美國의 Treaty Override에 관한 聯邦大法院 主要 判決의 分析

Abstract

The term "Treaty Override" means that domestic laws of a certain country overrule provisions of a treaty or of all treaties that are effective in that country. Treaty Override was enacted in the U.S. Internal Revenue Code several times. The provision of Treaty Override in the U.S. Internal Revenue Code adopts a position of the Supreme Court of the United States that, in the event a law provision conflicts with an existing treaty, a court should adopt the law provision as a prevailing rule for a trial. The first precedent by the Supreme Court of the United States ruling that a law provision supercedes an existing treaty is the Cherokee Tobacco decision. However, before that ruling, the Taylor v. Morton ruling provided a theoretical basis for Treaty Override. The focal point is that whether or not a law provision supercedes a existing treaty is beyond the jurisdiction of the judicial branch. This basis was also acknowledged in the Cherokee Tobacco ruling and other rulings in the 1880s. Rulings in the 1880s, like the Taylor v. Morton ruling, did not actively make a decision regarding the intention of the U.S. Congress. That appears to be because such rulings followed suit with the Taylor v. Morton ruling rather than with the Cherokee Tobacco ruling. However, the Cherokee Tobacco ruling still has significant meaning since it made the Congress' intention to overrule existing treaties by an enactment of a law provision be a requirement for Treaty Override.