Can an earlier treaty . . .
Francisco Forrest Martin
ricenter at IGC.ORG
Tue Sep 18 12:31:36 PDT 2001
Prof. Rogers wrote: "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)."
You are conflating two different issues: self-execution and whether customary international law can trump federal statutes. Not all customary international law is self-executing.
Prof. Rogers continues: "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).
With the exception of Breard, I believe that all of these cases dealt with bilateral treaties. Concerning Breard, I am not sure to which stage of the proceedings you are referring.
Prof. Rogers continues: "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)."
Oh, but there often IS a need for the Charming Betsy Rule. Probably more often than not, statutory language is vague. Why over-react and say that the statute violates international law?
Prof. Rogers continues: "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."
This is a common mistake. As I mentioned earlier, Jordan Paust wrote an article about this. But, I will quote from my own book,
The U.S. Supreme Court has yet to rule on whether customary international law can trump federal statutes and executive orders. The argument that customary international law cannot trump statutes has been based on dictum in The Paquete Habana:
International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for their determination. For this purpose, where there is no treaty, and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations . . . .
Some federal courts have held that "only where there is no treaty, and no controlling executive or legislative act or judicial decision will resort be made to customary international law," citing The Paquete Habana. However, the dictums language does not exclude the possibility of customary international law being used in conjunction with treaties, statutes, or executive acts as interpretive authorities. The dictums language also does not exclude the possibility of customary international law trumping treaties, statutes, or executive acts. Therefore, the conclusion that customary international law cannot trump federal statutes is overreaching.
Indeed, what is striking about the U.S. Supreme Courts dictum is its mention of judicial decisions along with executive and legislative acts. Coming before the advent of legal realism, the Supreme Courts definition of a judicial decision probably was limited to mean only an interpretation of law -- not a creation of law. The U.S. Supreme Courts reference to judicial decisions in conjunction with executive and legislative acts suggests that the Supreme Court meant that treaties, and executive and legislative acts could be used as interpretive authorities. In fact, it is also notable that the Supreme Court referred to executive acts and legislative acts. Strictly speaking, executive acts do not create laws but are undertaken by the Executive Branch in execution of federal law. And, legislative acts are not always laws (e.g., resolutions, committee reports, Senate consent to treaties). Perhaps most importantly is the Supreme Courts use of the qualifier, "controlling." This use of "controlling" suggests that not all executive and legislative acts are controlling.
For Prof. Scarberry: Yes, I agree that "a later enacted federal statute overrides
obligations created solely as a result of US ratification of a treaty" and that Congress has no power to "abrogate" customary international law -- subject to the persistent objector rule. (By the way, I would not rely on the 2d Restatement. It's outdated. There is now aThird Restatement (1985), which also is somewhat outdated.)
For Mark Tushnet: You are absolutely right.
Francisco Forrest Martin
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