il07

INTERNATIONAL LAW
W.B. Fisch Fall 2008
Assignment #7

Ch. 4) INTERNATIONAL LAW AND MUNICIPAL LAW

A) Treaties in Municipal Law

FOSTER & ELAM V. NIELSON, p. 180 (U.S. 1829). Claim to possession of land in Louisiana based on Spanish land grant.

1. What was the defense of the present possessors of the land against the grant?

2. What role did the treaty of 1819 between the U.S. and Spain play in the suit?

a. Did it obligate the U.S. to confirm all Spanish land grants, including the one on which the plaintiffs rely?

b. If so, why couldn’t the plaintiffs rely on the treaty to confirm their claim?

c. How do we know whether a treaty that has been properly negotiated and ratified will be treated as directly applicable law in a U.S. domestic court?

i. What criteria must the treaty meet?

ii. Does the court presume that the treaty doesn’t meet them?

d. If the treaty had been considered directly applicable, and federal law otherwise treated the land grant as void, which law controls? Why?

i. The treaty, because it is “the law of the land”?

ii. Federal law, because it is “the law of the land”?

iii. cf WHITNEY, p. 202

3. Does the U.S. refusal to give the plaintiffs their land violate the treaty? So what?

4. cf. U.S. v. Percheman, n. 5 p. 183: if the treaty is executed in two languages with each version equally binding, and the two versions differ in their meaning in relation to self-executing character, which one controls?

ASAKURA V. CITY OF SEATTLE, p. 183 (U.S. 1924). Japanese citizen is denied a pawnbroker’s license by the city, solely because he isn’t a U.S. citizen. He invokes the 1911 US-Japan Friendship, Commerce and Navigation Treaty to override the city’s ordinance.

1. How does this treaty differ, if at all, from the US-Spain treaty in Foster & Elam, in terms of its direct applicability in a U.S. court?

2. Does it matter that it is Seattle municipal law, rather than federal statutory law, that conflicts with the treaty?

SEI FUJII V. CALIFORNIA, p. 186 (U.S. 1952). State alien land law denies Japanese national the right to own land in the state. Challenge based on racial discrimination provisions of UN Charter.

1. Does the Court say that the Charter doesn’t require states to eliminate discrimination?

2. What is it about the language of the Charter provisions that prevents them from being treated as directly applicable law? How does it differ from that in Asakura?

MISSOURI V. HOLLAND, p. 191 (US 1920). Can the U.S. override state law by treaty, which it couldn’t override by ordinary legislation absent the treaty? If so, why?

1. How do we know that this case involves a subject matter on which Congress could not legislate in the absence of a treaty?

2. What are the limits on the treaty power, if any?

a. 10^th Amendment, by implication?

b. Must a treaty deal with a subject which represents “a national interest” which “can only be protected by national action in concert with that of another power?”, as Holmes finds to be the case here?

c. Is it sufficient that the subject matter be of “international interest”?

d. If not the 10^th Amendment, what about the Bill of Rights (see Reid v. Covert (1957), n. 1 p. 193)?

CROSBY V. NATIONAL FOREIGN TRADE COUNCIL, p. 194 (US 2000). A state adopts a law forbidding its state agencies to purchase goods and services from persons/companies doing business with a specific foreign country (here Burma). On what grounds might this law be a violation of the federal constitution?

1. Does the state law improperly intrude on or compromise the foreign affairs powers of the federal government (“constitutional pre-emption”)? Cf. Zschernig, n. 2 p. 201-2

2. Does the state law regulate “commerce with foreign nations”, in violation of the “dormant Commerce Clause” (also “constitutional pre-emption”)?

3. Does the state law conflict with a valid federal statute (“legislative pre-emption”)?

WHITNEY V. ROBERTSON, p. 202 (US 1888). As between a treaty and a federal statute, both of which purport to apply to a specific situation and which are inconsistent with each other, which will control?