, Foreign Affairs 459. See also Garcia-Mir v. Meese, 788 F.2d 1446, 1453 (11th Cir. 1986) (international law is incorporated into the common law of the United States.

111/ See also Perry v. United States, 294 U.S. 330 (1935). In Perry, the Court noted that the ability to make binding obligations was a characteristic which accompanied the sovereignty of the United States. Id. at 353. The Court further noted that in the international realm, such obligations could not be enforced in U.S. courts unless the U.S. consented to such suits. Id.. at 353 n.3. The enforcement of rights under such international agreements, however, may be enforced by international tribunals.

Id.

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113/

any other possible construction remains."

Thus, for many years international law has been used to interpret the meaning of domestic

Throughout the past two centuries, Congress has incorporated international law by reference into United States law.

115/

For example,

federal criminal law has long defined piracy in terms of international

These definitions have been held to be sufficiently definite to

pass constitutional muster.

117/

Additionally, Congress has directed that

113/ Id. at 118. See also Franklin Mint, 466 U.S. at 252.

114/ For a detailed description of the role of international law in the United States, see Henkin, International Law as Law in the United States, 82 Mich. L. Rev. 1555 (1984). See also Henkin, The Constitution and United States Sovereignty: A Century Of Chinese Exclusion and its Progeny, 100 Harv. L. Rev. 853, 866-886 (1987).

115/ The Constitution gives Congress the power "To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations." U.S. Const., Art I, § 8, cl. 10.

116/ See, e.g., 3 Stat. 510, 513-14 (1819) (making it a crime to "commit the crime of piracy, as defined by the law of nations") (emphasis added); 18 U.S.C. 1651 (1982) ("Whoever, on the high seas, commits the crime of piracy as defined by the law of nations, and is afterwards brought into or found in the United States, shall be imprisoned for life."). See also 2 Stat. 359, 371 (1806) ("all persons who shall be found lurking as spies, in or about the fortifications or encampments of the armies of the United States shall suffer death, according to the law and usage of nations, by sentence of a general court martial.") (emphasis added).

117/ See, e.g., Ex parte Quirin, 317 U.S. 1, 29-30 (1942). In Quirin, the Court stated that it was permissible for Congress to define "the law of war" by reference rather than by defining the law of war in minute detail. The Court also noted that the law of piracy was sufficiently detailed because there was a sufficiently precise definition in international law. See also

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118/

U.S. agencies use international law as a basis for their actions. These indicate that Congress has the power to state that a decision of the binational panel (which will be binding as a matter of international law) will 119/ be fully recognized and applied under U.S. law.

Of course, the U.S. government could abrogate the FTA by deciding not to give panel decisions (or one particular panel decision) binding effect under

(Footnote continued from previous page)

United States v. Smith, 18 U.S. (5 Wheat.) 70, 74, 75 n.a (the law of nations defines piracy with sufficient certainty to be used to define the crime of piracy under U.S. law).

118/ The Foreign Claims Settlement Commission ("FCSC"), a U.S. agency, was required to use the principles of international law in its decisions. See Re, The Foreign Claims Settlement Commission: Its Function and Jurisdiction, 60 Mich. L. Rev. 1079, 1101 (1962). The relevant statute stated:

In the decisions of claims under this [title], the [FCSC] shall apply the following in the following order: (1) The provisions of the applicable claims agreement as provided in this subsection; and (2) The applicable principles of international law, justice, and equity.

22 U.S.C. § 1623(a) (1958). See also Re, International Law and the Foreign Claims Settlement Commission, 23 Fed. Bar J. 79, 81 (1963).

See also First National City Bank v. Banco Para El Comercio Exterior De Cuba, 462 U.S. 611, 633 (1983) ("internationally recognized equitable principles" allow U.S. courts to examine whether an entity is truly a separate juridical status from the government which created it). The Banco case shows that in cases involving international entities, U.S. courts may use international legal principles to determine that entities true status.

119/ If the binational panel issues a decision which exceeds its jurisdiction, that decision will be null and void as a matter of international law. See G. Schwarzenberger & E.D. Brown, A Manual of International Law 206 (6th ed. 1976) ("If an international tribunal or court has manifestly exceeded its jurisdiction, it has stepped beyond the consensual basis on which it was formed. Its judgment is, therefore, null and void."). If a tribunal is still

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Such legislation (which could give binding effect to panel

121/

decisions) could only be changed by further legislation.

Finally, it should be noted that the FTA specifies that the investigating

authorities must act "not inconsistent" with the panel's decision. Thus, the panel's decision is binding in the sense that it limits some of the actions that can be taken. Such an order, however, allows the investigating authorities to reach a conclusion based on grounds not passed upon by the

(Footnote continued from previous page)

in existence and discovers that its decisions was based on fraud, bribes of witnesses, forged documents, etc., then international principles of equity allow the tribunal to reopen and revise its decision. Id. at 206.

120/ See, e.g., Franklin Mint, 466 U.S. at 252 (Congress may abrogate an international agreement by a later statute). See also Garcia-Mir v. Meese, 788 F.2d 1446, 1455 (11th Cir. 1986) ("controlling executive act" may supercede customary international law). Garcia-Mir involved an appeal of Mariel Cuban refugees being held in the U.S. The 11th Circuit held that the actions of the Attorney General could supercede the customary international law regarding forced detention. For a discussion of this case, see Charney, The Power of the Executive Branch of the United States Government to Violate Customary International Law, 80 Amer. J. Int'l L. 913, 921-22 (1986) (arguing that the President alone should make the decision whether to violate customary international law); Henkin, Can the President Do No Wrong?, 80 Amer. J. Int'l L. 923, 936-37 (1986) (President should follow customary international law unless he makes an executive agreement or issues an executive order which acts as a new law that supercedes the already established law).

Note that such an action would probably have to be done by Congress, since Congress will have to pass legislation to implement the FTA.

121/ Congress, however, could delegate power to the President to declare a panel decision to be not binding. In that case, Congress would make the implementing legislation's continued use contingent on a presidential decision. Cf. La Abra Silver Mining Co. v. United States, 175 U.S. 423, 463 (1899) (Congress may "overturn" a favorable arbitral decision which is binding in international law, if that decision was subsequently determined to have