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Actual Commitment to Compliance with International Law and Subsequent Supreme Court Opinions: A Reply to Professor Moore

22 Pages Posted: 25 May 2016 Last revised: 31 Mar 2017

Jordan J. Paust

University of Houston Law Center

Date Written: May 24, 2016

Abstract

This reply demonstrates that claims that the Continental Congress violated a rule of customary international law and three treaties are unproven, that overwhelming views of the Founders and Framers and early judiciary were clear that Congress and the President are bound by customary and treaty-based international law, and that there was no approval by the Founders or Framers of an alleged authority of any part of the national government to violate customary or treaty-based international law. Indeed, no one declared or embraced an alleged national discretion to violate international law. Today, at least forty-three opinions of Supreme Court Justices have affirmed (1) that Congress is bound by customary international law, and (2) that the President is bound by customary and treaty-based international law. Fifteen other Supreme Court Justice opinions are supplementary, and eighteen opinions of Supreme Court Justices affirm various exceptions to the last-in-time rule that guarantee the primacy of certain types of treaty-based rights and duties in the face of conflicting newer congressional legislation.

Keywords: bound, Congress, Constitution, Continental Congress, customary international law, exceptions to, last-in-time, executed, Executive, Founders, Framers, international law, last-in-time, law of nations, laws of war, President, revisionist, rights under treaties, supremacy, Supreme Court, treaty

Suggested Citation

Paust, Jordan J., Actual Commitment to Compliance with International Law and Subsequent Supreme Court Opinions: A Reply to Professor Moore (May 24, 2016). 40 Houston Journal of International Law (2016); U of Houston Law Center No. 2016-A-11. Available at SSRN: https://ssrn.com/abstract=2783939

Jordan J. Paust (Contact Author)

University of Houston Law Center ( email )

4604 Calhoun Road
Houston, TX 77204-6060
United States

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