Chapter on United States

Chapter on United States, in Supremacy of International Law vs. National Fundamental Principles, F.M. Palumbino, ed. Forthcoming

Santa Clara Univ. Legal Studies Research Paper No. 9-17

22 Pages Posted: 7 Aug 2017 Last revised: 19 Sep 2017

See all articles by David L. Sloss

David L. Sloss

Santa Clara University - School of Law

Date Written: August 1, 2017

Abstract

This paper is a chapter from a forthcoming book on the Supremacy of International Law vs. National Fundamental Principles, edited by Fulvio Maria Palombino. The volume explores the tension between international and domestic law perspectives on conflicts between international and domestic law. From the perspective of international law, a state may not rely on provisions of its internal law as a justification for failing to comply with its international obligations. However, from the perspective of domestic law, domestic courts sometimes invoke “national fundamental values” as a justification to disregard the supremacy of international law. This chapter examines the tension between these two perspectives in the judicial practice of the United States. Three different types of “national fundamental values” are salient in this analysis. First the value of popular sovereignty is invoked to justify application of a federal statute, enacted by a democratically elected legislature, to override international law. Second, the value of state sovereignty — i.e., the sovereignty of sub-national governments in the U.S. federal system — is invoked to limit the power of the national government to implement international obligations in areas otherwise governed by state law. Third, a fundamental commitment to protection of individual rights is sometimes invoked to invalidate federal statutes designed to implement international obligations.

The chapter is divided into four sections. The first section provides a brief overview of the U.S. constitutional system. The next three sections address conflicts: 1) between international law and federal constitutional law; 2) between international law and state law; and 3) between international law and federal statutes.

Keywords: international and domestic law, supremacy, fundamental values, popular sovereignty, state sovereignty, individual rights

JEL Classification: K10, K30, K33, K40

Suggested Citation

Sloss, David L., Chapter on United States (August 1, 2017). Chapter on United States, in Supremacy of International Law vs. National Fundamental Principles, F.M. Palumbino, ed. Forthcoming; Santa Clara Univ. Legal Studies Research Paper No. 9-17. Available at SSRN: https://ssrn.com/abstract=3012352

David L. Sloss (Contact Author)

Santa Clara University - School of Law ( email )

500 El Camino Real
Santa Clara, CA 95053
United States

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