International law, Sixth edition
parties in the courts of the country . . . [are] in the same category as other
Download 7.77 Mb. Pdf ko'rish
|
International Law MALCOLM N. SHAW
parties in the courts of the country . . . [are] in the same category as other laws of Congress. This would seem to mean that an international convention would be- come a law of the land, where its terms determine the rights and duties of private citizens, and contrasts with the position where a political issue is involved and the treaty is thereby treated as non-self-executing. Of course such generalisations as these are bound to lead to considerable ambiguity and doubt in the case of very many treaties; and the whole matter was examined again in 1952 before the Supreme Court of California in Sei Fujii v. California. 176 The plaintiff was a Japanese citizen who had purchased some land in 1948 in California. By legislation enacted in that state, aliens had no right to acquire land. To prevent the property from going to the state, the plaintiff argued that, amongst other things, such legislation was not consistent with the Charter of the United Nations, an international treaty which called for the promotion of human rights without racial distinction. The issue raised was whether the UN Charter was a self-executing treaty and, by virtue of such, part of the law of the land, which would supersede inconsistent local statutes. The Court declared that, in mak- ing a decision as to whether a treaty was self-executing or not, it would have to consult the treaty itself to try to deduce the intentions of the signatories and examine all relevant circumstances. Following Edye’s case it would have to see whether the provisions of the treaty laid down rules that were to be enforceable of themselves in the municipal courts. The Court concluded after a comprehensive survey that the relevant provisions of the UN Charter were not intended to be self-executing. They laid down various principles and objectives of the United Nations Organ- isation, but ‘do not purport to impose legal obligations on the individual member nations or to create rights in private persons’. The Court held that it was obvious that further legislative action by the signatories would be called for to turn the principles of the UN into domestic laws binding upon the individual citizens of states. 177 Accordingly, they could not be regarded as part of the law of the land and could not operate to deflect 175 112 US 580 (1884). 176 38 Cal (2d) 718 (1952). 177 Ibid., p. 721. 164 i n t e r nat i o na l l aw the Californian legislation in question. The case was decided in favour of the plaintiff, but on other grounds altogether. 178 As is the case with the UK system, it is possible for the US legislature to take action which not only takes no account of international law rules but may be positively contrary to them, and in such an instance the legislation would be supreme within the American jurisdiction. In Diggs v. Schultz, 179 for example, the Court had to consider the effect of the Byrd Amendment which legalised the importation into the USA of strategic materials, such as chrome from Rhodesia, a course of action which was expressly forbidden by a United Nations Security Council res- olution which in the circumstances was binding. The Court noted that the Byrd Amendment was ‘in blatant disregard of our treaty undertak- ings’ but concluded that: ‘under our constitutional scheme, Congress can denounce treaties if it sees fit to do so, and there is nothing the other branches of government can do about it.’ Although in municipal terms the Amendment was unchallengeable, the United States was, of course, internationally liable for the breach of an international legal rule. 180 However, there is a presumption that Congress will not legislate con- trary to the international obligations of the state 181 and a principle of 178 See e.g. People of Saipan ex rel. Guerrero v. United States Department of Interior 502 F.2d 90 (1974); 61 ILR, p. 113. See also Camacho v. Rogers 199 F.Supp. 155 (1961) and Diggs v. Download 7.77 Mb. Do'stlaringiz bilan baham: |
Ma'lumotlar bazasi mualliflik huquqi bilan himoyalangan ©fayllar.org 2024
ma'muriyatiga murojaat qiling
ma'muriyatiga murojaat qiling