War (International)

[Fisch, William B.]

With respect, Prof. Martin's description of the opinion in Committee of U.S. Citizens Living in Nicaragua v. Reagan is inaccurate.  The court did not say even in dictum that jus cogens norms could have domestic legal effect; rather, it said that no U.S. court had even considered the concept, much less the domestic effect, of jus cogens in international law.  It went on to say that it didn't need to rule on the possibility that a jus cogens norm could have domestic effect equivalent to the Constitution, since the norm advocated by the plaintiffs -- the duty of a state under the Charter to give effect to judgments of the International Court of Justice -- did not rise to the level of jus cogens.  It then proceeded, on the clearest possible dualist basis, that none of the international legal norms -- treaty-based or customary -- invoked by the plaintiffs to invalidate U.S. funding for the Contras is enforceable in U.S. domestic courts.
I might add that the Nuremberg tribunals were not U.S. domestic courts, and in any event were established with the explicit mandate of applying international law to Nazi activities.  If and when, pursuant to the Constitution, a U.S. domestic court is given such an explicit mandate (as in the case of the Prize Courts whose judgment was reviewed in the Paquete Habana), we can expect to see it apply that law, and do so with no embarassment to the dualist principle.
Bill Fisch