International law, Sixth edition
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International Law MALCOLM N. SHAW
Dent 14 ILM, 1975, p. 797. Note also O. Schachter, ‘The Charter and the Constitution’, 4
Vanderbilt Law Review, 1951, p. 643. In Medillin v. Texas 128 S. Ct. 1346 (2008), the US Supreme Court held that the decision of the International Court of Justice in the Avena (Mexico v. US) case, ICJ Reports, 2004, p. 12, requiring the US to provide ‘further review and reconsideration’ of the convictions in question, did not constitute directly enforceable federal law as the relevant treaties (the UN Charter, the Statute of the International Court and the Optional Protocol to the Vienna Convention on Consular Relations) were non- self-executing. See further as to the Avena case, below, chapter 13, p. 773 and chapter 19, p. 1103, note 305. See also the similar conclusion adopted by the Supreme Court of the Netherlands in Association of Lawyers for Peace and Four Other Organizations v. State of the Netherlands, Nr C02/217HR; LJN: AN8071; NJ 2004/329. 179 470 F.2d 461, 466–7 (1972); 60 ILR, pp. 393, 397. See also Breard v. Greene 523 US 371, 376 (1998) and Havana Club Holding, Inc. v. Galleon SA 974 F.Supp. 302 (SDNY 1997), aff ’d 203 F.3d (2d Cir. 2000). 180 This, of course, reflects the general rule. See e.g. G. Hackworth, Digest of International Law, Washington, 1940–4, vol. V, pp. 185–6 and 324–5. See also Third US Restatement of Foreign Relations Law, 1987, para. 115(1)b. 181 See e.g. Marshall CJ, Murray v. Schooner Charming Betsy 6 US (2 Cranch) 64; Weinberger v. Rossi 456 US 25 (1982) and Cook v. United States 288 US 102 (1933). See also R. Stein- hardt, ‘The Role of International Law as a Canon of Domestic Statutory Construction’, 43 Vanderbilt Law Review, 1990, p. 1103, and C. A. Bradley, ‘The Charming Betsy Canon and Separation of Powers’, 86 Georgia Law Journal, 1998, p. 479. i n t e r nat i o na l l aw a n d m u n i c i pa l l aw 165 interpretation that where an act and a treaty deal with the same subject, the courts will seek to construe them so as to give effect to both of them without acting contrary to the wording of either. Where the two are in- consistent, the general rule has been posited that the later in time will prevail, provided the treaty is self-executing. 182 The question of a possible conflict between treaty obligations and do- mestic legislation was raised in United States v. Palestine Liberation Organ- isation. 183 The Anti-Terrorism Act of the previous year 184 provided for the closure of all PLO offices in the United States and this was construed by the Attorney-General to include the PLO mission to the United Nations, an action which would have breached the obligations of the US under the United Nations Headquarters Agreement. However, the District Court found that it could not be established that the legislation clearly and un- equivocally intended that an obligation arising out of the Headquarters Agreement, a valid treaty, was to be violated. 185 The issue of the relationship between international treaties and mu- nicipal law came before the US Supreme Court in Breard v. Greene. 186 The Court noted that ‘respectful consideration’ should be given to the inter- pretation of an international treaty by a relevant international court; 187 however, ‘it has been recognised in international law that absent a clear and express statement to the contrary, the procedural rules of the forum State govern the implementation of the treaty in that State’. 188 Accordingly, the effect of resort to a domestic procedural rule might result in prevent- ing the provision of an international treaty from being applied in any given case. The Supreme Court also affirmed that international treaties under the Constitution were recognised as the ‘supreme law of the land’, but so were the provisions of the Constitution. An Act of Congress was 182 See the decision of the Supreme Court in Whitney v. Robertson 124 US 190 (1888). The Download 7.77 Mb. Do'stlaringiz bilan baham: |
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