Can an earlier treaty (or "international law") trump a
s.evans at UNIMELB.EDU.AU
Mon Sep 17 13:41:36 PDT 2001
At 05:59 PM 16/09/2001 -0400, John Noble wrote:
>I think the issue is miscast as going to the relative authority of
>international and federal law. The real question is whether it is for
>Congress and the Executive, or for the courts, to define the obligations of
>international law. Something can be characterized as "international law"
>only where, when and to the extent it is enforceable. It owes its existence
>to acquiescence or superior force. The extent to which the nation is bound
>by international law, even the construction of international law, is a
>purely political question. The only issue before a court is whether federal
>law, by statute or by custom, reflects political acquiescence to the
>international rule or custom. Federal law, no matter how plainly it
>contradicts an ostensible treaty obligation, is nonetheless the definitive
I don't want to comment on the controversy about the extent to which
international law is given effect in US domestic law (particularly if there
is a statute or constitutional provision that is inconsistent with the
relevant international law norm).
I do want to comment however on some underlying assumptions about what
international law is in the following passage:
> Something can be characterized as "international law"
> only where, when and to the extent it is enforceable. It owes its existence
> to acquiescence or superior force. The extent to which the nation is bound
> by international law, even the construction of international law, is a
> purely political question.
Another view is that international law is a normative order by reference to
which judgments can be made about the behaviour of nations. The fact (if it
be one) that international law is not enforceable does not mean that it is
not "law". (Of course this is a contentious position with a large
literature taking opposing sides.)
The extent to which a nation is bound by international law is a question
that can be answered from an internal perspective in the terms of
international law as a normative order. It can also be answered from an
external perspective in the domestic legal (and political) order. (And one
possible answer to the question seen from the latter perspective is that
the extent to which the nation is bound is a "purely political question".)
It follows that it is possible within the international legal order to
evaluate the conduct of a nation even if the nation [from the perspective
of its domestic legal (and political) order] regards itself as not bound by
the international norms used in the evaluation.
Like domestic law, international law can be said to "owe its existence to
acquiescence or superior force"; but also like domestic law, international
law can be said to "owe its existence" to the judgment of the
participants in that legal order that it is useful to have a set of norms
for coordinating and evaluating the conduct of those participants.
Enforceability is not the exclusive marker of a legal order.
Finally, it is difficult to agree that "the real question is whether it is
for Congress and the Executive, or for the courts, to define the
obligations of international law" -- that confuses the internal and
external perspectives on the international legal order; the question can
only be whether it is for one or other of those domestic branches of
government to decide to what extent the obligations of international law
will be given effect in the domestic legal system.
Dr Simon Evans
Faculty of Law
University of Melbourne
E-mail: s.evans at unimelb.edu.au
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