Does international law supersede Congressional acts?

[Francisco Forrest Martin]

I appreciate Prof. Blumstein taking the time and reviewing the Nicaragua case.

A couple of comments:  First, he's wrong about my reliance on Mikva's dicta regarding jus cogens.  Look at page 941 of the opinion, which he did not include in his posting.

Second, -- and this should be an obvious point which many folks seem to be missing -- if jus cogens is recognized as peremptory law that binds nations all the time (until a new jus cogens norm evolves) and trumps treaties, then the U.S. is bound at least on the intenational law level to invalidate conflicting federal statutes.  Jus cogens already has been recognized as U.S. law.  See, e.g., Siderman de Blake v. Argentina, 965 F.2d 699 (9th Cir. 1992), Hawkins v. Comparet-Cassani, 33 F. Supp. 1244 (C.D. Cal. 1999).  Therefore, by definition, jus cogens trumps conflicting federal statutes because it has even greater authority than treaties which are considered to be equal to federal statutes.

Finally, the U.S. constitutional legal regime is not dualist. (Canadian and UK legal systems are.)  It is quasi-dualist because some treaties and other international legal obligations do not need implementing legislation. See, e.g., Warren v. United States, 340 U.S. 523 (1951).

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