Can an earlier treaty . . .
jrogers at UKY.EDU
Mon Sep 17 19:04:55 PDT 2001
There are so many cases indicating that customary international law does
not trump federal statutes that it is hard to know where to start. It is
not necessary to rely only on first principles.
If customary international law trumped statute, then a
fortiori non-self-executing treaties would also trump statutes. But they
don't. Foster & Elam (1829) (non-self-executing treaty not a rule for the
Court). Sei Fujii (Calif. 1952) (non-self-executing provision of UN
Charter not federal law superseding state law).
If customary international law trumped statute, then a fortiori previously
ratified self-executing treaties and executive agreements would trump later
statutes. But they don't. Head Money Cases (US 1884); Whitney v.
Robertson (US 1888); Chae Can Ping (US 1889); Diggs v. Shultz (DC Cir.
1972); South African Airways v. Dole (DC Cir. 1987); Breard v. Greene (US
1998, AEDPA applies regardless of whether multilateral Vienna Consular
Convention provides otherwise).
If customary international law trumped statute, there would be no need for
the long-accepted canon of construction that statutes are generally to be
interpreted in accordance with US obligations under international
law. Benz v. Compania Naviera Hidalgo (US 1957); McCulloch v. Sociedad
Nacional de M (US 1963); Weinberger v. Rossi (US 1982); TWA v. Franklin
MInt (US 1984); US v. Columba-Colella (5th Cir. 1979) (see esp. 604 F.2d at
360). But cases applying the canon instead disavow any court power to
override a statute clearly intended to violate US customary
obligations. The Schooner Exchange (US, Marshall CJ, 1812, see esp. 11 US
at 146); US v. PLO, 695 F.Supp. 1456 (SDNY 1988).
The famous 1900 Supreme Court opinion in Paquete Habana, which says that
international law is a "part of our law," follows immediately with the
qualifying words "where there is no treaty, and no controlling executive
executive or legislative act or judicial decision."
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