Maybe this will help complete the answer to the question asked by Joseph.
As others have noted, an inconsistency between a treaty and a federal statute is of no legal consequence in U.S. domestic law unless the treaty is self-executing, i.e., recognized as being binding in domestic law without the need for implementing legislation. For guidance on this, see section 111 of the Restatement of Foreign Relations Law.
Under Article VI of the U.S. Constitution, treaties (together with the
Constitution and legislation enacted pursuant to it) are the "supreme law of
the land." In U.S. domestic law (as opposed to the issue of what is binding
as between the U.S. and other nations under international law), a
self-executing treaty and a federal statute are of equal value. In the
event of a conflict between a self-executing treaty and a federal statute,
whichever is later in time prevails. Whitney v. Robertson, 124 U.S. 190
(1888). See also Breard v. Greene, 523 U.S. 371 (1998)(1996 Antiterrorism
and Effective Death Penalty Act would override inconsistent provision of
earlier Vienna Convention on Consular Relations); Reid v. Covert, 354 U.S. 1
(1957("an Act of Congress . . . is on a full parity with a treaty, and that
when a statute which is subsequent in time is inconsistent with a treaty,
the statute to the extent of conflict renders the treaty null"). Note that
there is a maxim of statutory construction that courts will not interpret a
statute to be inconsistent with international law if any other construction
is possible. The Charming Betsy, 6 U.S. (2 Cranch) 64 (1804).
On the interaction of treaties with the U.S. Constitution, it was suggested in Missouri v. Holland, 252 U.S. 416 (1920), that congress might be able to enact legislation to implement a treaty that, without the treaty, would be unconstitutional. What this means today is not entirely clear, to me at least. However, what is clear is that the U.S. Supreme Court, in Reid v. Covert (cited above) rejected the idea that a treaty could override individual rights guaranteed in the Constitution's Bill of Rights.
Shawn N. Sullivan
Intellectual Property Counsel
CIMMYT
Apdo. Postal 6-641
006600 D.F., Mexico
Tel. +52-55-5804-7554
Fax +52-55-5804-7585
-----Original Message-----
From: Robert F. Bodi [mailto:lawlists[_at_]bodi.com]
Sent: Jueves, 22 de Mayo de 2003 06:15 p.m.
To: CNI-COPYRIGHT -- Copyright & Intellectual Property
Subject: [CNI-(C)] Re: Treaties not subject to judicial review?
My view below:
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