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THE ATTITUDE OF THE UNITED STATES TOWARD INTERNATIONAL LAW
Article III of the Constitution makes specific references to the Supreme Court’s
responsibilities with respect to international law. The court’s jurisdiction includes
cases involving a foreign ambassador, controversies in which foreign states or foreign
citizens are parties, and cases involving conflicts between federal law and international
law, and disputes involving admiralty and maritime jurisdiction.
12
Historically the
Supreme Court has been a strong advocate of international law. The court issued
several important rulings in its early years that strengthened international law in the
United States.
13
In the
Pacquete Habana
case, the court upheld the right of neutral
vessels to engage in fishing without being seized by other nations.
14
The court forced
the United States Government to release the crew of the Cuban fishing vessel and
to pay compensation to its owners. In the
Chinese Exclusion
case the Supreme Court
affirmed the principle of sovereignty over a state’s territory with respect to immigration,
which it recognized as a prerogative of the sovereign.
15
In
BancoNacional de Cuba
v.
Sabbatino,
the Supreme Court invoked the Act of State Doctrine to refuse passing
judgment on the legality of Cuba’s nationalization decree.
16
The court is usually
careful when venturing into foreign affairs matters, an area it considers politically
sensitive and reserved for the two political branches. The court does not want to be
accused of meddling in the nation’s foreign policy. The court tends to rely on the
Executive Branch for treaty interpretation and to give deference to the president in
matters of international law. The court also avoids rendering decisions that conflict
with the foreign policy priorities of the administration.
During the Cold War the Supreme Court avoided adjudicating controversial
international legal issues. In situations where international law conflicts with domestic
law, the court will interpret the law in a manner consistent with U.S. international
legal obligations.
17
In recent years the court has rendered several controversial decisions
on human rights and international humanitarian law issues that contradicted the
policies of the executive branch. These decisions demonstrate the court’s willingness
to adjudicate difficult cases and render decisions that are not politically popular.
In
Roper v. Simmons
the court struck down the death penalty against minors who
committed capital murder before they were 18 years old. The court cited global trends
in rendering its decision.
18
In
Atkins v. Virginia
the court voided the death penalty
12
See
Article 3, sec. 2.
13
For a Comprehensive Review of the Role of the U.S. Supreme Court in the Interpretation and
Enforcement of International Law,
see
David L. Sloss,
et al
., eds. International Law in the U.S. Supreme
Court (2011).
14
175 U.S. 677 (1900).
15
See Chae Chan Ping v. United States
, 130 U.S. 581 S. Ct. (1889).
16
376 U.S. 398, 416 (1964).
17
See
Charming Betsy Canon (
Murray v. Charming Betsy
, 6 U.S. 64 (1804); United States v. Palestine
Liberation Organization, 695 F. Supp. 1456, 1464 (S.D.N.Y. 1988); Jeffrey L. Shore,
The PLO Observer
Mission Dispute: An Argument for U.S. Compliance with the U.N. Headquarters Agreement,
12 Fordham
I. L. J. 781, 751 (1988).
18
See, e.g. Roper v. Simmons
, 125 S. Ct. 1183 (2005).