State sovereignty and customary international law

[gerald neuman]

Yes, the claim is that there is per se a uniquely federal interest in
ensuring compliance with international law.

Yes, noncompliance with customary international law would now ground
certiorari or habeas (assuming all other appropriate conditions are met).

For a state court decision more clearly stating the OBLIGATION to comply,
see Republic of Argentina v. City of New York, 250 N.E.2d 698 (N.Y. 1969)
(tax immunity of a consulate).

Not all state court decisions express agreement that they are bound by
international law, and judges are often nervous about international law
when they don't have clear precedents or Justice Department lawyers
telling them what the international law on a subject is.

-- Gerry Neuman


On Wed, 2 Aug 2000, Volokh, Eugene wrote:

>         The cases Prof. Martin cites are quite interesting, and they
> certainly do treat customary international law as a body of law that courts
> should ordinarily comply with.  In that sense, the analogy between customary
> international law and common law is quite powerful.  And of course it makes
> sense that as courts are developing the law they would follow legal
> principles established by other authorities, even ones that don't strictly
> speaking have any binding jurisdiction within the state (much as a Nevada
> court might find itself powerfully pulled by the body of common law
> precedents developed in other states).  This is just a part of the
> common-law tradition of comity and coherence with broader legal principles.
>
>         But what I didn't see in either of these cases is an assertion that
> a state is *bound* to follow customary international law, in the same way
> that a state is bound to abide by a federal statute, a federal Constitution,
> or a properly ratified self-executing treaty.  In fact, Peters v. McKay
> specifically discussed the "rule which is applied by the courts in seeking
> to avoid any conflict between international and municipal statutory law":
> "It is firmly established that courts, in construing a statute, will indulge
> a strong presumption that the legislature did not intend to violate
> international law and will read into a statute such qualification or
> exception as may be necessary to avoid apparent conflict. This they will do
> unless it unmistakably appears that a statute was intended to be in
> disregard of a principle of international law."  This suggests that, as with
> the common law generally, customary international law may be a source of law
> for domestic courts but it subordinate to the ultimate sovereign
> pronouncements of the legislature.
>
>         Now it's possible that the Peters court was speaking solely of
> *Congressional* power to prescribe a different rule by federal statute.  If
> the "supreme federal common law" analogy applies, then it would follow that
> as between a customary international law rule and a clearly contrary command
> of a state legislature, the former would govern.  Are there cases where in
> fact state courts have done this?  More broadly, are there cases where state
> courts have found federal common law supreme over state statute, in the
> absence of a federal statute to which the common law rule is ancillary, or
> in the absence of the "uniquely federal interest so committed by the
> Constitution and laws of the United States to federal control that state law
> is pre-empted and replaced, where necessary, by . . . 'federal common law'"
> mentioned in Boyle (thanks very much to Prof. Neuman for mentioning this
> case)?
>
>         Or is the claim that there there always exists a "uniquely federal
> interest" in interpreting customary international law as binding on state
> governments in the face of contrary state sovereign decisions (e.g., a
> contrary state legislative, constitutional, or even judge-made rule)?
>
>         Again, the specific situation that triggered my constitutional
> question had to do with a state prosecuting someone, and a customary
> international law principle being interposed by the defendant.  If the state
> refuses to follow this principle, would the Supreme Court be correct to
> reverse the conviction on cert, or would a federal district court be correct
> to grant habeas?
>
>
> > -----Original Message-----
> > From: Francisco Forrest Martin [SMTP:ricenter at IGC.ORG]
> > Sent: Wednesday, August 02, 2000 1:16 PM
> > To:   CONLAWPROF at listserv.ucla.edu
> > Subject:      Re: State sovereignty and customary international law
> >
> > Prof. Volokh wrote:
> >
> > "The reason I focused on subject matter in my post is that I can certainly
> > see how customary international -- or federal common law -- can trump
> > state law in admiralty, in applying antitrust law, and the like.  What I
> > don't quite see is how article VI would allow either "federal common law"
> > or "customary international law" to trump state law in other areas (say,
> > when applying state tort law or state criminal law in state courts).
> > Neither federal common law or customary international law seems to be
> > listed in the Supremacy Clause; would it then really be supreme?"
> >
> > Prof. Henkin has written that the omission of the "law of nations" (i.e.,
> > customary international law) from the Supremacy Clause was not important
> > because the Framers perceived the law of nations as constituting
> > pre-existing obligations for the U.S. that did not require a
> > constitutional provision for enforcement.  See Henkin, International Law
> > as Law in the United States, 82 Mich. L. Rev. 1555-66 (1984).
> >
> > Prof. Volokh wrote:
> >
> > "Has the Court, or have lower courts, discussed this in either the federal
> > common law or customary international law contexts?  Are there, for
> > instance, cases in which state convictions are set aside on federal common
> > law grounds?"
> >
> > In People v. Liebowitz, 140 Misc. 2d 820 (N.Y.Co.Ct. 1988), the customary
> > international law of speciality was held to trump state law in an
> > extradition case.  See also Peters v. McKay, 238 P.2d 225 (Or. 1951) (en
> > banc) (international law trumps state statute of limitations).
> >
> > Francisco Forrest Martin
> > Ariel F. Sallows Professor in Human Rights
> > University of Saskatchewan College of Law
>