Can an earlier treaty (or "international law") trump a Congressional statute?

[Eugene Volokh]

        Hmm.  In an earlier message, I asked whether there were holdings,
preferably Supreme Court holdings, that stand for the proposition that "a
treaty -- and perhaps even non-treaty norms, since he refers to
international law that was *not enacted* by the American people -- binds
Congress indefinitely [in domestic courts and not just international ones],
much like a constitutional amendment would bind it but without the
inconvenient requirement of a 2/3 vote of both houses and a 3/4 vote of the
legislatures."  In particular, I sought examples of, "for
instance, the Supreme Court refusing to follow a Congressional act enacted
in year X because it conflicts with a treaty ratified in, say, year X-10."

        Prof. Martin points to the dictum in MacIntosh, which says "From its very
nature the war power, when necessity calls for its exercise, tolerates no
qualifications or limitations, unless found in the Constitution or in
applicable principles of international law."  But what this "pretty powerful
dicta" does *not* say is that a domestic court would set aside a
Congressional action under the war power on international law grounds.

        I'm perfectly prepared to admit that certain misconduct by Congress in
legislating under the war power might violate international law norms.  And
I can see why the Court might have found it helpful to remind Congress that
such actions may be improper (assuming the international law norms are
proper ones) and may attract condemnation and perhaps even retaliation from
other nations.  But this hardly means, it seems to me, that the Court would
refuse to enforce a later act of Congress because of an earlier treaty
setting forth some contrary "international law" principle.  Am I missing
something here?  (Incidentally, this really is quintessential dictum -- the
question in MacIntosh was whether people who refused to agree to bear arms
on behalf of the U.S. could be excluded from citizenship, and there was no
claim that international law had anything to say to this.)

        As to the Ship Rose, 1900 WL 1409, as I understand this case -- and I'm not
remotely knowledgeable on this area of the law, and would like to hear what
others on the list have to say about it -- it involved a claim brought
against the U.S. on behalf of a ship that had been the victim of "French
depredations."  Under the relevant statute, the validity of the claims was
specifically to be determined with reference to, among other things, the
rules of international law.  It was in the course of applying this statute,
that the court said that "[i]f . . . there was any conflict between the
municipal law of the United States, as exemplified in the statute, and the
well-recognized principles of international law, the latter must prevail in
the determination of the rights of the parties."  So it wasn't just a case
of an international law principle trumping a conflicting federal statute --
it was the case of a much-later enacted statute (the statute giving the
court of claims jurisdiction) that specifically ordered courts to look to
international law principles leading a court to ignore the effect of a
much-earlier enacted statute.

        So I suppose this horse is still looking to see where the water supposedly
is.  For now, my (necessarily always tentative) judgment remains:  Under
U.S. law (whatever foreign courts or governments might do), where there's a
clear conflict between an earlier-enacted treaty (or a general international
law norm) and a later-enacted Congressional Act, a U.S. court will follow
the later Act and not the earlier treaty.

        Eugene

Francisco Martin writes:

> Some of you repeatedly have insisted that I have not provided case law
> demonstrating that customary international law trump can trump federal
> statutes.  Please read The Ship Rose in which a federal claims court held
> that customary international law governing ship searches during
> war trumped
> a federal statute authorizing U.S. ships to resist (1 Stat. L., 572).
> Although the U.S. Supreme Court has not clearly held that customary
> international law can trump a federal statute, in Macintosh it
> did state in
> dicta that Congress could not violate international law -- even if it was
> acting under its war powers authority.  That is a pretty powerful dicta
> given that states of emergency usually allows nations to derogate
> from their
> legal obligations.
>
> I have been trying to figure out why there has been opposition
> expressed on
> this listserv to the ideas that customary international law is federal law
> and that it can trump federal statutes/executive orders.  I think that I
> have figured it out in part.  I believe that some of my respondents may be
> evidencing a fundamental conceptual confusion about the nature of
> customary
> international law (as reflected in, e.g., the claim that customary
> international law is federal common law and a bifurcation of
> treaty law and
> customary international law).  Customary international law is not merely
> customary law but mostly treaty law -- especially multilateral treaty law.
> The term "law of nations" refers to all international law.
> Indeed, the term
> "customary international law" is a rather recent term.  My use of the term
> "customary international law" was not to designed to highlight
> some kind of
> separate corpus of international law but to recognize that
> certain treaties
> have greater legal authority by virtue of their customary international
> legal status.
>
> The reason why customary international law norms, which are
> reflected, e.g.,
> in treaties to which the U.S. is not a party, can still be binding on the
> U.S. is because the U.S. did not express an objection to the norms during
> their emergence. If the U.S. had, it would not be bound under the
> persistent
> objector rule.  Of course, this issue is moot as a practical
> matter because
> the U.S. rarely -- if ever -- has objected to an emerging customary
> international legal norm and the U.S. always participates in the
> drafting of
> global multilateral treaties (during which period the customary
> international law norm emerges) and often signs the treaty.
>
> As Prof. Adler correctly points out, the Supremacy Clause does not mention
> the "law of nations" nor "customary international law."  Admittedly, I
> always have wondered why the Framers did not use the term "law of nations"
> in the Supremacy Clause.  However, the point is moot.  Numerous
> federal and
> state courts have recognized that customary international law is federal
> law.  Think of all the ATCA cases in which plaintiffs have
> successfully used
> customary international law.  Think of the state cases in which customary
> international law has been used to trump state law because it is
> recognized
> as federal law.
>
> Moreover, even though only the word "treaties" is used in the Supremacy
> Clause, what do you think mostly constitutes customary international law?
> Where do you find reflections of jus cogens norms?  Treaties.  The point
> that I originally made about the Fourth Geneva Convention was
> that it was a
> multilateral treaty reflecting customary international law.  This
> is hardly
> controversial.  The controversial issue is whether customary international
> law can trump federal statutes.  I recognize that there is divergent case
> law on this.  The line of cases holding that customary international law
> cannot trump federal statutes/executive orders is very recent and is based
> on an overreaching interpretation of the vague dicta in the
> Paquete Habana.
> The first case was from the 1970s (I recall), and it and subsequent cases
> did not even address the earlier line of cases.  (Jordan Paust
> wrote a very
> good article about this.)
>
> But most importantly, as I also argued, it makes no sense legally and
> operationally for other federal law (whether statute, executive order, or
> bilateral treaty) to trump customary international law -- especially if it
> reflects jus cogens.
>
> I am particularly concerned about these issues as the U.S. begins war
> preparations that will engage other allied nations.  Many of these nations
> have international legal obligations that at first may not seem
> to be shared
> by the U.S.  (e.g., the McCann and Satik rules under the European
> Convention
> on Human Rights governing use of force, which reflect customary
> international legal norms).  Nevertheless, practically speaking, the U.S.
> will have to observe these rules in order to not create operational
> difficulties.  And, legally speaking, the U.S. also is bound by
> these rules.
> At this crucial point in America's survival, we cannot afford to adhere to
> isolationist constitutional beliefs that not only have doubtful legal
> validity but also can serve to undermine the U.S.' moral and
> legal position
> that it can undertake military action -- a position that other nations
> overwhelmingly have recognized in the last few days.
>
> Just a couple of other specific points:
>
> For Prof. Blumstein:  Your points are well taken.  I should have been
> clearer about what I meant when I said you were wrong. Regarding the Mikva
> dicta, what I should have said is that the Mikva dicta "lends support" to
> the claim that jus cogens has equal authority to the constitution.
>
> For Prof.Volokh:  I think that I may have misunderstood your
> characterization of my claim regarding certain international
> legal norms as
> being binding on the U.S. indefinitely.  No international legal norm is
> binding on any state indefinitely.  Even jus cogens norms can be
> trumped by
> a new jus cogens norm, according to the Vienna Convention on the Law of
> Treaties.  Although you may not find the water sweet, I hope that you now
> find it drinkable.
>
> Francisco Forrest Martin
> Ariel F. Sallows Professor of Human Rights
> University of Saskatchewan College of Law
>
> -----Original Message-----
> From: Jonathan H. Adler <jha5 at PO.CWRU.EDU>
> To: CONLAWPROF at listserv.ucla.edu <CONLAWPROF at listserv.ucla.edu>
> Date: Friday, September 14, 2001 5:22 PM
> Subject: Re: International Law & the Supremacy Clause
>
>
> >Prof. Martin wrote:
> >"there have been numerous federal court decisions (including a
> U.S. Supreme
> >Court case) explicitly holding or stating in dicta that customary
> >international law trumps federal statutes and executive orders."
> >
> >The problem is that Prof. Martin has *not* cited numerous court decisions
> >*"explicitly holding"* that customary international law is the
> Supreme Law
> >of the Land.  There is dicta that can be read to suggest as
> much, but it's
> >just dicta.  And there is certainly language in other cases that could be
> >read suggest the opposite, including the Mikva opinion referenced earlier
> in
> >this thread.  What Prof. Martin has yet to provide is a case in which an
> >otherwise valid federal enactment was struck down by a federal court for
> >violating customary international law.
> >
> >Even accepting Prof. Martin's interpretation of the relevant
> cases, this is
> >a separate question from whether the *Constitution* adopts customary
> >international law under the Supremacy Clause.  Prof. Martin originally
> >claimed that "The framers of our Constitution accepted that international
> >law that was not enacted by the American people still was binding law and
> >recognized this by adopting the Supremacy Clause."  I responded that
> nothing
> >in the Constitution's text -- and certainly nothing in the Supremacy
> >Clause -- supports that view.  Any support for that position
> must come from
> >extra-textual sources.  Thus far, extra-textual sources providing no more
> >than oblique support for the above claim is all that Prof. Martin has
> >provided.  If I appear to reject Prof. Martin's claim "out of
> hand," it is
> >because he has not given his claim much support.
> >
> >JHA
> >
> >-------
> >Jonathan H. Adler
> >Assistant Professor of Law
> >Case Western Reserve University School of Law
> >11075 East Boulevard
> >Cleveland, OH 44106
> >ph) 216-368-2535
> >jha5 at po.cwru.edu
>