State sovereignty and customary international law

[Francisco Forrest Martin]

Prof. Neuman wrote:

"Customary international law is NOT operative as U.S. law when it is trumped by what has been termed "a controlling executive or legislative act," see The Paquete Habana, 175 U.S. 677, 700 (1900)."

I think that it is important to stress that the executive and judicial branches have held inconsistent positions regarding whether customary international law can trump federal statutes or executive acts.  Prof. Paust has written some good articles about this.  See, e.g., Paust, Rediscovering the Relationship Between Congressional Power and International Law: Exceptions to the Last in Time Rule and the Primacy of Custom, 28 Va. J. Int'l L. 393 (1988).  There have been US Courts of Appeal, district courts, federal claims courts, US Attorney General Opinions, and a Presidential Statement stating that customary international law trumps federal statutes or executive acts.  And, a Prof. Neuman already has noted, there are several US Courts of Appeals decisions holding that customary international law does not.  For these latter cases, I think that it is important to note, however, that these cases never addressed when the customary international law norm emerged, never addressed wh!
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ether the purpose of the federal statute or executive act was to supercede an extant customary international law norm, nor (as Prof. Henkin has argued) addressed whether the executive act was executed by the President in his role as Commander-in-Chief.

As for making predictions about how courts will, in fact, behave regarding international law, I think that it is important to note that both Justices O'Connor and Ginsburg have publicly commented on the federal judiciary's (including themselves and their bretheren on the Supreme Court) unfamiliarity with international law.  Consequently, we should formulate our approach to describing the existing US law governing international law with a strong prescriptive element given some of the poor judicial analyses recently coming out of the federal courts, most notably the cases referred to by Prof. Neuman.

Francisco Forrest Martin
Ariel F. Sallows Professor in Human Rights
University of Saskatchewan College of Law