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Law of the Land, Law of the Sea: The Lost Link Between Customary International Law and The General Maritime Law

56 Pages Posted: 8 May 2011 Last revised: 6 Jun 2012

David J. Bederman

Emory University School of Law

Date Written: April 25, 2011

Abstract

This Article proposes a different way of thinking about the question of whether customary international law is the "law of the land." It looks back to the nineteenth century and to the once-parallel treatment of customary international law and general maritime law, finding that the two were linked closely by the end of the century. But, in the twentieth century, their treatment diverged dramatically as Supreme Court decisions "constitutionalized" the general maritime law and did not do the same for customary international law. General maritime law is supreme under Article VI of the Constitution and preempts contrary state law, but it does not automatically allow matters arising under it to be characterized as federal questions. This Article proposes that customary international law be re-linked to general maritime law and share both its status as "law of the land" and its implied preemption of state law.

Keywords: Customary International Law, General Maritime Law, U.S. foreign relations law

Suggested Citation

Bederman, David J., Law of the Land, Law of the Sea: The Lost Link Between Customary International Law and The General Maritime Law (April 25, 2011). Virginia Journal of International Law, Vol. 51, No. 2, 2011; Emory Public Law Research Paper No. 11-154. Available at SSRN: https://ssrn.com/abstract=1832717 or http://dx.doi.org/10.2139/ssrn.1832717

David J. Bederman (Contact Author)

Emory University School of Law ( email )

1301 Clifton Road
Atlanta, GA 30322
United States
404-727-6822 (Phone)
404-727-6820 (Fax)

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