Can an earlier treaty (or

Scarberry, Mark Mark.Scarberry at PEPPERDINE.EDU
Mon Sep 17 11:39:25 PDT 2001

 May I suggest then that the recent change in focus of "international law"
renders earlier statements of its binding force almost completely
inapposite? The new international law that provides individual rights is not
the same genus as that which was restricted to issues between and among
states. It is rather obviously a different matter (in terms of policy and
effect on sovereignty) to say (1) that international law binds us in some
sense in how we deal with other states--a matter that will in any event
almost never be justiciable, and to (2) that it binds us in justiciable
controversies among individuals and between individuals and the government.

Mark Scarberry
Pepperdine University School of Law

-----Original Message-----
From: Francisco Forrest Martin
Sent: 9/17/01 10:15 AM
Subject: Re: Can an earlier treaty (or

Prof. Scarberry wrote: "At the risk of repeating something perhaps said
earlier, of course there aretimes when the courts cannot remedy a
violation by the US Congress of what the courts might consider to be
binding law. There is still some scope for the political question
doctrine. Its broadest scope probably is in matters of international or
foreign affairs, the same subject matter of most international law."

Actually, the subject matter of most international law today is probably
human rights if measured in terms of the number of instruments (global
and regional) and cases.  International human rights law is mostly
concerned with transnational rights -- not really inter-national rights.
The political question doctrine probably is most (only?) appropriate in
the inter-national context (see, Goldwater v. Carter).  Furthermore, the
issue of the relief sought is relevenat. If the relief sought is only
money damages, than the case is justiciable. See Scheuer v. Rhodes.

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

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