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authority. Baker v. Cam, 369 U.S. 186, 217, 82 S.Ct. 691, 710, 7 tions to the jury will reflect this decision if any transgression makes it
L.Ed.2d 663 (1962)." necessary.
Certain clearly defmed areas have traditionally and necessarily been h. The purpose of the preceding discussion has been to
left to other departments of the government, free from interference by demonstrate the manner in which and degree to which in-
the judiciary. One such area is foreign relations. Baker v. Cam, supra, at ternational law, in the form of treaties and customary
211, 82 S.Ct. at 691.
It is true that not every case which touches the foreign-relations norms, has been integrated into the American legal
power of the country is necessarily a "political question." Courts have system. As noted, international jurisprudence is con-
usually decided the constitutional questions concerning international sidered a part of U.S. law. 14 The role it plays, however, is
agreements, Reid v. Covert, 354 U.S. 1,77 S.Ct. 1222, 1 L.Ed.2d 1148 largely dependent on whether it is considered by courts to
(1957), but the corresponding question of international law has been
treated as a "political question." be in contlict with existing U.S. law or practice. In speak-
The activities of these defendants were directed towards the Selective ing to this point, Restatement, Second, Foreign Relations
Service System, which system counsel has admitted is not criminal or il- Law of the United States urges accommodation:
legal in and of itself. What is called into question here in the utilization 5 3. Effect of Violation of International Law . . .
of the armed forces by the executive and legislative branches. It cannot (3) If a domestic law of the United States may be interpreted either
be disputed that the recognition of belligerency abroad, and the
measures necessary to meet a crisis to preserve the peace and safety of in a manner consistent with international law or in a manner that is in
this country, is uniquely an executive and a legislative responsibility. contlict with international law, a court in the United States will in-
Whether the actions by the executive and the legislative branches in terpret it in a manner that is consistent with international law.
utilizing our armed forces are in accord with international law is a ques- Comment:
tion which necessarily must be left to the elected representatives of the J. Application of international law in courts in the UnitedSiates. Inter-
people and not to the judiciary. This is so even if the government's ac- national law is applied by courts in the United States without the
tions are contrary to valid treaties to which the government is a signato- necessity (i) of pleading and proving it; or (i) of showing an affirmative
ry. And the Supreme Court has held that Congress may constitutionally acceptance by legislative or other national authority of the rule of inter-
override treaties by later enactment of an inconsistent statute, even national law applied. However, if there is domestic legislation contrary to
though the subsequent statute is in violation of international law. international law that is also pertinent, courts in the United States will
The categorization of this defense as a "political question" is not an normally apply the legislation. But courts in the United States interpret
abdication of responsibility by the judiciary. Rather, it is a recognition general or ambiguous words in statutes in a manner consistent with in-
ternational law as understood by them.
-
that the reswnsibilitv is assumed bv that level of aovernment which
under the Constitution and international law is authorized to commit i. This examination of the relationship between inter-
the nation. national and state law has, until this point, limited itself to
The "Numberg Defense" is premised on a finding that the govern- the national level, i.e., to an interpretation of international
ment is acting in violation of international law in waging an aggressive norms by state courts in light of domestic legislation. At-
war, and, as such, cannot be raised here because the question of viola-
tions of international law by the government is uniquely a "political" tention must now be focused on the relationship between
question. these two forms of jurisprudence on the international
Counsel will govern themselves accordingly, and the court's instruc- plane.
Section 11. ON THE INTERNATIONAL LEVEL
2-3. Introduction. a. A former legal adviser to the States adopted by the International Law Commission in
Department of State was discussing with the late Mr. 1949 provides: "Every State has the duty to carry out in
Justice Frankfiuter the position of national courts in the good faith its obligations arising from treaties and other
international legal system and said: sources of international law, and it may not invoke p6vT
Mr. Justice, with all due deference, I would say that from the stand- sions in its constitution or its laws as an excuse for failure
point of international law, your court is but another municipal court and to perform this duty.'' There is an abundance of decisions
a decision of your court does not have any more effect internationally of international courts and tribunals recognizing this prin-
than a decision by a bureaucrat. 15
ciple. 17 The principle is also recognized by Soviet jurists:
6. The principle that a state cannot plead its own law as Proceeding from one and the same supreme authority, both the rules
an excuse for noncompliance with international law has
been long established and generally recognized. In 1887, 14. The United States Supreme Court, like the courts of other
for example, U.S. Secretary of State Bayard declared: federations, often refers to rules of international law in settling disputes
between the states of the Union. See, e.g., New Jersey v. Delaware, 291
[It is only necessary to say, that ifa Government wuld set up its own
municipal laws as the fmal test of its international rights and obligations, U.S. 361,54S.Ct. 40,78 L.Ed.847 (1934); Iowa v. Illinois, 147 U.S. 1,
then the rules of international law would be but the shadow of a name 13 S.Ct. 239, 27 L.Ed.55 (1893); Handly's Lessee v. Anthony, 18 U.S.
and would afford no protection either to States or to individuals It has (5 Wheat.) 374, 5 L.Ed.113 (1820).
1s. Leech, supra note 2, at 2.
been wnstantly maintained and also admitted by the Government of 16. U.S. For. Rel. 751, 753 (1887).
the United States that a government can not appeal to its municipal 17. Seecase Conceming Certain German Interests in Polish Upper
regulations as an answer to demands for the fulfhent of international Silesia, [I9261 P.C.I.J. 19, 22, 42; Chorzow Factory Case, [I9281
duties. Such regulations may either exceed or fall short of the require- P.C.I.J. 33-34; Free Zones Case, [I9321 P.C.I.J. 167; Treatment of
ments of international law, and in either case that law furnishes the test
Polish Nationals in Danzig, (19321 P.C.I.J. 24; and Case Conceming
of the nation's liability and not its own municipal rules. . . . 16
Rights of Nationals of the United States of America in Morocco, (19521
c. Article 13 of the Declaration of Rights and Duties of I.C.J. 176.