INTRODUCTION I. THE MODERN POSITION" EXPLICATION AND PRELIMINARY DEFENSE A. The Basic Case for the Modern Position 1. Constitutional Structure and Original Intent 2. Pre-Erie Doctrine a. State Authority to Depart from Customary International Law b. Supreme Court Review of Customary International Law c. The General Law as an Intermediate Status 3. Post-Erie Doctrine B. The Limits of the Modern Position 1. Sabbatino and the Inapplicability of Some Customary International Law Norms to Some Acts of Foreign States 2. The Paquete Habana and the Applicability of Customary International Law to Federal Officials C. Sosa and the Modern Position II. THE INTERMEDIATE THEORIES A. Ramsey's Position 1. Nonpreemptive Federal Law as State Law 2. Ramsey's Textual and Historical Support B. Young's Position 1. Young's Criticisms of the Modern Position 2. Young's Intermediate Status for Customary International Law a. State Choice-of-Law Rules i. The Diversity and Indeterminacy of Existing Choice-of-Law Approaches ii. The Inappositeness of Choice-of-Law Rules iii. The Likelihood of Special Choice-of-Law Rules iv. The Role of the Federal Courts v. Summary b. Federal Choice-of-Law Rules C. Aleinikoff's Position D. The Bellia-Clark Position E. The Bradley-Goldsmith-Moore Position III. THE MODERN POSITION, REDUX A. The New Ways of Making Customary International Law B. The New Topics Addressed by Customary International Law IV. STATE INCORPORATION OF CUSTOMARY INTERNATIONAL LAW CONCLUSION INTRODUCTION
In a recent referendum, the citizens of Oklahoma overwhelmingly approved a State constitutional amendment providing that the courts of the State "shall not consider international law or Sharia law" in rendering their decisions. (1) The amendment's exclusion of Sharia law has garnered most of the media attention, (2) but more consequential by far is the measure's directive to the State courts to disregard international law. Similar measures have been proposed in other States, some of them merely barring consideration of Sharia law or foreign law, (3) but others barring consideration of international law as well. (4) These measures are clearly unconstitutional insofar as they would prohibit the State courts from enforcing one of the two main forms of international law--treaties--as the U.S. Constitution by its terms requires State courts to give effect to the nation's treaties, "any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." (5) But the federal Constitution does not expressly address the status of the other principal form of international law--customary international law, or the unwritten law that governs the relations among states and "results from a general and consistent practice of states followed by them from a sense of legal obligation." (6) These proposed State laws thus starkly raise the question whether the States may prohibit their courts from giving effect to the United States' obligations under customary international law. (7)
The answer provided by the Restatement (Third) of Foreign Relations Law is a clear "no." Reflecting the settled view regarding the status of customary international law in the U.S. legal system at the time that it was approved in 1987, the Restatement asserts that such law has the status of federal law. (8) As such, it preempts inconsistent State law; State courts must follow federal court interpretations of it; and State court interpretations of it are reviewable in the federal courts. A decade later, however, Professors Curtis Bradley and Jack Goldsmith published a critique of the Restatement view, which they denominated the "modern position." (9) While acknowledging that the modern position was "well-entrenched," that almost every court that had considered the question in the previous twenty years had endorsed it, and that the view was widely regarded as "settled," (10) Bradley and Goldsmith argued that the modern position should now be rejected because it is based on a misinterpretation of pre-Erie (11) decisions and is inconsistent with "well-accepted notions of American representative democracy, federal common law, separation of powers, and federalism," (12) and because modern customary international law is problematic in a number of respects. (13) For most of the nation's history, they argued, customary international law was regarded as "general common law," not federal law. (14) After Erie rejected the concept of general common law, customary international law could have the status of domestic law only if it was given such status by the federal political branches or by the States. (15) Thus, according to the Bradley-Goldsmith critique, the Oklahoma amendment would not only validly bar the Oklahoma courts from considering customary international law that has not been incorporated as federal law, it would bar the federal courts from doing so as well.
In response to the revisionist challenge to the modern position, numerous scholars have defended the Restatement view. (16) Other scholars have advanced what they have characterized as intermediate positions, arguing that customary international law is properly understood to have a status in between federal and State law. Professor Michael Ramsey has argued that customary international law should be regarded as a form of nonpreemptive federal law. (17) Professor Ernest Young, expanding upon an argument by Professor Arthur Weisburd, (18) has argued that customary international law should continue to be understood as general law. (19) He has proposed the use of choice-of-law rules to determine the applicability of customary international law in our courts. Dean Alexander Aleinikoff has argued that customary international law should be regarded as "nonpreemptive, nonfederal law" applicable in the federal courts but not the State courts. (20)
More recently, Professors A.J. Bellia and Bradford Clark have advanced a different sort of intermediate proposal. (21) Rather than propose an intermediate status for customary international law, Bellia and Clark argue that some categories of customary international law preempt State law and others do not. (22) Their conclusion that State law is sometimes preempted by customary international law is particularly noteworthy because revisionists rely heavily on a textual and structural argument closely identified with Professor Clark (23)--the view that the Supremacy Clause's list of the categories of preemptive federal law is exhaustive. (24) Bellia and Clark argue that the Constitution itself--specifically, its allocation of the war and foreign relations powers to the federal government--implicitly preempts State laws that conflict with a subset of customary international law. (25) They find support in nineteenth-century Supreme Court decisions for the claim that State law is preempted if it violates the "perfect fights" of foreign sovereigns under international law. Violation of perfect rights was regarded under international law as a justification for going to war. (26) State violation of such rights thus interfered with the federal government's exclusive power to declare war and to conduct the nation's foreign relations. The preemptive force of (some) customary international law, on this analysis, is an inference from the constitutional structure--specifically, the Constitution's allocation of power over war and foreign affairs to the federal government.
Finally, Professors Bradley and Goldsmith themselves have advanced what might be regarded as an intermediate position. In their original critique, they insisted that customary international law lacked the status of federal law unless incorporated as such by the federal political branches. (27) The implication was that an act of federal lawmaking--a federal statute or a treaty--was required. Portions of their critique suggested that this was indeed what they contemplated. (28) Elsewhere, however, they stated that, "to some extent, the President [has] the authority to incorporate [customary international] law into domestic law," (29) and they noted but did not endorse the possibility that the relevant authorization may be inferred from a jurisdictional statute. (30) More recently, writing after the Supreme Court in Sosa v. Alvarez-Machain (31) endorsed the judicial creation of federal common law rights of action for damages for violations of some norms of customary international law, (32) they embraced and elaborated on these earlier suggestions. Their post-Sosa article, written with Professor David Moore, endorses the propriety of reading jurisdictional statutes under certain circumstances as authorization for the incorporation of customary international law as federal law, and expands upon their earlier acceptance of a presidential power to incorporate customary international law as federal law. (33)
This Article offers a critique of the intermediate positions and, in the process, explicates and defends the modern position. Critics of the modern position often describe it as the claim that customary international law has the force of federal law always and for all purposes. But this uncompromising conception of the modern position is a phantom. Adherents of the modern position have always accepted that not all of customary international law binds foreign states or the federal Executive as a matter of U.S. domestic law. The heart of the modern position is that customary international law binds State actors and thus preempts State law applicable to State officials and private parties. The basic case for the modern position relies on an inference from the constitutional structure very similar to the one advanced by Bellia and Clark: Violations of customary international law risk retaliation against the nation as a whole. Permitting States to violate it allows States to externalize the costs of such violations, thus likely producing excessive violations.
Part I explicates and offers a preliminary defense of the modern...