Book Reviews Paust, Jordan J. International Law as Law of the United States . Durham, NC: Carolina Academic Press, 1996. Pp. xi, 491. $45. In International Law as Law of the United States , Professor Jordan Paust has brought together in one volume 15 papers debating the relationship between international and national systems of law, specifically as it pertains to the laws of the United States in contrast to those of the international community. All but one of the book's chapters are revised versions of previously published articles, which brings a certain lack of coherence to the volume, particularly as some of the chapters are very short, others more lengthy, and because the book lacks a distinct Conclusion. Yet, this is not overly disagreeable as Paust's work can be placed in the best tradition of those scholarly works that make the strongest possible case for an argument by reiterating one thesis again and again, demonstrating how it applies to various related dimensions of a core focus of concern. It may suffice here to briefly outline Paust's main argument and to illustrate its import for a selected number of issues of international law. The basic contention of this book is that the principles and dictates of international law are directly incorporable in United States law. One of the main arguments for this thesis is the author's conviction that the Founders explicitly declared the law of nations to be part of the law of the land. International law, in other words, is, according to Paust, factually incorporated in the US legal system through its embodiment in the Constitution. This claim is carefully documented through detailed textual analyses of the US Constitution, judicial judgments, and executive decisions and congressional legislation, the latter two of which are mostly criticized by Paust when, and because, they are at odds with the incorporation argument. Among the consequences of the claim that mandates flowing from international treaties are supreme federal law, according to Paust, is that customary international law does not unavoidably clash with the laws of the land. Therefore, certain legal notions intended to provide some form of conditionality to the incorporation principle (such as the distinction between self-executing and non-self-executing treaties and the principle of last-in-time rule in the case of a clash between international and federal laws) are invalid. For example, Paust suggests, the very fact that human rights are inalienable invalidates any additional considerations over their applicability and debunks legislative superiority in the case of a clash with principles of international legality informed by human rights. Paust's argument has weighty implications, not only for the interdependence between US and international law, but also for the relationships between the three branches of US government. Paust adamantly defends the claim that the executive branch is bound by international law and must be held accountable when it acts in violation of international law. This places the President in a situation of confrontation with congressional and judicial control. Thus, for instance, Paust laments presidential proclamations that maintain reservations on, or seek to enact exceptions to, the implementation of international treaties (such as the granting of presidential pardons to violators of international law). Yet Paust is also critical of congressional legislative activities that seek to circumvent the spirit of international law. Here, he contends, the courts play a special role, particularly in protecting citizens from violations of international legal principles by the legislative and executive branches of government. Finally, making use of the same argument, Paust also criticizes the implementation procedures of certain policies. Specifically, he is critical of the practice of denaturalizing and deporting alleged Nazi war criminals, who he feels should be treated as suspects of international criminal law and hence should be prosecuted as such. As international law is characterized by universal jurisdiction, the United States government also has a universal duty to enforce the law of nations. This is a very solidly argued and well-documented book, but not every scholar of international law will be swayed by the author's argument. Of the possible criticisms of this book, I suspect, some may revolve around Paust's unnecessarily strong and overburdened conception of international law. Most clearly in the opening chapter of the book, Paust appears to be defending an essentialist conception of international common law, i.e. a perspective that posits international law as a steady factor, not determined by elites, states or other elements of force and whim, but directly and fully reflecting the common will of all. Writes Paust, "customary law of nations is human law" and, therefore, "each nation-state, indeed each human being, is a participant in ... customary international law" (at 1, 3). It seems to me that this argument is either naive and optimistic, consciously or not concealing any of the forces involved in the creation of that which actually passes for internationally binding law, or idealistic and misguided, in that it presupposes a concept of universally legitimated international law manifested in existing systems of international law. It is one thing to argue, as Paust correctly does, that the Supreme Court and other judicial authorities defend a conception of international law as reflecting the general consent of all people, but it is an altogether different matter to suggest that this is also what international law actually is. Such a concept of international law confuses the perspective of the participant with the perspective of the observer. Relatedly, Paust occasionally defends a moral attitude on the basis of a common international humanity so vigorously that he fails to uncover the dynamics of factual national resistance. And if perhaps a more idealized understanding of international common law is implied (as a standard of critique for existing law), it should be clear that both national as well as international legal systems would have to be scrutinized. Yet, despite this reviewer's reservations, one cannot but appreciate Paust's commitment to retaining a universal respect for rights and a common humanity in light of, and indeed often in spite of, national legislations and executive decision-making. After reading this book, few international law scholars will wish to defend their positions on related matters without taking into account this author's eloquently formulated arguments. Mathieu Deflem Purdue University.
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