Dodge on the Charming Betsy and Paquete Habana

William S. Dodge, University of California, Davis School of Law, has posted The Charming Betsy and the Paquete Habana:

This chapter for the book Landmark Cases in Public International Law discusses two famous U.S. Supreme Court decisions — The Charming Betsy (1804) and The Paquete Habana (1900). Although written nearly one hundred years apart, each decision appears to stand for similar propositions — that international law has an important place in the law of the United States, but that U.S. domestic law should prevail in the event of conflict. What often goes unnoticed is that the Supreme Court decided these cases against the backdrop of very different understandings about international law and its relationship to U.S. domestic law.

In addition to discussing the background and significance of each case, this chapter describes three shifts in U.S. thinking about customary international law during the nineteenth century. First, the theoretical foundations of customary international law shifted away from natural law towards positivism. Second, the consent requirement for making customary international law shifted from the individual consent of each state to the consent of states generally. And third, the U.S. understanding of the relationship between international law and domestic law shifted away from monism towards dualism — away from an understanding that international law was part of U.S. law unless displaced, towards an understanding that international law was not part of U.S. law unless adopted. The Charming Betsy and The Paquete Habana are landmark cases not because they changed the course of international law in the United States but because they reveal changes in the landscape.