Customary International Law: An Instrument Choice Perspective

Contemporary international lawmaking is characterized by a rapid growth of “soft law” instruments. Interdisciplinary studies have followed suit, purporting to frame the key question states face as a choice between soft and “hard” law. But this literature focuses on only one form of hard law—treaties—and cooperation through formal institutions. Customary international law (CIL) is barely mentioned. Other scholars dismiss CIL as increasingly irrelevant or even obsolete. Entirely missing from these debates is any consideration of whether and when states might prefer custom over treaties or soft law

Transnationalizing Public Law

I am tasked today with talking about transnationalization, in particular the question of whether public law in the United States is undergoing some process of transnationalization today. My response, based on the work of the U.S. Supreme Court is yes, although probably only in a thin sense. The starting point for discussing this issue is generally the Supreme Court\u27s citation to the laws of other countries in Printz v. United States, Roper v. Simmons, and Lawrence v. Texas. But these examples of comparative public law are controversial, substantively weak in the case of Printz, and relatively case (or issue) specific. It is somewhat unclear how significant the comparative aspects of the opinion were to the holding. Serious problems arise, moreover, in deciding which countries serve as useful benchmarks for comparison. My guess - and it is only that - is that we won\u27t see the U.S. Supreme Court moving much further in this direction. There is, however, another form of transnationalization that is part of the Court\u27s broader engagement with war and with international law over the half decade or so. In cases like Sosa v. Alvarez-Machain, Boumediene v. Bush, Sanchez-Llamas v. Oregon, and Medellin v. Texas, the Court has engaged with the domestic legal systems of other countries. But this engagement has been thin in three ways. First, the discussions of transnational law have been short and sometimes cursory. Second, by and large (with the exception of Boumediene), this engagement with foreign legal systems is driven by questions of international law, rather than domestic constitutional law. Finally, it is Congress, at one level or another, that forced the Court\u27s engagement with international law in the first place. So, while I do think these are important examples of transnationalism, they provide no clear path toward an expansive use of comparative materials in constitutional law generally

Symposium Epilog: Foreign Sovereign Immunity at Home and Abroad

If the international law of immunity once purported to make foreign states, their rulers, their officials, and their boats all identical in some sense--the sovereign equality of states--today immunity distinguishes and differentiates between the state\u27s commercial and private features, its tortious and non-tortious conduct committed in the forum state, and sometimes even the torture, war crimes, and acts of terrorism carried out in its name. Of course, sovereign equality has diminished in general as human rights have grown, but even as nation-states accept treaty-based obligations toward their own citizens, they refuse to make themselves explicitly accountable in the national courts of other countries and usually refuse to hold other states accountable in their own courts. Immunity often remains the stylized equalizer

Epilog: Foreign Sovereign Immunity at Home and Abroad

Every author writing on U.S. law for this symposium notes that the extent to which the Executive Branch can make binding immunity determinations is an important issue going forward. In addition to Legal Adviser Koh, two other authors address this issue directly. Professor Peter Rutledge provides a typology of the various roles that the Executive Branch might play in immunity (and other) cases, distinguishing in particular between views articulated by the Executive Branch independently of ongoing litigation, and those expressed with respect to particular pending cases. And Lewis Yelin of the Department of Justice has contributed a major, comprehensive article defending the power of the Executive Branch to make binding head of state (status-based) immunity determinations as a matter of constitutional law. Reading these articles together, one can see certain areas of convergence (particularly in the area of status-based immunity), but also areas of clear disagreement, particularly with respect to the control the Executive can and should exert over immunity determinations that arise in U.S. courts. In other words, the composition of our imagined immunity party will depend in part on the extent to which the views of the Executive Branch are followed, how those views are formulated, the scope of conduct-based immunity, and the existence of other potential areas of federal common law in the immunity context

The Due Process and Other Constitutional Rights of Foreign Nations

The rights of foreign states under the U.S. Constitution are becoming more important as the actions of foreign states and foreign state-owned enterprises expand in scope and the legislative protections to which they are entitled contract. Conventional wisdom and lower court cases hold that foreign states are outside our constitutional order and that they are protected neither by separation of powers nor by due process. As a matter of policy, however, it makes little sense to afford litigation-related constitutional protections to foreign corporations and individuals but to deny categorically such protections to foreign states. Careful analysis shows that the conventional wisdom and lower court cases are wrong for reasons that change our basic understanding of both Article III and due process. Foreign states are protected by Article III’s extension of judicial power to foreign-state diversity cases, designed to protect foreign states from unfair proceedings and to prevent international conflict. The Article III “judicial power” over “cases” imposes procedural limitations on federal courts that we today associate with due process. In particular, Article III presupposes both personal jurisdiction and notice for all defendants, not just foreign states. Under the Fifth Amendment, foreign states are “persons” due the same constitutional “process” to which other defendants are entitled. “Process” only reaches defendants within the sovereign power, or jurisdiction, of the issuing court, clarifying the obscure relationship between due process and personal jurisdiction for all defendants. Examining the Constitution from the perspective of foreign states thus reveals the document in a new light, illuminating its core features in ways that advance our historical and theoretical understanding of Article III and due process. The analysis also lays the groundwork for determining whether foreign states have additional constitutional rights

The Future of the Federal Common Law of Foreign Relations

The federal common law of foreign relations has been in decline for decades. The field was built in part on the claim that customary international law is federal common law and in part on the claim that federal judges should displace state law when they conclude that it poses difficulties for U.S. foreign relations. Today, however, customary international law is generally applied based upon the implied intentions of Congress, rather than its free-standing status as federal common law, and judicial evaluation of foreign policy problems has largely been replaced by reliance upon presidential or congressional action, or by standard constitutional analysis. Two traditional areas of the federal common law of foreign relations–immunity and the act of state doctrine–are alive and well doctrinally. Their status as federal common law is somewhat unsteady, however, because the Court has not provided a convincing account of why these two topics should be governed by federal common law, and because the traditional basis for the federal common law of foreign relations have eroded. In an important new book, The Law of Nations and the United States Constitution, Anthony J. Bellia, Jr. and Bradford R. Clark argue that the Constitution itself requires courts to apply customary international law in these two areas. Their argument fails to convince. A better alternative is to justify federal common law as necessary to give effect to the very closely-related statutory framework governing foreign sovereign immunity, and because judicial lawmaking is also cabined by the content of customary international law and by some actions of the executive branch. The federal common law of foreign relations does have a future, but it depends neither upon the status of customary international law as federal common law nor upon judicial decision-making about the deleterious effect of state law upon U.S. foreign policy

The Dangers of Deference: International Claim Settlement by the President

During the final months of the Clinton administration, the State Department entered into a trio of unprecedented international agreements with France (the French Agreement ), Germany (the German Agreement ), and Austria (the Austrian Agreement ). These sole executive agreements, designed to resolve litigation pending in the U.S. courts that arose out of World War II and the Holocaust, were made without Senate ratification(as required for a treaty) or congressional authorization (as in a congressional- executive agreement). Although executive branch settlement of claims without Senate or congressional approval has a long history, these executive agreements mark an important departure from prior practice by resolving pending U.S. litigation against private companies rather than claims against foreign sovereigns. As one senior State Department official noted, the German Agreement was a move into uncharted areas. The agreements do not, however, purport to terminate the litigation of their own force, but instead obligate the State Department to file Statements of Interest requesting that courts dismiss the cases based on the foreign policy interests of the United States. Courts have already done so, even over the objections of plaintiffs, without so much as a nod either to the important expansion of executive authority at work or to the Treaty and Supremacy Clauses of the U.S. Constitution. Although the Executive often seeks-and receives-deference from the courts, these Statements of Interest are particularly troubling for three reasons. First, they are made pursuant to executive agreements. Because the Supremacy Clause makes Treaties, but not other international agreements, the supreme Law of the Land, \u27 the courts\u27 deference to these executive agreements permits the Executive to achieve through the courts what it could not otherwise do without the agreement of two-thirds of the Senate, as required by a treaty... Although the Executive often seeks-and receives-deference from the courts, these Statements of Interest are particularly troubling for three reasons. First, they are made pursuant to executive agreements. Because the Supremacy Clause makes Treaties, but not other international agreements, the supreme Law of the Land, \u27 the courts\u27 deference to these executive agreements permits the Executive to achieve through the courts what it could not otherwise do without the agreement of two-thirds of the Senate, as required by a treaty... Finally, and related to the second concern, these executive agreements serve as an attractive future model for the State Department to resolve other private litigation with foreign affairs implications... Part III turns to the Supreme Court, and demonstrates that those cases involved claims against foreign sovereigns and do not provide a basis for executive authority over claims against private individuals

The Alien Tort Statute and Federal Common Law: A New Approach

Federal courts faced with Alien Tort Statute cases have applied customary international law to some issues and federal common law to others. This binary approach is analogous in certain respects to a Bivens action, with federal common law creating the cause of action and international law providing the conduct regulating norms. A better approach, advanced and defended in this symposium article, is to view federal common law as applying to virtually all aspects of Alien Tort Statute litigation, although for some issues federal common law is tightly linked to the content of customary international law. This article defends a federal common law approach on descriptive, doctrinal, and normative grounds. It also applies this approach to aiding and abetting and corporate liability, and briefly addresses prescriptive jurisdiction issues that arise in Alien Tort Statute litigation. It concludes that the Alien Tort Statute is best understood to extend liability to corporations, based on both congressional intent and the unsettled state of international law, that a knowledge rather than purpose standard should be applied to aiding and abetting claims, in part because international has frequently delegated the mens rea issue to domestic law or to development by courts. On both questions, however, some deference to the executive branch is appropriate. Finally, prescriptive jurisdiction limitations apply in ATS cases, and limit the types of claims that can go forward