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Published online by Cambridge University Press: 04 May 2017
The relations existing in the various states of the world, and particularly in the various states of Europe and America, between international law and municipal law, or, as it might better be called, national law, have been made the subject of several studies in recent years. In view of the probable necessity for many years yet to come of relying for the development and application of international law upon national legislatures, courts, and executive or administrative officials, in the absence of any adequate system of international legislatures, courts, and executive officials, this borderland between international law and national law deserves the most thorough attention. But the attention given to the way in which international law is enforced by national courts, the way in which international treaties are supplemented by national statutes, and to other similar phases of the general subject, has led to some neglect of the central question in the problem, or, at least, has not afforded an adequate answer to that question. It is the purpose of this paper to state this question as it has arisen in cases tried in American courts, to attempt to find the proper solution for it, and to compare that solution with ruling case law on the point in the United States.
1 Triepel, H., Droit International et Droit Interne, trans, by Brunet, R., Washington, 1920;Google Scholar Pieciotto, C. M., Relation of International Law to the Law of England and the United States, New York, 1915;Google Scholar Wright, Q., “International Law in its Relation to Constitutional Law,” in this JOURNAL, Vol. XVII, pp. 234–244 (April, 1923), and references there cited.Google Scholar
2 Wright, Q., Enforcement of International Law through Municipal Law in the United States, Urbana, 1916.Google Scholar
3 Strictly speaking, there is never a conflict of valid laws, of course, for where laws appear to conflict it will always be found that one of the laws in question is invalid as ultra vires, and therefore no law at all. But the presentation of the problem in terms of a supposed conflict has certain merits of simplicity; the correct method of presentation would demand of writer and reader alike too great a degree of dialectical and mental effort in the presentation to permit due attention to the principal questions at issue.
4 The common law, executive orders, and judicial decrees are other forms of national law involved, and State constitutions, statutes, common law, orders, and decrees are not to be overlooked entirely. But they may be dealt with much more simply if the more difficult cases here treated can be settled satisfactorily. Attention may later be turned to the other forms of law here named.
5 This ruling was obiter in the Hijo case, but it may be taken as a succinct statement of a rule laid down in many earlier cases.
6 In Clinton Bridge the court pretended to base its decision on “right reason,” and upon Georgia, v. Stanton, 1867, 6 Wallace 50, and The Amiable Isabella, 1821, 6 Wheaton 1, but neither of these cases contains authority for the rule of decision, and the language of the court clearly indicated that the court was in reality following Taylor, v. Morton.Google Scholar
7 It should be emphasized that in no decision has the Supreme Court added anything to the reasoning of Taylor v. Morton. No new grounds of decision whatever have been offered.
8 Chae Chan, Ping v. United States (Chinese Exclusion Case), 1889, 130 U. S. 581, 600.Google Scholar
9 The reference, of course, is to Marbury, v. Madison, 1803, 1 Cranch 137, 176–178.Google Scholar
10 Garner, J. W., International Law and the World War, New York, 1920, §437 and following.Google Scholar
11 Hyde, C. C, International Law, Chiefly as Interpreted and Applied by the United States, Boston, 1922, §548.Google Scholar
12 Society for the Propagation of the Gospel v. New Haven, 1823, 8 Wheaton, 464.Google Scholar
13 On methods of terminating treaties under international law, see Moore, J. B., Digest of International Law, Washington, 1906, §§770–780, and Hyde, §§538–551, especially §546.Google Scholar
The position in Taylor v. Morton on this point is at times defended by distinguishing between “abrogation,” as it is said, “municipally” or “so far as the people and authoritiesof the United States are concerned,” and abrogation internationally. Obviously, the use of the term “abrogation” in the former case is improper; “abrogation” of a treaty is a matter of international procedure, and what we have here is not abrogation but violation. For an example of the absurdities to which the decision of Taylor v. Morton on this point leads, see the statement: “It is legally possible, though it may constitute a breach of the treaty, for one of the parties to abrogate it without the consent of the other,” written by Justice Day and Supreme Court Reporter Butler in the article on “Treaties,” in Cyclopedia of Law and Procedure New York, 1911, Vol. XXXVIII, p. 973, relying on Ropes v. Clinch, 1871, 8 Blatch-ford 304.Google Scholar The treaty is not “abrogated” in any accurate sense, and it does not cease to be binding upon the people, the nation, or the public authorities—even Congress, pretending to abrogate it, remains under legal obligation to satisfy the complaining cosignatory.
14 Charlton, v. Kelly, 1913, 229 U. S. 447, 476.Google Scholar
15 1 Statutes at Large, 578;Google ScholarPubMed Hooper v. United States, 1887, 22 Court of Claims, 408, 416, 417 (“the abrogating act of July 7, 1798,” “The abrogating act passed by Congress,” “Abrogation of a treaty may occur . . .” etc.).Google Scholar Some question might be seriously raised as to whether Congress has or has ever had power to act in this capacity in conducting the foreign relations of the country; the court in the principal case held that the abrogating act had been passed or issued “from competent authority,” but that is not entirely clear (see following note). And it is again to be insisted that this is irrelevant here in any event, for in Taylor v. Morton and similar cases not abrogation for cause but violation for interest is at stake.
16 Moore, Digest, J. B., §774.Google Scholar
17 In Heathfield, v. Chilton, 1767, the British court (King's Bench) held that a national statute could not alter the law of nations (4 Burrow 2015), and in The Creole, 1855, the American-British Claims Commission held that British statutes could not justify violation of American rights under international law (Reports of Commission, 241).Google Scholar
18 Foster, v. Neilson, 1829, 2 Peters, 253.Google Scholar
19 Hilton, v. Guyot, 1895, 159 U. S. 113, 163.Google Scholar
20 Hyde apparently considers some sort of lack of jurisdiction as alone standing in the way of court action to prefer international law over conflicting statutes; Hyde, §5.
21 See also Secretary of State Bayard to Charg$$$ to Mexico Connery, 1 November, 1887, in Foreign Relations, 1887, 751:Google Scholar “It has been constantly maintained and also admitted by the United States that a government cannot appeal to its municipal regulations as an answer to demands for the fulfillment of international duties. Such regulations may either exceed or fall short of the requirements of international law and in either case that law furnishes the test of the nation's liability and not its own municipal rules.” In United States v. Jeffers the Circuit Court for the District of Columbia disregarded a national statute in enforcing international rules of diplomatic immunity (Federal Case No. 15, 471).Google Scholar
22 Suggested in The Manhasset, 1884, 18 Fed. Rep., 918, 922.Google Scholar
23 Hyde holds that even “as the local law of each State, . . . International Law ... is necessarily superior to any administrative regulation or statute or public act (constitution?) at variance with it;” work cited, §5.Google Scholar
24 Wright, Q, as cited above, note 1, in this JOURNAL, Vol. XVII, pp. 242–244.Google Scholar
25 See Dillon's Case where Amendment VI was construed so as to save a treaty and a rule of customary law literally at variance with it (Federal Case No. 3914), cited in United States v. Trumbull, 1891, 48 Fed. Rep. 94;Google Scholar the construction of Amendment XVIII to take account of the international immunity of diplomatic establishments and communications, New York Times, 17 October and 24 October, 1920, p. 1, and 15 May, 1921, p. 20;Google Scholar and the operation of rules of common international law to permit confiscation of property without compensation, in spite of the Vth Amendment to the Constitution, The Ouachita Cotton, 1867, 6 Wallace 621.
26 “It would not be contended that it (the treaty-making power) extends so far as to authorize what the Constitution forbids,” said the court in Geofroy, v. Riggs, 1890, 133 U. S. 268, 267.Google Scholar
27 Geofroy v. Riggs, supra.
28 See the Dillon case, cited, above, in note 25.
29 Lattimer, v. Poteet, 1840, 14 Peters, 4, 14 (State territory);Google Scholar Ware, e. Hylton, 1796, 3 Dallas, 199, 237 (State statute and constitution);Google Scholar Corwin, E. S., National Supremacy, Princeton, 1913, 132–134.Google Scholar
30 It is interesting to note that the weakest form of international law, custom (regarding diplomatic privileges), has fared better in conflict with the strongest form of national law, subsequent Constitutional provisions (XVIII Amendment) than the strongest form of international law (treaties) in conflict with mere statutes.
