Accommodating Concerns for International Law and Proper Governance

Abstract

The debate over the domestic status of customary international law (CIL) implicates two potentially competing concerns — one for the effectiveness of international law and the other for proper governance. On one hand, international law has the potential to help bring order to international relations and constrain improper state behavior. Allowing international law to be enforced in U.S. federal courts like domestic law would presumably help international law achieve these ends. On the other hand, a prominent role for international law in federal courts raises concerns for proper governance as it potentially disrupts traditional separation of powers and federalism protections. The concerns for the effectiveness of international law and for proper governance are often pitted against each other in the debate over CIL’s domestic legal status. However, these concerns are not mutually exclusive and the Court in Sosa adopted an approach to CIL’s domestic status that accommodates both, leaving room for CIL to play a prominent role in federal courts, while respecting concerns for proper governance.

Keywords: customary international law, sosa, alvarez-machain, federal common law, international law, federal courts