Jordan J. Paust (University of Houston Law Center) has posted Actual Commitment to Compliance with International Law and Subsequent Supreme Court Opinions: A Reply to Professor Moore (40 Houston Journal of International Law (forthcoming 2016)) on SSRN. Here is the abstract:
This reply demonstrates that claims that the Continental Congress violated a rule of customary international law and three treaties are unproven, that overwhelming views of the Founders and Framers and early judiciary were clear that Congress and the President are bound by customary and treaty-based international law, and that there was no approval by the Founders or Framers of an alleged authority of any part of the national government to violate customary or treaty-based international law. Indeed, no one declared or embraced an alleged national discretion to violate international law. Today, at least forty-three opinions of Supreme Court Justices have affirmed (1) that Congress is bound by customary international law, and (2) that the President is bound by customary and treaty-based international law. Fifteen other Supreme Court Justice opinions are supplementary, and eighteen opinions of Supreme Court Justices affirm various exceptions to the last-in-time rule that guarantee the primacy of certain types of treaty-based rights and duties in the face of conflicting newer congressional legislation.
This is a reply to this paper by David Moore (BYU): Constitutional Discretion to Violate International Law (noted here, and previously presented at the San Diego Originalism Works-in-Progress conference). The debate over the views of the Continental Congress is interesting. My view is that the reply's claims about the Supreme Court are overblown. See International Law in the Supreme Court: Continuity and Change.
Posted at 6:56 AM