Rediscovering the Relationship between Congressional Power and International Law: Exceptions to the Last in Time Rule and the Primacy of Custom

57 Pages Posted: 10 Jun 2014

See all articles by Jordan J. Paust

Jordan J. Paust

University of Houston Law Center

Date Written: June 9, 2014

Abstract

This article identifies the four exceptions to the last-in-time rule recognized in Supreme Court and other cases (e.g., (1) the indirect incorporation or constitutional status exception, (2) the executed or vested exception, (3) the rights under treaties exception, and (4) the law of war or war power exception). Each exception to the last-in-time rule assures the primacy of international law in case of an unavoidable clash with a subsequently enacted federal statute. Before applying the last-in-time rule there are two steps to consider; (1) Charming Betsy and its offspring require that federal statutes be interpreted consistently with international law, and (2) if that is not possible, the Cook rule requires the primacy of a treaty over subsequent federal legislation unless Congress expressed a clear and unequivocal intent to override international law.

Keywords: Charming Betsy, CIL, clear intent to override, Congress, Cook rule, customary, exception, executed or vested, federal statute, indirect incorporation, international law, human right, interpret, last-in-time, law of war, primacy, rights under treaties, Supreme Court, treaty, war power

Suggested Citation

Paust, Jordan J., Rediscovering the Relationship between Congressional Power and International Law: Exceptions to the Last in Time Rule and the Primacy of Custom (June 9, 2014). 28 Virginia Journal of International Law 393 (1988); U of Houston Law Center No. 2014-A-30. Available at SSRN: https://ssrn.com/abstract=2447726

Jordan J. Paust (Contact Author)

University of Houston Law Center ( email )

4604 Calhoun Road
Houston, TX 77204-6060
United States

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