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Customary International Law, Change, and the Constitution

45 Pages Posted: 30 Nov 2017  

William S. Dodge

University of California, Davis - School of Law

Date Written: November 28, 2017

Abstract

Customary international law has changed in many ways since ratification of the U.S. Constitution. This Article considers the implications of those changes for customary international law’s role under the Constitution. In particular, it challenges the claims made in a new book, The Law of Nations and the United States Constitution, that U.S. courts must respect the “traditional rights” of foreign nations under the law of nations and may not apply the modern customary international law of human rights. The Article argues that the book is not consistent in its approach to changes in customary international law, embracing some while rejecting others. The Article also shows that a full account of how customary international law has changed undercuts each of the book’s two constitutional arguments.

Keywords: customary international law, law of nations, human rights, vattel

Suggested Citation

Dodge, William S., Customary International Law, Change, and the Constitution (November 28, 2017). 106 Georgetown Law Journal, Forthcoming. Available at SSRN: https://ssrn.com/abstract=3078875

William Dodge (Contact Author)

University of California, Davis - School of Law ( email )

Martin Luther King, Jr. Hall
Davis, CA CA 95616-5201
United States

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