After Sosa: The Future of Customary International Law in the United States
29 Pages Posted: 13 Nov 2006 Last revised: 20 Feb 2013
Date Written: 2009
This paper explores the role of customary international law in the U.S. legal system after the Supreme Court's decision in Sosa v. Alvarez-Machain. After discussing Sosa's impact both on alien tort litigation and on the debate over whether customary international law is federal common law, I apply Sosa's methodology to some of the open questions concerning the place of customary international law in our constitutional scheme. With respect to Article II's 'Take Care' Clause, I argue that the original understanding was that customary international law bound the President and that modern arguments for abandoning that understanding are not convincing. With respect to Article III, I argue that customary international law was originally understood to be part of the 'Laws of the United States' for purposes of Article III arising - under jurisdiction, and that there are good reasons to adhere to that position today. And with respect to the Supremacy Clause of Article VI, I argue that customary international law should today bind the states, subject to congressional override, even though this was probably not the original understanding.
Keywords: Sosa, Alien Tort Statute, customary international law
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