Domestic vs. international law
Debate is heating up over how far domestic courts can push trade and maritime rules when those rulings clash with international obligations — commentators flagged recent cases as tests of that tension. Peter Germanos argued a 2022 maritime-delimitation decision shows states can give tacit recognition through conduct, a line of reasoning people are citing when assessing domestic rulings against treaty duties. (x.com) (x.com)
A fight over who gets the last word — national judges or international rules — is spilling from courtrooms into trade lanes and disputed waters. (legal.un.org) International law starts from a blunt rule: Article 27 of the Vienna Convention on the Law of Treaties says a state cannot cite its own internal law to justify failing to perform a treaty. The convention was adopted on May 23, 1969, and entered into force on January 27, 1980. (legal.un.org) Domestic courts, though, decide what national constitutions, statutes and regulations mean at home. In trade and maritime disputes, that can put a national ruling on a collision course with promises the same state has already made abroad. (cit.uscourts.gov; legal.un.org) That tension is no longer abstract. In Iraq, the Federal Supreme Court ruled in September 2023 that the Iraqi law ratifying the 2012 Khor Abdullah navigation agreement with Kuwait was unconstitutional because parliament had not approved it by the required two-thirds majority. (e-ir.info) The Khor Abdullah channel is Iraq’s main maritime gateway to the Gulf, and the 2012 agreement set rules for navigation in the narrow waterway shared with Kuwait. Iraqi President Abdul Latif Rashid and Prime Minister Mohammed Shia al-Sudani later asked the court to revisit the ruling, arguing it cut against Iraq’s external commitments. (e-ir.info; shafaq.com) The Iraqi government’s argument tracked the treaty rule almost word for word. Shafaq News reported that al-Sudani cited the Vienna Convention and warned that domestic law cannot be used to excuse non-performance of an international agreement. (shafaq.com; legal.un.org) A different version of the same problem is playing out in U.S. maritime law. Recent U.S. cases over the Jones Act — the domestic rules reserving coastwise shipping to qualified U.S.-flag vessels — have focused on how far courts can review Customs and Border Protection interpretations that shape offshore and energy projects. (winston.com) On February 7, 2025, the U.S. Court of Appeals for the Fifth Circuit decided Great Lakes Dredge & Dock Company, L.L.C. v. Magnus, and on September 24, 2025, the U.S. District Court for the District of Columbia issued an opinion in Radtke v. U.S. Bureau of Customs & Border Protection. Winston & Strawn said those opinions added guidance on when challengers have standing and how much legal force Customs ruling letters carry. (winston.com) The international side has its own moving pieces. A 2022 survey of law-of-the-sea disputes said the year’s notable developments included International Court of Justice and International Tribunal for the Law of the Sea cases on exclusive economic zones, contiguous zones and maritime delimitation. (brill.com) That is why lawyers keep returning to conduct as well as text. In boundary and recognition disputes, the question is often whether a state’s actions — enforcing rules, filing maps, negotiating lines, or operating under an agreement — amount to acceptance on the international plane even when domestic politics says otherwise. (icj-cij.org; brill.com) The practical stakes are not academic. A domestic court can void a ratification law, narrow a regulator’s power, or block enforcement at home, but the treaty system still asks whether the state remains bound abroad — and whether its conduct has already said yes. (legal.un.org; e-ir.info)
