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

[Francisco Forrest Martin]

Prof. Volokh wrote: "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."


Are you saying that although the Supreme Court states that Congress legally
cannot violate international law, U.S. courts cannot require Congress to
obey the law?

Prof. Volokh wrote: "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."


Actually, wasn't Congress by enacting the later statute effectively
recognizing that its laws could not violate international law?

Also consider that another branch of our government also has opined that
international law trumps federal statutes.  11 Op. Att'y Gen. 297, 299-300
(1865) (Congress has no power to abrogate customary international law or to
authorize its infraction as "it is binding on all branches of our government
and citizens"); 9 Op. Att'y Gen. 356, 362-63 (1859) (public  law of nations
"must be paramount to local law in every question when local laws are in
conflict" and "[w]hat you will do must of course depend upon the law of our
own country, as controlled and modified by the law of nations").

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