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COUSCLIN, 859 F.2d 929 (October 14 1988) (U.S. refusal to obey court orders, of the U.N. I.C.J.).

See, U.S. Mining Nicaragua's Harbors (February-March 1984), and see, the criminal tort doctrine, on complicity of U.S. federal judges in U.S. government violent crimes.

United States Court of Appeals for the District of Columbia Circuit

	)
Committee of United States	)
Citizens Living in Nicaragua,	)
et al,	)
Appellants,	)
)
v.	)
)
Ronald Wilson Reagan,	)
President of the United States,	)
et al,	)
Appellee	)
	)

Appeal from the United States District Court for the District of Columbia (Civil Action No. 82-03395).

Before Spottswood William Robinson III and Abner Joseph Mikva, Circuit Judges, and Gordon, Senior District Judge (sitting by designation pursuant to 28 U.S.C. § 294(d)).

Opinion for the Court filed by Circuit Judge Mikva. {859 F.2d 929, 932}

Opinion

Mikva, Circuit Judge:

Appellants, comprising organizations and individuals who oppose United States policy in Central America, claim to have suffered physical, economic and other injuries from the war in Nicaragua. These facts form the backdrop to this lawsuit.

The suit finds its genesis, however, in a 1986 decision by the International Court of Justice (ICJ), which held that America’s support of military actions by the so-called “Contras” against the government of Nicaragua violated both customary international law and a treaty between the United States and Nicaragua. ¶

The ICJ concluded that the United States “is under a duty immediately to cease and to refrain from all such acts as may constitute breaches of the foregoing legal obligations.” 1986 I.C.J. 14, 149. ¶

Included among those acts were the “training, arming, equipping, financing and supplying [of] the contra forces.” Id. at 146.

Prior to the ICJ’s decision, the United States withdrew from the merits phase of the court’s proceedings, contending that the court lacked jurisdiction over Nicaragua’s application. ¶

Since the decision, the President has requested and Congress has approved continued funding for the Contras of the sort that the ICJ found illegal. ¶

In addition, the U.S. used its veto power in the United Nations (U.N.) Security Council to block consideration of a resolution enforcing the ICJ decision.

Unhappy with their government’s failure to abide by the ICJ decision and believing that continued funding of the Contras injures their own interests, appellants filed suit in the United States District Court for the District of Columbia. The suit sought injunctive and declaratory relief against the funding of the Contras on grounds that such funding violates the Administrative Procedure Act, the first and fifth amendments of the United States Constitution, Article 94 of the U.N. Charter, and customary international law.

In their presentation to this court, appellants make no argument on behalf of their first amendment claim, nor do the facts that they have pleaded suggest first amendment violations. Thus, the only constitutional claim we need consider is the alleged violation of fifth amendment rights. All of the remaining nonconstitutional claims rest upon one central contention: that the United States has contravened the ICJ judgment. Failure to adhere to that judgment allegedly violates three separate legal norms: customary international law, Article 94 of the U.N. Charter (which enjoins obedience to ICJ judgments), and the Administrative Procedure Act (which grants relief to persons “aggrieved” by agency actions that are “not in accordance with law”).

The district court dismissed appellants’ entire complaint on the ground that it involved nonjusticiable political questions. We believe the trial court’s reliance on the political question doctrine was misplaced, particularly to the extent that appellants seek to vindicate personal rights rather than to conform America’s foreign policy to international legal norms. Like the trial court, however, we find that the complaint warrants dismissal. Although we conclude that the complaint is justiciable, we believe that it fails to state a claim on which relief can be granted. Pursuant to Fed. R. Civ. P. 12(b)(6), we therefore dismiss the case.

I.  Background

Several differently situated plaintiffs join forces in bringing this suit. Although they are united in the relief that they request, the interests they seek to vindicate are of three different sorts. To begin with, two of the plaintiff organizations seek to strengthen the influence of—and respect for—the United Nations. They claim that continued United States support for the Contras frustrates that objective by undermining respect for the ICJ, which functions {859 F.2d 929, 933} as the judicial arm of the United Nations. A second group of plaintiffs claims a different sort of organizational injury. This group comprises three organizations (one of which is now defunct) that send economic aid and volunteers to Nicaragua in order to improve the standard of living in that country. They allege that funding for the Contras hinders their work because the violent conflict dissuades potential volunteers from going to Nicaragua and because projects that plaintiffs have aided in Nicaragua (e.g., health clinics) have been attacked or destroyed by the Contras.

Plaintiffs in the remaining category allege that American support for the Contras threatens their safety and property, directly infringing their personal rights under international law and the fifth amendment. These plaintiffs include five named individuals living in Nicaragua. One of these has been killed—allegedly by the Contras—since this suit was filed; another claims to have been repeatedly “detained, threatened and deprived of her liberty” by Contra forces. Complaint at ¶ 4(d). Yet another allegedly has been “detained several times by the contras.” Id. at ¶ 4(g). In addition to the individual plaintiffs, two organizations advance similar claims in their representative capacity. The Committee of United States Citizens Living in Nicaragua represents over 100 Americans living in that country and alleges that its members are placed in danger of physical harm by Contra military activities. Similarly, one of the organizations that supports social welfare projects in Nicaragua alleges that its volunteers are endangered by Contra attacks on those projects.

These claims of physical harm and the threat of harm from Contra activities rest in part on a generalized fear of the recurring violence in Nicaragua. But appellants also aver that Americans are among the Contras’ specific targets. Contra leaders, according to the complaint, have declared that “all ... foreigners, known as internationalists, would be considered enemy targets” and have “described the internationalists as ‘part of the enemy.’” Complaint at ¶ 17. The complaint further alleges that, since the Contras announced the targeting of “internationalists,” numerous foreigners working in various social projects in Nicaragua have in fact been victims of Contra military operations. In the present posture of the case, we must accept all plausible allegations in the complaint as true.

II.  Discussion

A.  The Political Question Doctrine

“No branch of the law of justiciability is in such disarray as the doctrine of the ‘political question’.” C. Wright, The Law of Federal Courts 74 (4th ed. 1983). Professor Wright concludes that “there is no workable definition of characteristics that distinguish political questions from justiciable questions, and ... the category of political questions is ‘more amenable to description by infinite itemization than by generalization.’” Id. at 75 (footnote omitted). The Supreme Court has voiced a similar sentiment, warning us that “it is error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance.” Baker v. Carr, 369 U.S. 186, 211 (1962). Given the care with which the political question doctrine should be applied and given the variety of claims encompassed by the present case, we find the trial court’s blanket invocation of the political question doctrine to be inappropriate.

To the extent that political question cases contain factors that make them genuinely nonjusticiable, some of those elements can be found here. For example, judicial refusal to resolve political questions “is founded primarily on the doctrine of separation of powers.” C. Wright, supra, at 75. Courts often underscore this factor by pointing to “a textually demonstrable constitutional commitment of the issue to a coordinate branch of government.” Baker v. Carr, 369 U.S. at 217; see also L. Tribe, American Constitutional Law 96 (2d ed. 1988) (distinguishing the textual commitment rationale as the “classical” version of the political question doctrine). As the trial court noted in this case, foreign policy decisions {859 F.2d 929, 934} are the subject of just such a textual commitment. “The 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 (1918). Together, those departments possess the sole power to enter into treaties and subsequently to alter them. See Whitney v. Robertson, 124 U.S. 190, 194 (1887) (“Congress may modify [treaty] provisions, so far as they bind the United States”). Similarly, only the political departments can submit our nation to an international court’s jurisdiction or thereafter rescind that commitment.

This facet of the political question doctrine may well bar consideration of some of appellants’ claims. The first two categories of claims are those brought by organizations seeking to strengthen the United Nations and to help the citizens of Nicaragua. These claims seem especially vulnerable to dismissal under a doctrine that “excludes from judicial review those controversies which revolve around policy choices and value determinations constitutionally committed for resolution to the [political branches].” Japan Whaling Ass’n v. American Cetacean Soc’y, 478 U.S. 221, 230 (1986). Indeed, to the extent that the organizational appellants in this case allege “purely ideological interests in the agency’s action,” Action Alliance of Senior Citizens v. Heckler, 789 F.2d 931, 937 (D.C. Cir. 1986), they may even lack standing.

In other respects, however, applying the political question doctrine even to these first two categories of claims may not be the best approach. First, reliance on this doctrine should not depend on what type of party raises an issue or on the interest that party asserts; “the doctrine ... is one of ‘political questions,’ not one of ‘political cases’.” Baker v. Carr, 369 U.S. at 217. Secondly, the central premise of appellants’ first two groups of claims—that private parties can enforce an ICJ judgment against the United States—invites dismissal for a reason more fundamental than the political question doctrine. Neither individuals nor organizations have a cause of action in an American court to enforce ICJ judgments. The ICJ is a creation of national governments, working through the U.N.; its decisions operate between and among such governments and are not enforceable by individuals having no relation to the claim that the ICJ has adjudicated—in this case, a claim brought by the government of Nicaragua. Appellants try to sidestep this difficulty by alleging violations of international law rather than styling their suit as an enforcement action in support of the ICJ judgment. The United States’ contravention of an ICJ judgment may well violate principles of international law. But, as we demonstrate below, those violations are no more subject to challenge by private parties in this court than is the underlying contravention of the ICJ judgment. For these reasons, we do not rest on the political question doctrine in rejecting the first two categories of appellants’ claims. See Sanchez-Espinoza v. Reagan, 770 F.2d 202, 206 (D.C. Cir. 1985). Rather, we dismiss these claims on the ground that private parties have no cause of action in this court to enforce an ICJ decision.

The third and final group of claims in this case is brought by those appellants who allege infringement of their personal liberty and property rights. The trial court’s determination that these claims raise political questions is troubling. This court’s recent warning about the political question doctrine applies to the case before us with special force: the doctrine’s “shifting contours and uncertain underpinnings” make it “susceptible to indiscriminate and overbroad application to claims properly before the federal courts.” Ramirez de Arellano v. Weinberger, 745 F.2d 1500, 1514 (D.C. Cir. 1984) (en banc), vacated on other grounds, 471 U.S. 1113 (1985).

To be sure, even as they advance their claims based on personal rights, appellants persist in mingling those claims with their bid to enforce the ICJ judgment. Nonetheless, the core of this third set of claims {859 F.2d 929, 935} lies in the fifth amendment. Appellants contend that funding of the Contras deprives them of liberty and property “without due process of law” not only because they are generally threatened by the war in Nicaragua but also because they are intended targets of the Contra “resistance.” These are serious allegations and not ones to be dismissed as nonjusticiable. As our court declared in rejecting a political question defense to a fifth amendment takings claim, “the Executive’s power to conduct foreign relations free from the unwarranted supervision of the Judiciary cannot give the Executive carte blanche to trample the most fundamental liberty and property rights of this country’s citizenry.” Ramirez de Arellano, 745 F.2d at 1515. As appellants point out, the Supreme Court has repeatedly found that claims based on such rights are justiciable, even if they implicate foreign policy decisions. See, e.g., Regan v. Wald, 468 U.S. 222 (1984); Dames & Moore v. Regan, 453 U.S. 654 (1981).

Notwithstanding the fact that appellants’ claims of infringed rights are justiciable, however, we find the claims themselves to be insufficient as a matter of law. Examining the factual pleadings closely, we find no allegation that the United States itself has participated in or in any way sought to encourage injuries to Americans in Nicaragua. We therefore conclude that appellants’ fifth amendment cause of action fails to state a claim on which relief can be granted. On that basis, we dismiss this final group of appellants’ claims.

B.  Appellants Have No Basis in Domestic Law
for Enforcing the ICJ Judgment

1.  The status of international law
in the United States’ domestic legal order

Appellants argue that the United States’ decision to disregard the ICJ judgment and to continue funding the Contras violates three types of international law. First, contravention of the ICJ judgment is said to violate part of a United States treaty, namely Article 94 of the U.N. Charter. That article provides that “each Member of the United Nations undertakes to comply with the decision of the International Court of Justice in any case to which it is a party.” U.N. Charter art. 94. Second, disregard of the ICJ judgment allegedly violates principles of customary international law. One such principle holds that treaties in force shall be observed. Appellants contend that another such principle requires parties to ICJ decisions to adhere to those decisions. Third, the United States may have violated peremptory norms of international law. Such norms, often referred to as jus cogens (or “compelling law”), enjoy the highest status in international law and prevail over both customary international law and treaties. Appellants’ contention that the United States has violated jus cogens forms their primary argument before this court. They contend that the obligation of parties to an ICJ judgment to obey that judgment is not merely a customary rule but actually a peremptory norm of international law.

For purposes of the present lawsuit, the key question is not simply whether the United States has violated any of these three legal norms but whether such violations can be remedied by an American court or whether they can only be redressed on an international level. In short, do violations of international law have domestic legal consequences? The answer largely depends on what form the “violation” takes. Here, the alleged violation is the law that Congress enacted and that the President signed, appropriating funds for the Contras. When our government’s two political branches, acting together, contravene an international legal norm, does this court have any authority to remedy the violation? The answer is “no” if the type of international obligation that Congress and the President violate is either a treaty or a rule of customary international law. If, on the other hand, Congress and the President violate a peremptory norm (or jus cogens), the domestic legal consequences are unclear. We need not resolve this uncertainty, however, for we find that the principles appellants characterize as {859 F.2d 929, 936} peremptory norms of international law are not recognized as such by the community of nations. Thus, as we explain below in greater detail, none of the claims that appellants derive from violations of international law can succeed in this court.

2.  The effect of subsequent statutes upon prior inconsistent treaties

Although appellants’ complaint alleges that Congress’ funding of the Contras violates Article 94 of the U.N. Charter, see Complaint at ¶¶ 34, 36-38, appellants seem to concede here that such a claim is unavailing. They acknowledge, as they must, that “ordinarily, treaty obligations may be overridden by subsequent inconsistent statutes.” Brief for Appellants at 32. Nonetheless, allegations concerning the violation of Article 94 resurface at several points in appellants’ arguments, and we therefore briefly canvass the precedents that foreclose such claims.

In the Head Money Cases, 112 U.S. 580 (1884), shipping companies protested payment of a tax on immigrants they had transported to America, arguing that the tax violated treaties of friendship with the immigrants’ nations of origin. The Court held that, even if the statute requiring the tax was inconsistent with prior treaties, it necessarily displaced any conflicting treaty provisions for purposes of domestic law.

Id. at 598-99; see also Whitney v. Robertson, 124 U.S. 190, 194 (1888). No American court has wavered from this view in the subsequent century. Indeed, in a comparatively recent case, our court reaffirmed the principle that treaties and statutes enjoy equal status and therefore that inconsistencies between the two must be resolved in favor of the lex posterior. In Diggs v. Shultz, 470 F.2d 461 (D.C. Cir. 1972), cert. denied, 411 U.S. 931 (1973), this court reviewed a claim by citizens of what was then Southern Rhodesia, assailing the United States’ failure to abide by U.N. Security Council Resolution 232. That resolution directed U.N. members to impose a trade embargo against Rhodesia. The court found that America’s contravention of Resolution 232 was required by Congress’ adoption of the so-called Byrd Amendment “whose purpose and effect ... was to detach this country from the U.N. boycott of Southern Rhodesia in blatant disregard of our treaty undertakings.” Id. at 466. “Under our constitutional scheme,” the court concluded, “Congress can denounce treaties if it sees fit to do so, and there is nothing the other branches of government can do about it ... [; thus] the complaint [states] no tenable claim in law.” Id. at 466-67.

These precedents dispose of any claim by appellants that the United States has violated its treaty obligation under Article 94. It is true, of course, that the facts here differ somewhat from the situation in Diggs. Congress has not clearly repudiated the requirement in Article 94 that every nation comply with an ICJ decision “in any case to which it is a party.” U.N. Charter, art. 94. Rather, our government asserts that it never consented to ICJ jurisdiction in cases like the Nicaragua dispute. Thus, Congress may well believe that its support for the Contras, while contravening the ICJ judgment, does not violate its treaty obligation under Article 94. And, unless Congress makes clear its intent to abrogate a treaty, a court will not lightly infer such {859 F.2d 929, 937} intent but will strive to harmonize the conflicting enactments. See Cook v. United States, 288 U.S. 102 (1933).

At this stage of the present case, however, the key question is not whether Congress intended to abrogate Article 94. Since appellants allege that Congress has breached Article 94, we must determine whether such a claim could ever prevail. The claim could succeed only if appellants could prove that a prior treaty—the U.N. Charter—preempts a subsequent statute, namely the legislation that funds the Contras. It is precisely that argument that the precedents of the Supreme Court and of this court foreclose. We therefore hold that appellants’ claims based on treaty violations must fail.

Our conclusion, of course, speaks not at all to whether the United States has upheld its treaty obligations under international law. As the Supreme Court said in the Head Money Cases, a treaty “depends for the enforcement of its provisions on the interest and honor of the governments which are parties to it. If these fail, its infraction becomes the subject of international negotiations and reclamations ... [but] with all this the judicial courts have nothing to do and can give no redress.” 112 U.S. at 598. This conclusion reflects the United States’ adoption of a partly “dualist”—rather than strictly “monist”—view of international and domestic law. See, e.g., Henkin, The Constitution and United States Sovereignty: A Century of Chinese Exclusion and Its Progeny, 100 Harv. L. Rev. 853, 864 (1987) (hereinafter Henkin, United States Sovereignty). “Dualists view international law as a discrete legal system [which] ... operates wholly on an inter-nation plane.” Id.; cf. 1 L. Oppenheim, International Law 35-44 (H. Lauterpacht 8th ed. 1955).

Notwithstanding this dualist influence, the subordination of American treaties to inconsistent domestic statutes was not inevitable. It is doubtful that either our republican form of government or our constitution’s supremacy clause requires this subordination of treaies. See, e.g., Henkin, International Law as Law in the United States, 82 Mich. L. Rev. 1555, 1565 n.34 (1984) (noting that in several European countries treaties prevail over all inconsistent statutes). Nevertheless, the “[Supreme] Court’s jurisprudence about treaties inevitably reflects certain assumptions about the relation between international law and United States law....” Henkin, United States Sovereignty, 100 Harv. L. Rev. at 870. Given that jurisprudence, we cannot find—as a matter of domestic law—that congressional enactments violate prior treaties.

Finally, we note that even if Congress’ breach of a treaty were cognizable in domestic court, appellants would lack standing to rectify the particular breach that they allege here. Article 94 of the U.N. Charter simply does not confer rights on private individuals. Treaty clauses must confer such rights in order for individuals to assert a claim “arising under” them. See U.S. Const. art. III, § 2, cl. 1; 28 U.S.C. § 1331 (1982). Whether a treaty clause does create such enforcement rights is often described as part of the larger question of whether that clause is “self-executing.” See, e.g., Riesenfeld, The Doctrine of Self-Executing Treaties and U.S. v. Postal: Win At Any Price?, 74 Am. J. Int’l L. 892, 896-97 (1980) (question whether a particular treaty requires implementing legislation is different from the international law question of whether treaty “aims at the immediate creation of rights and duties of private individuals which are enforceable,” but both questions are part of the “concept of self-executing treaties”); cf. Restatement (Third) of Foreign Relations Law § 111 comment h (1987) {ISBN: 0314301380, LCCN: 86020665, WorldCat} (question of treaty’s self- executing nature is “distinct from whether the treaty creates private rights or remedies”).

This court has noted that, in “determining whether a treaty is self-executing” in the sense of its creating private enforcement rights, “courts look to the intent of the signatory parties as manifested by the language of the instrument.” Diggs v. Richardson, 555 F.2d 848, 851 (D.C. Cir. 1976). The court in Diggs v. Richardson {859 F.2d 929, 938} concluded that the U.N. Security Council Resolution that plaintiffs sought to enforce (which barred commercial relations between U.N. members and Namibia) was “not addressed to the judicial branch of our government.” Id. The resolution’s provisions did not “by their terms confer rights upon individual citizens [but] call[ed] upon governments to take certain actions.” Id.; see also Islamic Republic of Iran v. Boeing Co., 771 F.2d 1279, 1283 (9th Cir. 1985), cert. dismissed, 479 U.S. 957 (1986). Applying the same test to Article 94 of the U.N. Charter, we reach a similar conclusion.

The second paragraph of Article 94 provides that,

U.N. Charter art. 94, ¶ 2. Because only nations can be parties before the ICJ, appellants are not “parties” within the meaning of this paragraph. Clearly, this clause does not contemplate that individuals having no relationship to the ICJ case should enjoy a private right to enforce the ICJ’s decision. Our interpretation of Article 94 is buttressed by a related provision in the Statute of the ICJ, which is incorporated by reference in the U.N. Charter. See U.N. Charter art. 92. The Statute provides that “the decision of the Court has no binding force except between the parties and in respect of th[e] particular case.” Statute of the International Court of Justice, June 26, 1945, art. 59, 59 Stat. 1031, T.S. No. 993, 1 U.N.T.S. xvi (hereinafter “ICJ Statute”). Taken together, these Charter clauses make clear that the purpose of establishing the ICJ was to resolve disputes between national governments. We find in these clauses no intent to vest citizens who reside in a U.N. member nation with authority to enforce an ICJ decision against their own government. The words of Article 94 “do not by their terms confer rights upon individual citizens; they call upon governments to take certain action.” Diggs v. Richardson, 555 F.2d at 851. We conclude that appellants’ attempt to enjoin funding of the Contras based on a violation of Article 94 would fail even if Congress’ abrogation of treaties were cognizable in domestic courts.

3.  Customary international law and subsequent inconsistent statutes

In addition to relying on Article 94 to challenge continued funding of the Contras, appellants also invoke the rule “of customary international law that nations must obey the rulings of an international court to whose jurisdiction they submit.” Brief for Appellants at 34. We accept that some version of this rule describes a norm of customary international law. See, e.g., S. Rosenne, The Law and Practice of the International Court of Justice 127 (2d ed. 1985). Even so, it is far from clear that this rule governs situations like the present one, in which a nation that has consented in advance to the Court’s jurisdiction disputes whether the terms of that consent extend to a particular case. Cf. ICJ Statute art. 36, ¶ 6 (“dispute as to whether the [ICJ] has jurisdiction ... shall be settled by decision of the Court”). We postpone consideration of this issue, however, until our discussion of peremptory norms of international law. For the moment, we assume arguendo that Congress’ decision to disregard the ICJ judgment violates customary international law.

The question is whether such a violation is cognizable by domestic courts. Once again, the United States’ rejection of a purely “monist” view of the international and domestic legal orders shapes our analysis. Statutes inconsistent with principles of customary international law may well lead to international law violations. But within the domestic legal realm, that inconsistent statute simply modifies or supersedes customary international law to the extent of the inconsistency. Although the Supreme Court has never articulated this principle as a firm holding, the Court’s persuasive dictum in an important early {859 F.2d 929, 939} case established the principle that this and other courts follow.

In The Paquete Habana, 175 U.S. 677 (1900), the owner of fishing vessels captured and condemned as prize during the Spanish-American War sought compensation from the United States on the ground that customary international law prohibited such seizures. After canvassing prior state practice and the opinions of commentators, the Court concluded that the prohibition against seizure of boats engaged in coastal fishing, which arose at first from considerations of comity between nations, had ripened into “an established rule of international law.” Id. at 708. The Court therefore held that the condemnation was improper because “international law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction.” Id. at 700.

Justice Gray, writing for the Court, qualified this famous statement about the domestic effect of international law with dictum of no less significance: “Where there is no treaty, and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of nations.” Id. (emphasis added); see also The Nereide, 13 U.S. (9 Cranch) 388, 423 (1815) {justia, altlaw, lexisone} (per Marshall, C.J.) (dictum to same effect). Thus, so far as concerned domestic law, the rule was laid down that subsequently enacted statutes would pre-empt existing principles of customary international law—just as they displaced prior inconsistent treaties.

Our own court adopted this dictum as part of its holding in Tag v. Rogers, 267 F.2d 664 (D.C. Cir. 1959), cert. denied, 362 U.S. 904 (1960). In that case, a German national sought to reclaim property in America that had been vested in the United States Attorney General during World War II, pursuant to the Trading With the Enemy Act. The plaintiff asserted, inter alia, “that there is now a practice amounting to an authoritative declaration of international law forbidding the seizure or confiscation of the property of enemy nationals during time of war, at least in the case of property acquired by the enemy national before the war.” Id. at 666. Citing The Paquete Habana, our court rejected plaintiff’s contention: “Whatever force appellant’s argument might have in a situation where there is no applicable treaty, statute, or constitutional provision, it has long been settled in the United States that the federal courts are bound to recognize any one of these three sources of law as superior to canons of international law.” Id.

Few other courts have had occasion to consider the principle that, under domestic law, statutes supersede customary international law. But the principle is implicit in decisions that uphold the statutory abrogation of treaties, “since violation of a treaty is essentially a violation of the principle of customary international law requiring that treaties be observed.” L. Henkin, Foreign Affairs and the Constitution 460 n.61 (1972).

As with their refusal to take notice of statutory abrogation of treaties, the courts’ disregard of statutory breaches of customary international law is not necessarily required by the Constitution. In Professor Henkin’s view, “the framers of the Constitution respected the law of nations, and it is plausible that they expected the political branches as well as the courts to give effect to that law. Other countries ... give effect to international law over domestic legislation.” Henkin, United States Sovereignty, 100 Harv. L. Rev. at 877 (footnotes omitted) (citing constitutions of West Germany, Italy, and Greece). Nonetheless, the law in this court remains clear: no enactment of Congress can be challenged on the ground that it violates customary international law. Those of appellants’ claims that are predicated on this theory of illegality cannot succeed.

4.  Peremptory norms of international law (jus cogens)

Appellants argue that the rule requiring parties who have submitted to an international court to abide by its judgment is not only a principle of customary international {859 F.2d 929, 940} law but has become a form of jus cogens. Because such peremptory norms are nonderogable and enjoy the highest status within international law, appellants conclude that these norms are absolutely binding upon our government as a matter of domestic law as well. Indeed, appellants assert that “the obligation stemming from the ICJ judgment ... is such that it rises to the level of a constitutional obligation, which cannot be overridden by statute.” Brief for Appellants at 32-33 (emphasis in original).

Appellants cite no authority for this assertion that a peremptory norm of international law operates domestically as if it were a part of our Constitution. So far as we know, no federal court has ever considered the concept—much less the domestic effect—of jus cogens. ¶

The Vienna Convention on the Law of Treaties, which reflects the common understanding of the term, defines jus cogens only in relation to international law: ¶

Vienna Convention on the Law of Treaties {458kb.pdf}, May 23, 1969, art. 53, U.N. Doc. A/Conf.39/27, 8 I.L.M. 679 (hereinafter “Vienna Convention”) {1155 U.N.T.S. 331, 344, U.S. Senate Treaty No. 92-12, President transmitted: Nov. 22 1971, status}; see also Verdross, Jus Dispositivum and Jus Cogens In International Law, 60 Am. J. Int’l L. 55 (1960).

We need not decide whether an ICJ judgment would restrict Congress’ foreign affairs power if that judgment were in fact a peremptory norm of international law. ICJ judgments simply do not meet the Vienna Convention’s—or any other authority’s—definition of jus cogens. To see why, it is useful to clarify the criteria that determine when a rule becomes not only a customary but also a peremptory norm of international law.

Restatement (Third) of Foreign Relations Law § 102(2) (1987) (hereinafter “Restatement”) {ISBN: 0314301380, LCCN: 86020665, WorldCat}. ¶

Thus, customary international law is continually evolving. At a crucial stage of that process, ¶

Meijers, How Is International Law Made?, 9 Netherlands Y.B. Int'l L. 3, 5 (1978). ¶

As to what constitutes the necessary number of “relevant states,” the ICJ has said that ¶

The North Sea Continental Shelf Case (Judgment), 1969 I.C.J. 12, 43. ¶

Finally, in order for such a customary norm of international law to become a peremptory norm, there must be a further recognition by ¶

Vienna Convention art. 53 (emphasis added); see also Gaja, Jus Cogens Beyond the Vienna Convention, 172 Hague Acad. Recueil des Cours 271, 283-87 (1981).

Given these standards, it is clear that an ICJ judgment of the sort that was rendered against the United States in the Nicaragua case does not rise to the level of jus cogens. ¶

This conclusion rests in part on an understanding of the different types of jurisdiction that the ICJ exercises in contentious cases. ¶

On the one hand, the court adjudicates disputes that are submitted to it by all of the parties, pursuant to a “special agreement.” This agreement is often embodied in a clause of a multilateral or bilateral treaty, referring disputes that arise under the treaty to the ICJ. See S. Rosenne, The Law and Practice of the International Court 333-34 (2d ed. 1985). ¶

On the other hand, the ICJ also takes jurisdiction of cases upon unilateral application, when the court finds that the nonapplying party to the dispute has already consented to jurisdiction. ¶

Such prior consent to jurisdiction may be found in the type of treaty clause already discussed. ¶

But it may also be given by means of a declaration, deposited with the Secretary General of the U.N., in which a nation agrees to have the ICJ adjudicate legal disputes that arise with another nation that has filed a similar declaration. {859 F.2d 929, 941} ICJ Statute art. 36, ¶ 2. ¶

Adjudication of disputes pursuant to such prior unilateral consent is described as an exercise of the ICJ’s “compulsory” jurisdiction. ¶

In the present case, the ICJ found that the United States’ 1946 declaration, submitting to the ICJ’s compulsory jurisdiction, did extend to the Nicaragua dispute. The United States objected that its consent did not apply to such cases of “armed conflict.”

Fewer than a third of the U.N.’s member nations have filed unilateral declarations consenting to compulsory jurisdiction, and many of these have imposed significant reservations on the scope of their consent. See Scott & Carr, The ICJ and Compulsory Jurisdiction: The Case for Closing the Clause, 81 Am. J. Int’l L. 57, 58 (1987). ¶

More to the point, “in the 1970s and 1980s, the Court’s compulsory jurisdiction cases have been beset with non-appearing defendants.” Janis, Somber Reflections on the Compulsory Jurisdiction of the International Court, 81 Am. J. Int’l L. 144 (1987) (citing nonappearance in a case or disregard of a judgment by Iceland, France, Turkey, Iran (twice), and Albania). ¶

One scholar concludes that “States do not yet seem to have reached a stage where they are prepared to submit their disputes to international adjudication.” J. Elkind, Non-Appearance Before the International Court of Justice xiv (1984). ¶

Our conclusion need not sweep so broadly. ¶

In special agreement cases—in which both parties to a dispute simultaneously submit to the ICJ’s jurisdiction—adherence to the Court’s judgment may well be the norm. ¶

But in cases of unilateral application, in which one nation is hailed into Court on the basis of a prior consent whose scope it disputes, the record of compliance is much more uneven. ¶

We conclude there is no evidence that an ICJ judgment, in a case of general compulsory jurisdiction, represents ¶

Vienna Convention art. 53.

Our conclusion is strengthened when we consider those few norms that arguably do meet the stringent criteria for jus cogens. The recently revised Restatement acknowledges two categories of such norms: “the principles of the United Nations Charter prohibiting the use of force,” Restatement § 102 comment k, and fundamental human rights law that prohibits genocide, slavery, murder, torture, prolonged arbitrary detention, and racial discrimination. Id. § 702 & comment n; see also Randall, Universal Jurisdiction Under International Law, 66 Tex. L. Rev. 785, 830 (1988); Whiteman, Jus Cogens In International Law, With a Projected List, 7 Ga. J. Int’l & Comp. L. 609, 625-26 (1977). But see Restatement § 331 comment e (doctrine of jus cogens is of such “uncertain scope” that a “domestic court should not on its own authority refuse to give effect to an agreement on the ground that it violates a peremptory norm”).

Such basic norms of international law as the proscription against murder and slavery may well have the domestic legal effect that appellants suggest. ¶

That is, they may well restrain our government in the same way that the Constitution restrains it. ¶

If Congress adopted a foreign policy that resulted in the enslavement of our citizens or of other individuals, that policy might well be subject to challenge in domestic court under international law. ¶

Such a conclusion was indeed implicit in the landmark decision in Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980), which upheld jurisdiction over a suit by a Paraguayan citizen against a Paraguayan police chief for the death by torture of the plaintiff’s brother. The court concluded that “official torture is now prohibited by the law of nations.” Id. at 884 (footnote omitted). ¶

The same point has been echoed in our own court. Judge Edwards observed in Tel-Oren v. Libyan Arab Republic, 726 F.2d 774 (D.C. Cir. 1984), cert. denied, 470 U.S. 1003 (1985), that “commentators have begun to identify a handful of heinous action—each of which violates definable, universal and obligatory norms,” id. at 781 (Edwards, J., concurring), and that these include, at a minimum, bans on governmental “torture, summary execution, genocide, and slavery.” Id. at 791 n. {859 F.2d 929, 942} 20; see also Letelier v. Republic of Chile, 488 F.Supp. 665 (D.D.C. 1980) (upholding jurisdiction over claim that foreign government brought about assassination of its own citizen living in the United States, in violation of international law and the U.S. Constitution).

We think it clear, however, that the harm that results when a government disregards or contravenes an ICJ judgment does not generate the level of universal disapprobation aroused by torture, slavery, summary execution, or genocide. ¶

Appellants try to bootstrap the ICJ’s judgment against the United States into a form of jus cogens by pointing out that the judgment relies on a peremptory norm of international law—that is, that the ICJ invoked the norm proscribing aggressive use of force between nations when it rendered its decision in the Nicaragua case. ¶

This argument, however, confuses the judgment itself with the ICJ’s rationale for that judgment. ¶

The gravamen of appellants’ complaint is that compliance with an ICJ judgment is a nonderogable norm of international law, not that a particular judgment constitutes collateral estoppel against the United States as to its violation of a nonderogable norm. Were appellants to advance the latter contention, they would be applying nonmutual, offensive collateral estoppel against the federal government, which generally is not permitted even in domestic law cases, see United States v. Mendoza, 464 U.S. 154 (1984), much less in international law cases where our government disputes the prior court’s jurisdiction. ¶

In sum, appellants’ attempt to enjoin funding of the Contras on the ground that it violates a peremptory norm of international law by contravening an ICJ judgment is unavailing. ¶

The ICJ judgment does not represent such a peremptory norm.