Courts, the Constitution, and Customary International Law: The Intellectual Origins of the Restatement (Third) of the Foreign Relations Law of the United States

21 Pages Posted: 10 May 2003

See all articles by Paul B. Stephan

Paul B. Stephan

University of Virginia School of Law

Multiple version iconThere are 2 versions of this paper

Date Written: Spring 2003

Abstract

I contend that the so-called "modern" position on the status of international law as federal law - the claim that customary international law constitutes federal common law and informs the scope of constitutional protections of individual rights - changed substantially between the time of its first authoritative articulation and its enshrinement in the first tentative draft of the Third Restatement on the Foreign Relations Law of the United States. I relate these changes to broader jurisprudential, political and international developments in the period between those events. I seek to demonstrate that a strong statement of the modern position reflected the assumptions and anxieties of a precise historical moment. As that moment passed some time ago, I suggest, we can question whether the position has much to say to the present moment.

Suggested Citation

Stephan, Paul B., Courts, the Constitution, and Customary International Law: The Intellectual Origins of the Restatement (Third) of the Foreign Relations Law of the United States (Spring 2003). UVA School of Law, Public Law Working Paper No. 03-4. Available at SSRN: https://ssrn.com/abstract=405582 or http://dx.doi.org/10.2139/ssrn.405582

Paul B. Stephan (Contact Author)

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