VOLOKH at MAIL.LAW.UCLA.EDU
Mon Nov 4 17:37:13 PST 2002
My apologies if I haven't fully answered Prof. Martin's question; I
thought I had, but to make it clear, the answer seems to me easy: If a
statute is enacted after a treaty (multilateral or bilateral) is ratified,
and the statute conflicts with the treaty, the statute prevails. That's
equally applicable to multilateral treaties and bilateral ones. I thus
agree with Bill Fisch's recent post on the very same topic.
What about "emerging and re-emerging" international "norms"? Well, an
Act of Congress trumps conflicting "emerging and re-emerging" international
"norms." Under U.S. law, we govern ourselves, through the Congress (and
through state governments). The judgments of international bodies and
international commentators, whom we did not elect and who are not
responsible to us, do not supersede (for U.S. law purposes) the judgments of
our elected representatives.
Francisco Martin writes:
I repeatedly have asked Prof. Volokh to tell me how the last-in-time rule
could be applied to the ICCPR. He has not answered my question. The reason
why the last-in-time rule cannot be applied to, e.g., the ICCPR, is because
it reflects conventional customary international law that does not readily
admit to a date of emergence against which the date of a congressional
enactment can be compared for applying the last-in-time rule. In other
words, the application of the last-in-time rule is often impossible. That is
why there is no last-in-time rule for customary international law under U.S.
law. If you conceive of the international legal obligations of the ICCPR
merely as treaty law, perhaps you can use the deposit of the instrument of
ratification as a date against which to compare the date of subsequent
congressional legislation. However, the ICCPR (! like most multilateral
treaties) also reflect customary international legal obligations. These
norms are constantly emerging and re-emerging as states become parties to
the ICCPR and as parties undertake practices pursuant to the ICCPR. There
often is no "date" by which to establish whether the treaty was the earlier
or after the enactment of the congressional legislation.
By the way, the issue of whether the ICCPR is self-executing or not, is not
relevant to whether it is binding on the U.S.
Francisco Forrest Martin
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