Finding Customary International Law
| Author | Ryan M. Scoville |
| Position | Assistant Professor of Law, Marquette University Law School; J.D., Stanford Law School |
| Pages | 1893-1948 |
1893
Finding Customary International Law
Ryan M. Scoville*
ABSTRACT: Established doctrine holds that customary international law
(“CIL”) arises from general and consistent state practice that is backed by a
sense of legal obligation. Contemporary litigation requires federal courts to
apply this doctrine to identify the contours of CIL in a diverse collection of
cases ranging from civil actions under the Alien Tort Statute to criminal
prosecutions under the Maritime Drug Law Enforcement Act. This Article
provides an in-depth look at how federal judges carry out this task.
Conducting a citation analysis of opinions published since the U.S. Supreme
Court’s 2004 decision in Sosa v. Alvarez-Machain, this Article analyzes the
form, quality, and geographical origins of the authorities that tend to serve as
evidence of custom; explores the implications of recent citation patterns; and
offers ideas to help courts grapple more effectively with the challenge of finding
custom.
I. INTRODUCTION ........................................................................... 1894
II. METHODOLOGY .......................................................................... 1900
III. CONTEXT .................................................................................... 1904
IV. RESULTS ...................................................................................... 1908
A. QUALITY OF ANALYSIS .......................................................... 1908
B. PAROCHIALISM .................................................................... 1909
C. MULTILATERALISM .............................................................. 1917
D. DELEGATION ....................................................................... 1921
1. Generation n ............................................................. 1921
2. Generation n–1 ......................................................... 1924
V. IMPLICATIONS ............................................................................. 1934
A. DISUSE OF THE TRADITIONAL DOCTRINE ............................... 1935
*Assistant Professor of Law, Marquette University Law School; J.D., Stanford Law
School. Sincere thanks to Bruce Boyden, John Coyle, Jean Galbraith, Jack Goldsmith, Nadelle
Grossman, Mitu Gulati, Vada Lindsey, Dave Moore, Michael O’Hear, Chad Oldfather, David
Papke, Andrea Schneider, and the participants in the 2015 Inland Northwest Scholars’ Workshop
for helpful comments on earlier drafts, and to Alex DeGuire and Ami Regele for excellent
research assistance.
1894 IOWA LAW REVIEW [Vol. 101:1893
B. THE CENTRALITY OF COURTS ............................................... 1940
C. THE IMPORTANCE OF ACCESS ............................................... 1941
D. COMPARISONS TO OTHER COURTS ........................................ 1942
E. A NEW APPROACH TO CUSTOM? ........................................... 1944
VI. RECOMMENDATIONS ................................................................... 1945
VII. CONCLUSION .............................................................................. 1948
I. INTRODUCTION
Questions about customary international law (“CIL”) arise in a wide
variety of federal litigation. For example, the Alien Tort Statute (“ATS”)
provides the district courts with jurisdiction over “any civil action by an alien
for a tort only, committed in violation of the law of nations or a treaty of the
United States.”1 In Sosa v. Alvarez-Machain, the Supreme Court held that the
statute’s reference to the “law of nations”—the old term for CIL—empowers
federal courts to recognize common law causes of action for violations of
international norms that are “accepted by the civilized world” and defined
with adequate specificity.2 Plaintiffs have since relied on the ATS to bring tort
claims against multinational corporations, foreign and U.S. officials,
governments, and private individuals for torture, extrajudicial killing, crimes
against humanity, and war crimes, among other acts.3 In many of these cases,
a central question is whether custom prohibits the alleged conduct.
As another example, the Foreign Sovereign Immunities Act (“FSIA”)
provides that foreign states are immune from the jurisdiction of federal and
state courts unless a statutory exception to immunity applies.4 One such
exception strips immunity in certain cases “in which rights in property taken
in violation of international law are in issue.”5 To decide whether this
language applies, federal courts must often identify the circumstances in
which CIL prohibits governmental takings of private property.6
Similar issues arise in criminal cases. One federal statute establishes a
penalty of life in prison for anyone who, “on the high seas, commits the crime
of piracy as defined by the law of nations, and is afterwards brought into or
found in the United States.”7 In applying this text, courts have looked to CIL
3. See, e.g., John Roe I v. Bridgestone Corp., 492 F. Supp. 2d 988 (S.D. Ind. 2006) (forced
labor); Presbyterian Church of Sudan v. Talisman Energy, Inc., 453 F. Supp. 2d 633 (S.D.N.Y.
2006) (war crimes).
5. Id. § 1605(a)(3).
6. See, e.g., LaLoup v. United States, 29 F. Supp. 3d 530 (E.D. Pa. 2014); Agudas Chasidei
Chabad of United States v. Russian Fed’n, 466 F. Supp. 2d 6 (D.D.C. 2006);.
2016] FINDING CUSTOMARY INTERNATIONAL LAW 1895
to resolve issues such as whether piracy encompasses acts of aiding and
abetting,8 and whether it includes acts of violence that do not accompany a
robbery.9 Elsewhere, judicial efforts to discern custom are often necessary to
apply the so-called Charming Betsy canon, which requires a court to interpret
an ambiguous statute in a way that avoids conflict with international law.10
Finally, questions about CIL arise in constitutional interpretation. In
United States v. Bellaizac-Hurtado, for example, the government prosecuted
several foreign nationals under the Maritime Drug Law Enforcement Act
(“MDLEA”) for engaging in drug trafficking in the territorial waters of
Panama.11 In response, the defendants argued that the statutory prohibition
is unconstitutional—while Article I grants Congress the power to “define and
punish . . . Offences against the Law of Nations,”12 and while that power
confers authority to criminalize conduct that CIL prohibits,13 custom does not
prohibit drug trafficking.14 Persuaded by this argument, the court invalidated
the statute as applied and vacated the convictions.15
As a matter of international law and federal common law, it is clear what
courts should do when faced with these kinds of issues. The traditional
doctrine is that a rule of CIL arises from a “general and consistent practice of
states followed by them from a sense of legal obligation.”16 A correct analysis
would thus seek to answer two questions: first, is there a general and consistent
state practice on the given issue? And second, to the extent such a practice
exists, have states engaged in it out of a sense of international legal obligation
(otherwise known as opinio juris)? With respect to the first question, the
predominant view is that a practice cannot be “general” unless, at a minimum,
a “large share of [the] affected states” have engaged in it,17 that the
8. See United States v. Ali, 982 F. Supp. 2d 85, 86 (D.D.C. 2013).
9. See United States v. Hasan, 747 F. Supp. 2d 599, 603, 640–41 (E.D. Va. 2010).
10. See Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804). See generally
Curtis A. Bradley, The Charming Betsy Canon and Separation of Powers: Rethinking the Interpretive Role
of International Law, 86 GEO. L.J. 479 (1998) (examining the canon’s origins and justifications).
12. U.S. CONST. art. I, § 8, cl. 10.
13. See Eugene Kontorovich, Discretion, Delegation, and Defining in the Constitutio n’s Law of
Nations Clause, 106 NW. U. L. REV. 1675, 1682 (2012) (“The originalist evidence strongly supports
the view that Congress can define only offenses that already exist in international law.”).
14. Bellaizac–Hurtado, 700 F.3d at 1248–49.
15. Id. at 1258. For other examples, see Zivotofsky v. Kerry, 135 S. Ct. 2076, 2084 (2015)
(relying in part on CIL to define the scope of the President’s recognition p ower), and Brown v.
United States, 12 U.S. (8 Cranch) 110 (1814) (using the law of nations in interpreting the
Captures Clause).
16. RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES § 102
(AM. LAW INST. 1987); see also Bellaizac–Hurtado, 700 F.3d at 1252 (“We agree with our sister
circuits that customary international law is determined by examining state practice and opinio
juris . . . .”).
17. Andrew T. Guzman, Saving Customary International Law, 27 MICH. J. INT’L L. 115, 150
(2005); see also JAMES CRAWFORD, BROWNLIE’S PRINCIPLES OF PUBLIC INTERNATIONAL LAW 24 (8th
ed. 2012) (suggesting that CIL requires “substantial uniformity” in state practice).
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