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Published online by Cambridge University Press: 20 April 2017
The relation of municipal law to international law is properly a subject of inquiry by both practitioners and theoreticians. That all the questions which arise in this connection have not been settled will appear from continuing discussions concerning monism and dualism, the concept of domestic jurisdiction questions, and the doctrine of self-executing treaties. Cases of clear conflict between national law in the form of statutes and that which comprises international obligations tend to receive much publicity, and properly so. The extent to which there has been conformity of national legislation to customary international law and treaties seems to have received less attention. Techniques used to secure such conformity will appear to some extent from the manner in which statute-makers have by express provisions taken cognizance of the law of nations in written or unwritten form.
1 1 Stat. 73, 77; 36 Stat. 1087, 1093.
2 1 Stat. 73, 80; 36 Stat. 1087, 1156.
3 5 Stat. 539.
4 49 Stat. 2368, 2369. For another authorization for adjudication by the same court on the basis of “rules of law, municipal and international,” as well as treaties, see 23 Stat. 283.
5 The law of these commissions is discussed in Robert R. Wilson, “ Some Aspects of the Jurisprudence of National Claims Commissions,” this JOURNAL, Vol. 36 (1942), pp. 56-76.
6 4 Stat. 446, 447.
7 11 Stat. 408. See also 20 Stat. 171 (Caldera claim). For an authorization to settle in accordance with the principles of equity and of international law, see 31 Stat. 877 (Spanish Treaty Commission legislation).
8 22 Stat. 697 (General Armstrong claim).
9 13 Stat. 595, 596.
10 12 Stat. 838 (Repentigny claim). Concerning the claim of La Abra Mining Company, the Congress, after the Mexican Government had drawn attention to the possibility of fraud, requested the President to investigate charges of fraud brought by the Mexican Government and, if he should be of opinion that the “honor of the United States, the principles of public law or considerations of justice and equity, require,” to withhold payment of the award (20 Stat. 144, 145).
11 See notes 27, 30, infra.
12 1 Stat. 287, 288.
13 See note 85, infra.
14 36 Stat. 462, 463.
15 1 Stat. 477.
16 10 Stat. 619, 625.
17 11 Stat. 52, 62.
18 3 Stat. 510, 513, 514; 12 Stat. 314; 35 Stat. 1145.
19 31 Stat. 656.
20 1 Stat. 112, 118.
21 Cf. 11 Stat. 52, 65.
22 See, for example, 54 Stat. 758, in relation to the disposition of the estates of Americans dying abroad.
23 1 Stat. 565, 566; 572, 573. See also ibid., 561.
24 See note 61, infra.
25 39 Stat. 756, 799.
26 1 Stat. 381, 384. See also 3 Stat. 447, 449; 40 Stat. 217, 220.
27 40 Stat. 217, 225.
28 38 Stat. 1226.
29 40 Stat. 217, 220.
30 Ibid., 223, 225.
31 54 Stat. 4.
32 3238 Stat. 312, 313, 451, 1126; 39 Stat. 260, 1056.
33 42 Stat. 599, 609.
34 46 Stat. 85. Cf. 52 Stat. 1114, 1146.
35 33 Stat. 592.
36 45 Stat. 1165.
37 3 Stat. 709, 717; 4 Stat. 52, 53. Compare wording in 9 Stat. 631, 633, which refers to “equity,” and in 12 Stat. 71, which mentions “the law of nations” and “the principles of equity.”
38 40 Stat. 435, 436. There is also, along with mention of the law, reference to treaty obligations and “diplomatic representation.”
39 See, for examples, 42 Stat. 1154, 1161; 45 Stat. 483, 484; 46 Stat. 827
40 See 4 Stat. 619, 625; 16 Stat. 649; 23 Stat. 15. The wording varies to some extent. See, for example, an appropriation to cover “wrongful” seizure of a foreign vessel, in 12 Stat. 903.
41 54 Stat. 38, 961.
42 54 Stat. 396. An unusual provision was that in the resolution of April 17, 1866, protesting against foreign states’ pardoning convicted persons on condition that the persons go abroad (the fact apparently being that many such persons came to the United States). The reference in this instance was not to the law of nations, but to acts inconsistent with the comity of nations (14 Stat. 353).
43 See, for example, on the Treaty of Washington, 1871, 17 Stat. 24, 422, 598; 18 Stat. 66, 71; 129; 20 Stat. 206, 240.
44 See, for example, note 30, supra.
45 3 Stat. 253.
46 22 Stat. 488, 525-526.
47 38 Stat. 114, 197.
48 See, for example, 38 Stat. 114, 192; 42 Stat. 858, 947; 46 Stat. 590, 695; 48 Stat. 943, 944.
49 For a statutory statement as to the part of the House of Representatives in changing a rate of duty, see 33 Stat. 3.
50 10 Stat. 172, 173. In this case a proviso made clear that the statute would not be construed to affect the authority of the Government to regulate Indian affairs by treaty or otherwise.
51 30 Stat. 755. However, the language in this (1898) legislation on this point (“Provided, That treaties in force between the United States and foreign nations do not conflict”) was not included in later (1915) legislation on the subject (38 Stat. 1169).
52 13 Stat. 306, 315.
53 36 Stat. 326-327.
54 17 Stat. 283, 308.
55 49 Stat. 1081, 1082.
56 54 Stat. 516, 520. By sec. 8, no amendment made by the title was to apply in any case where its application would be contrary to any treaty obligation of the United States.
57 48 Stat. 1889.
58 2 Stat. 759.
59 See, for example, 30 Stat. 204-205.
60 43 Stat. 153; 47 Stat. 607-608. See Robert R. Wilson, “ ‘Treaty-Merchant’ Clauses in Commercial Treaties of the United States,” this JOURNAL, Vol. 44 (1950), pp. 145-149.
61 3 Stat. 681.
62 2 Stat. 89; 4 Stat. 164, 165.
63 See, for example, 1 Stat. 254; 9 Stat. 276; 54 Stat. 758.
64 49 Stat. 517, 518, 523.
65 In this case (49 Stat. 888), while the legislation was integrated with the treaty of 1930, the Secretary of Commerce was given discretion, as to vessels on the Great Lakes, to vary the loadline marks from those established in the treaty when in his opinion the changes made by him should not be above the actual line of safety.
66 48 Stat. 998, 1001-1002.
67 37 Stat. 302, 307.
68 37 Stat. 242; 54 Stat. 305.
69 9 Stat. 302, 303; 45 Stat. 440, 442.
70 See, for example, 4 Stat. 446, 666.
71 46 Stat. 1020, 1021.
72 52 Stat. 973, 1026. See also Sec. 602(b), ibid., 1008.
73 See, for example, 11 Stat. 319, 325.
74 18 Stat. 678; 20 Stat. 171.
75 9 Stat. 8.
76 13 Stat. 568.
77 37 Stat. 627.
78 18 Stat. 287; 36 Stat. 83.
79 41 Stat. 988, 1007.
80 13 Stat. 566.
81 38 Stat. 1164, 1184, 1185.
82 22 Stat. 643.
83 See, for example, 30 Stat. 750. Cf. 47 Stat. 761, 768, Sec. 10 (4).
84 31 Stat. 77, 79; 32 Stat. 691, 692.
85 38 Stat. 385. Compare 50 Stat. 750, 751.
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