The Charming Betsy and the Paquete Habana

Landmark Cases in International Law, Forthcoming

UC Davis Legal Studies Research Paper No. 485

21 Pages Posted: 28 Feb 2016 Last revised: 24 Oct 2017

William S. Dodge

University of California, Davis - School of Law

Date Written: February 25, 2016

Abstract

This chapter for the book “Landmark Cases in Public International Law” discusses two famous U.S. Supreme Court decisions — The Charming Betsy (1804) and The Paquete Habana (1900). Although written nearly one hundred years apart, each decision appears to stand for similar propositions — that international law has an important place in the law of the United States, but that U.S. domestic law should prevail in the event of conflict. What often goes unnoticed is that the Supreme Court decided these cases against the backdrop of very different understandings about international law and its relationship to U.S. domestic law.

In addition to discussing the background and significance of each case, this chapter describes three shifts in U.S. thinking about customary international law during the nineteenth century. First, the theoretical foundations of customary international law shifted away from natural law towards positivism. Second, the consent requirement for making customary international law shifted from the individual consent of each state to the consent of states generally. And third, the U.S. understanding of the relationship between international law and domestic law shifted away from monism towards dualism — away from an understanding that international law was part of U.S. law unless displaced, towards an understanding that international law was not part of U.S. law unless adopted. The Charming Betsy and The Paquete Habana are landmark cases not because they changed the course of international law in the United States but because they reveal changes in the landscape.

Suggested Citation

Dodge, William S., The Charming Betsy and the Paquete Habana (February 25, 2016). Landmark Cases in International Law, Forthcoming ; UC Davis Legal Studies Research Paper No. 485. Available at SSRN: https://ssrn.com/abstract=2738241 or http://dx.doi.org/10.2139/ssrn.2738241

William S. Dodge (Contact Author)

University of California, Davis - School of Law ( email )

Martin Luther King, Jr. Hall
Davis, CA CA 95616-5201
United States

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