i n t e r nat i o na l l aw a n d m u n i c i pa l l aw
159
remedy to an individual for a violation of the Constitution.
153
However,
the question of the impact of a ruling of the International Court upon US
courts has been discussed in the light of decisions of the former
154
as to the
violation of the Vienna Convention on Consular Relations, 1963 by the
failure to permit access to consular officials by imprisoned foreigners.
155
There does exist, as in English law, a presumption that legislation does
not run counter to international law and, as it was stated by the Court in
Schroeder
v.
Bissell
,
156
unless it unmistakably appears that a congressional act was intended to be
in disregard of a principle of international comity, the presumption is that
it was intended to be in conformity with it.
157
The relationship between US law and customary law has been the sub-
ject of re-examination in the context of certain human rights situations.
In
Filartiga
v.
Pena-Irala
,
158
the US Court of Appeals for the Second Cir-
cuit dealt with an action brought by Paraguayans against a Paraguayan
for the torture and death of the son of the plaintiff. The claim was based
on the Alien Tort Claims Act of 1789
159
which provides that ‘[t]he district
courts shall have original jurisdiction of any civil action by an alien for
a tort only, committed in violation of the law of nations’. The Court of
Appeals held that torture constituted a violation of international custom-
ary law and was thus actionable. The Court accordingly held against the
153
Valdez
v.
Oklahoma
, US Court of Criminal Appeals of Oklahoma, Case No. PCD-2001-
1011, 2002.
154
See the
LaGrand
case (
Germany
v.
United States of America
), ICJ Reports, 2001, p. 466;
134 ILR, p. 1, and the
Avena and Other Mexican Nationals
case (
Mexico
v.
United States of
America
), ICJ Reports, 2004, p. 12; 134 ILR, p. 120.
155
See e.g.
Torres
v.
State of Oklahoma
43 ILM, 2004, p. 1227, and
Sanchez-Llamas
v.
Oregon
126 S. Ct. 2669 (2006), holding that a violation of article 36 of the Vienna Convention
on Consular Relations did not necessarily require reversal of a criminal conviction or
sentence. As to civil remedies, see
United States
v.
Rodriguez
162 Fed. Appx. 853, 857
(11th Cir. 2006),
Cornejo
v.
County of San Diego
504 F.3d 853, 872 (9th Cir. 2007) and
Gandara
v.
Bennett
, Court of Appeals for the Eleventh Circuit, judgment of 22 May
2008, holding that the Vienna Convention did not create judicially enforceable individual
rights. It was emphasised in
Cornejo
that ‘[f]or any treaty to be susceptible to judicial
enforcement it must both confer individual rights and be self-executing’, at p. 856.
156
5 F.2d 838 (1925).
157
Ibid.
, p. 842. See also
Macleod
v.
United States
229 US 416 (1913) and
Littlejohn & Co.
v.
United States
270 US 215 (1926); 3 AD, p. 483.
158
630 F.2d 876 (1980); 77 ILR, p. 169. See e.g. R. B. Lillich,
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