Structural Conflicts in the Interpretation of Customary International Law

20 Pages Posted: 29 Aug 2005  

Julian Ku

Hofstra University - School of Law

Abstract

The use of customary international law ("CIL") by courts in the United States, long the subject of debate among scholars, has finally come to the attention of the Supreme Court. In the last few years, the Court has interpreted and applied CIL to interpret provisions of the U.S. Constitution, to interpret statutes and treaties, and as a substantive rule of decision. While the Supreme Court's renewed interest in customary international law has drawn much praise, it has also sparked sharp criticism. The purpose of this symposium essay is not to recapitulate these disagreements, but instead, to identify a different problem with the interpretive and substantive use of CIL by federal and state courts. Whether a court uses CIL as a tool for statutory or constitutional interpretation or as a substantive rule of decision, the court's usage creates potentially serious structural conflicts in the U.S. constitutional system.

Keywords: customary international law, separation of powers, constitutional law

JEL Classification: K30, K33

Suggested Citation

Ku, Julian, Structural Conflicts in the Interpretation of Customary International Law. Santa Clara Law Review, Vol. 45, 2005; Hofstra Univ. Legal Studies Research Paper No. 05-24. Available at SSRN: https://ssrn.com/abstract=791984

Julian G. Ku (Contact Author)

Hofstra University - School of Law ( email )

121 Hofstra University
Hempstead, NY 11549
United States
516-463-4237 (Phone)
516-463-6264 (Fax)

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