The status of treaties.(Letters)(Letter to the editor)

SIR: In the article "International Law and Australian Sovereignty" (July-August 2005) Justice Callinan quoted the following remarks of Mason CJ and Deane J in Minister of State for Immigration and Ethnic Affairs v Teoh (1995):

  But the fact that the Convention  

      
   has not been incorporated into    Australian law does not mean  

      
  that it has no significance for    Australian law ... It is  accepted  

      
   that a statute is to be interpreted    and applied so far as its  

      
   language permits, so that it is in    conformity and not in  conflict  

      
   with the established rules of    international law. 

Justice Callinan suggested that those remarks would never be endorsed by the United States Supreme Court. Regrettably this assertion conflicts with the accepted understanding of the status of international treaties in the domestic law of the United States if his Honour meant to refer to the presumption of interpretation mentioned in the quoted remarks.

In 1804 Chief Justice Marshall, when delivering the opinion of the Supreme Court in Murray v Schooner Charming Betsy, wrote that "an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains". It is for this reason that the Supreme Court has consistently maintained that "a treaty like a statute will not be deemed to have been abrogated or modified by a later statute unless such purpose on the part of Congress has been clearly expressed": e.g. Cook v United States (1933); ...