American Judges and International Law
78 Pages Posted: 3 Nov 2002
Date Written: October 2002
This article addresses an issue with which federal courts have been forced to deal with increasing frequency: how ought a judge go about determining the content of customary international law? The article seeks to demonstrate, using the example of the treatment of the concept of jus cogens by the courts of appeals, that federal courts have come to rely on doubtful sources in addressing questions of international law. More specifically, it sets out to show that courts frequently do not rely on the actual practice of governments to determine the content of customary international law, as would be indicated both by the nature of customary international law and by Supreme Court authority. Rather, they have come to place weight on the works of writers whose conclusions themselves are drawn from dubious bases, on the Restatement, on the views of other domestic courts and on the decisions of international courts. The article explains the problems with relying on such sources, and briefly describes an alternative method of proceeding for cases involving an area of customary international law very frequently before American courts, the law of human rights.
Keywords: International law, customary law, jus cogens, federal jurisdiction
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