An Emerging Uniformity for International Law
53 Pages Posted: 27 Jan 2007
The status of international law in the U.S. legal system has been hotly contested. Most international law scholars maintain that customary international law (CIL) is federal common law immediately applicable in federal courts. A minority of scholars has responded that CIL may be applied by federal courts only when authorized by the political branches. The Supreme Court's decision in Sosa v. Alvarez-Machain, 124 S. Ct. 2739 (2004), stoked the debate. In Sosa's wake, scholars have overwhelmingly concluded that the Supreme Court endorsed the majority view that CIL is federal common law. This Article asserts that Sosa has been both misperceived and underappreciated. Sosa not only supports the minority position that federal judicial authority to incorporate CIL hinges on congressional intent, but Sosa startlingly suggests that federal incorporation is governed by the same considerations that determine whether treaties are self-executing and immediately applicable in U.S. courts: namely, the intent of the political branches, specific definition, mutuality, practical consequences, foreign relations effects, and alternative means of enforcement. Sosa thus manifests the emergence of a uniform doctrine that governs the federal status of both treaties and CIL. This emerging doctrine, which serves to police the distribution of lawmaking and foreign affairs authority between the judiciary and the political branches, has significant implications. It suggests that reigning confusion over the domestic status of international law is being replaced with doctrinal clarity and coherence, reveals that the collective wisdom on the domestic status of international law is out of step with Supreme Court jurisprudence, results in more appropriate treatment of CIL relative to treaties, and suggests that efforts to incorporate international law as federal law should focus on the political branches, not the courts.
Keywords: foreign affairs, foreign relations, foreign relations law, customary international law, treaty, self-execution, self-executing, international law, common law, federal courts, CIL, domestic status, sosa, alvarez, alvarez-machain, revisionist, modern position, treaties, non-self-executing
JEL Classification: k33, k40
Suggested Citation: Suggested Citation