International Law & the Supremacy Clause (was

[gerald neuman]

Dear Friends,
I am on a research leave in Europe at the moment, with somewhat limited
e-mail capacity.  I do not want to repeat what I said in a prior thread,
concerning the conventional understanding of the place of international
law in the U.S. legal system, which I believe differs from Prof. Martin's
views, especially with regard to federal statutes.
I do want to emphasize a few  points:
First, the choice is not between disrespect for international law and
adoption of a fully monist system in which international law trumps all
domestic law sources.
Second,the question of whether the U.S. "is bound" by an international
obligation should not be confused with the question whether a U.S. court
is authorized to enforce the obligation, or teh question of the status of
the obligation in the domestic legal system (which, as Prof. Martin
rightly observes, is neither purely dualist nor monist).
Third, the rhetoric of rejecting international obligations as "not
enacted" by the people of the United States may be misleading.  The U.S.
also asserts the *power* to violate obligations that it *has* accepted
through
democratically legitimate means (e.g., to enact statutes that violate
prior treaties -- these statutes do not "repeal" the treaties in the sense
of depriving them of legal force, even if they are no longer domestically
enforceable).  (I mean to be *descriptive* here, not critical.)  And the
LeGrand case that Prof. Blumstein cites concerns
the interpretation of treaties to which the U.S. voluntarily became a
party (and in whose drafting the U.S. played a substantial role), although
the U.S. may not now like the interpretation given to those treaties by
the tribunal to which the U.S. voluntarily agreed to submit the dispute.
Part of "sovereignty" is the ability to enter into agreements that have
significant consequences.

-- Gerry Neuman