Federal Statutes, Executive Orders and “Self-Executing Custom”

Abstract

A hotly debated issue raised in this publication’s October 1986 Agora and, repeatedly, during the drafting of the Restatement of Foreign Relations Law of the United States (Revised) has to do with the relationship between customary international law and federal law in the United States. Most of the debate addressed whether a newly emerged custom would supersede an earlier federal statute or self-executing treaty. The reporters of the Restatement took a strong stand at first, placing custom on the same plane as federal statutes and self-executing treaties: in case of conflict, the latest in time should prevail. Criticism rolled in, and the reporters eventually retreated a bit. The final version says only that since custom and international agreements have equal authority in international law, and both are law of the United States, “arguably later customary law should be given effect as law of the United States, even in the face of an earlier law or agreement, just as a later international agreement of the United States is given effect in the face of an earlier law or agreement.”’