David Bourget (Western Ontario)
David Chalmers (ANU, NYU)
Rafael De Clercq
Jack Alan Reynolds
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Self-executing treaties like the Salvage Convention 1989 automatically become "the supreme law of the land" in the United States under the Supremacy Clause of the U.S. Constitution.They require no legislation to make them operative but they have the same force and effect as an Article I legislative enactment.The fact that no implementing legislation is needed often leads to the paradoxical result that a self-executing treaty is more easily forgotten, perhaps for the simple reason that such treaties do not always appear in the U.S. Code and so are not always easy to find. Perhaps that is the explanation of the curious fate of the Salvage Convention 1989, which does not appear anywhere in the U.S. Code. There can be no doubt, however, that when the provisions of a treaty prescribe a rule by which private rights may be determined, as the Salvage Convention 1989 does, a court must resort to the treaty for rules of decision, just as it would to a statute. A court may only refer to the law that would govern in the absence of the treaty - in the present context, general maritime law - when the treaty leaves an issue unresolved. In short, it is not acceptable for courts to continue to apply the general maritime law of salvage simply because it is broadly equivalent to the Salvage Convention 1989. Even when the general maritime law and the Salvage Convention 1989 would produce identical results, courts should apply the Salvage Convention 1989 and not the general maritime law. When the general maritime law and the Salvage Convention 1989 would (or even might) produce different results, which may occur quite often, there is no justification for applying the general maritime law.
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