1 Fernandez-Roque v. Smith, 622 F.Supp. 887 (N.D. Ga. 1985). The court cited the Restatement of Foreign Relations Law of the United States (Revised) §702 (Tent. Draft No. 3, 1982). 622 F.Supp. at 903 n.30. That prolonged arbitrary detention as state policy is a violation of customary law is reaffirmed in the Tentative Final Draft of the Restatement, 1985 (hereinafter cited as Restatement (Revised)).

2 Garcia-Mir v. Meese, 788 F.2d 1446 (11th Cir. 1986).

3 175 U.S. 677, 700(1900).

4 The Court also said: “This rule of international law is one which prize courts, administering the law of nations, are bound to take judicial notice of, and to give effect to, in the absence of any treaty or other public act of their own government in relation to the matter . . . .”Id. at 708. The term “public act” is not defined. And while it is clear that a treaty would ordinarily supersede customary law as the applicable international law between the parties (see Restatement (Revised) §102 Comment j and Reporters’ Note 4), the Court does not explain why a “public act” of the United States, and what kind of public act, would relieve its court of its obligation to give effect to customary law as the law of the land.

5 It is not clear to me that the Court was in fact pronouncing on hierarchy or conflict between international law and other United States law, but the dictum has been so construed and I address it accordingly.

6 International law gives “specific performance” or restitution as a remedy only in limited cases. And political enforcement of international law is available in principle only through the UN Security Council (subject to veto), and only for violations that threaten international peace and security.

7 130 U.S. 581, 602–03 (1889). The Court was addressing the prerogative of a state to violate its treaty obligations, but there can be no doubt that the prerogative extends as well to violating an obligation under customary law. Indeed, by enacting a statute that compelled the United States to violate a treaty obligation, Congress was causing the United States to violate the principle of customary international law, pacta sunt servanda.

8 Reid v. Covert, 354 U.S. 1 (1957). See Henkin, L., Foreign Affairs and the Constitution 137–40 (1972)Google Scholar.

9 Whitney v. Robertson, 124 U.S. 190, 194 (1888); The Chinese Exclusion Case, 130 U.S. 581 (1889).

10 The Paquete Habana is only the most famous statement. Much earlier, Marshall said: “Till such an act [of Congress] be passed, the Court is bound by the law of nations which is part of the law of the land.” The Nereide, 13 U.S. (9 Cranch) 388, 423 (1815).

11 See Restatement (Revised), supra note 1, §131 Comment a. This might be supported by reference to the Supremacy Clause, if international law is accepted as among the “laws of the United States” which must be “pursuant to” the Constitution. See note 14 infra.

12 See Whitney v. Robertson, 124 U.S. 190 (1888).

13 See Henkin, , International Law as Law in the United States, 82 Mich. L. Rev. 1555, 1561 (1984)Google Scholar.

14 See Restatement (Revised), supra note 1, §131 Comments d and e and Reporters’ Note 2.

15 See id. §339.

16 Ex parte Peru, 318 U.S. 578 (1943); Republic of Mexico v. Hoffman, 324 U.S. 30 (1945). See L. Henkin, supra note 8, at 56.

17 United States v. Belmont, 301 U.S. 324 (1973); United States v. Pink, 315 U.S. 203 (1942); Dames & Moore v. Regan, 453 U.S. 654 (1981).

18 That, I believe, is what the Restatement (Revised) meant in §131 Comment a; and see §339. See also L. Henkin, supra note 8, at 221–22.

19 The court’s statement would have no basis even if international law were seen as a kind of federal common law; see note 13 supra and accompanying text. The President is bound to take care that the federal common law is faithfully executed. He can supersede a principle of the common law only by an exercise of his limited “legislative” authority, when he makes law by treaty, executive agreement or executive order within his constitutional powers or by authority delegated by Congress.

20 There was no suggestion that the President had authority under the Constitution to detain the aliens in question. If the President had constitutional authority to order detention in the circumstances, an executive order of general applicability would presumably have the effect of law, and might claim to supersede other law, including international law. In United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 543 (1950), the Supreme Court said that “the power of exclusion of aliens is also inherent in the executive department of the sovereign.” That case has long been discredited; in any event, the executive power to exclude is not an executive power to detain arbitrarily. In Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206 (1953), the Court upheld detention of excludable aliens under authority granted by Congress, not on the President’s own authority.

21 In the circumstances, that might not have required release, but it required the elaboration of standards and procedures to ensure that, as to each person, continued detention is not arbitrary in the circumstances.

* Of the Board of Editors.