Customary international law is part of federal common law. Federal common law is binding on every executive branch official, including the President. Congress can by statute create a different rule, however, because federal common law is interstitial; it fills in gaps between statutes and gives way when an inconsistent law is enacted. Consequently, with congressional authorization, the Chief Executive can disregard any norm of customary international law. But in the face of congressional silence, he is required to respect a clearly defined and widely accepted norm of customary international law. I consider this position, elaborated in a recent article in the North-western Univernty Law Review, to be most consistent with traditional separation-of-powers principles and also the soundest functional approach.

In Garcia-Mir, the district court found that prolonged detention of the undocumented aliens was, in the circumstances, “arbitrary,” and therefore a violation of international law. But it also held that even though it was in violation of international law, the courts would not order an end to the detention because it had been authorized by the Attorney General. The court of appeals affirmed.

Dr. Marjorie Millace Whiteman died at the age of 87, at her home in Liberty Center, Ohio, on July 6, 1986. A graduate of Ohio Wesleyan University and the recipient of LL.B. (1927) and J.S.D. (1928) degrees from Yale Law School (where she served as an editor of the Yale Law Journal), she was also a Carnegie fellow in international law. Later, Miss Whiteman served as a research associate with the Research Commission on Latin America at Columbia University, and then, in 1929, began her distinguished career with the Department of State, winning recognition throughout the world as an authority on international law.

One of the Society’s promising young teachers, Professor Martin A. Feinrider, died on June 16, 1986, the innocent victim of an automobile collision. Just a month before his death, he had been awarded tenure and a full professorship at Nova University.

In the January 1961 issue of this Journal, there appeared, over my name, a Comment entitled When Extradition Fails, Is Abduction the Solution? The Comment dealt with the frustration of efforts to effect the extradition to Yugoslavia of Andrija Artukovic, a leader of the Croation “state” established in Yugoslavia under Nazi sponsorship during World War II. Artukovic had been charged with the kilting of hundreds of thousands of victims guilty only of ethnic diversity. He had fled to the United States in 1948. The Comment remarked that, in view of the atrocities attributed to Artukovic, “[i]t would hardly be incredible if a group of Serbs, inspired by hatred, revenge and patriotism, should try to emulate the ‘volunteers’ who successfully contrived to move Adolph Eichmann from his refuge in Argentina to a prison in Israel.” The Comment concluded that “it must be our position that the only acceptable way to deal with fugitive war criminals is through orderly processes of international law and extradition.”