Can an earlier treaty (or

[Mark Tushnet]

In response to Mark Scarberry's suggestion that I "miss[] the point," I
reprint the posting to which I was responding, which refers
unqualifiedly to "international law" (with one earlier reference to the
"new international law," which -- I would have thought, given the
generality of the subjects discussed -- included multilateral human
rights treaties in addition to "customary international law":  "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."  The "different matter" described in the last sentence is,
as a matter of simple syntax, this:  "international law [without
expressed qualification] binds us in justiciable controversies among
individuals."  And that, as Martin v. Hunter's Lessee (and of course
many other cases) shows, is true, contrary to the suggestion that it is
not.

In light of Professor Martin's argument that a great deal of the "new
international law" consists of multilateral treaties coupled with the
development of customary norms that bind all but "persistent objectors,"
I think precise statements of what's at stake and what's at issue are
necessary.  My own view is that as a matter of legal-realist prediction
Professor Martin's critics are right in the contention that the U.S.
courts would not enforce even a customary norm to which the U.S. had not
been a persistent objector in the face of a statute enacted after the
development of that norm, that the predictive question is harder but
probably comes out the same way with respect to a statute enacted prior
to the crystallization of the customary norm, and that the real
disagreement between Professor Martin and his critics is over the
jurisprudential significance of legal-realist predictions.
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