I, Too, Sing America: Customary International Law for American State and Federal Courts' Post-kiobel Jurisprudence, Guided by Australian and Indian Experiences

• Publication year: 2014

I, Too, Sing America: Customary International Law for American State and Federal Courts' Post-Kiobel Jurisprudence, Guided by Australian and Indian Experiences

Katherine M. Davis

I, TOO, SING AMERICA: CUSTOMARY INTERNATIONAL LAW FOR AMERICAN STATE AND FEDERAL COURTS' POST-KIOBEL JURISPRUDENCE, GUIDED BY AUSTRALIAN AND INDIAN EXPERIENCES

Abstract

In the excitement of the wake of the United States Supreme Court's 2013 Kiobel v. Royal Dutch Petroleum Co. decision, one less-addressed matter is the unresolved status of customary international law in American courts. This Comment highlights a lack of literature engaging comparative study of federally structured nations' experiences implementing customary international law within their state and federal courts, and proposes that such a study may aid in resolving the American dilemma. This Comment studies Australian and Indian experiences, then uses the findings to look back toward the American experience for possible solutions for the status of customary international law. While not endeavoring to resolve the entire issue of customary international law status, this Comment finds three helpful implications in the comparative study. Two are meta principles, and one is a concrete canon suggestion that would diffuse a subset of problem areas for customary international law implementation in American courts.

First, the American solution need not be as extreme as American theorists argue, given that multiple other federal nations successfully engage and implement customary international law within state and federal courts alike without resorting to such absolute strategies. Second, demonstrating that multiple other federal nations have similar reservations toward any sweeping implementation of customary international law, popular condemnations of America's isolationism and exceptionalism from customary international law should be more tightly correlated to a benign and unavoidable function of federalism than to a malicious and uniquely American elitism. Finally, borrowing from an Indian state court decision, this Comment proposes a customary international law equivalent of a Charming Betsy canon for interpreting municipal, state and federal laws. Under such a canon, when there exist multiple possible constructions of a municipal, state, or federal law, the construction conforming to customary international law would be used.

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Ultimately, this Comment finds that a look outside American borders for resolution of domestic customary international law status provides a fresh perspective to re-focus the standing polarized discourse.

Introduction..............................................................................................122

I. History of CIL Debates in the United States............................127

A. Confusion and Dissention Begin with the Mere Definition of CIL............................................................................................. 127
B. Problems from the Start: A Body of Law as Amorphous as CIL is Anathema to a Nation of Laws, Not of People................ 130

1. On Its face, Modern CIL Does Not Seem to Fit the American Federal Judiciary Model..................................... 131
2. Both the U.S. Constitution and the Alien Tort Statute Acknowledge CIL and Call for Its Domestic Incorporation. 133

C. American Precedent Narrowed CIL Implementation Discussions Over Time .............................................................. 134

1. Erie Sparked Debate Between Modernists and Revisionists.......................................................................... 136
2. sosa Slightly Narrowed the Debate but Demonstrated a Stalemate ............................................................................. 137
3. Kiobel Re-sparked Debate and Further Narrowed ATS Parameters .......................................................................... 138
4. Unresolved Still Today: Potential Circuit Splits Developing over Kiobel ....................................................... 140

D. The Way Forward Is Uncharted in the United States, But Not Elsewhere .................................................................................. 142

II. Comparing the Indian and Australian Experiences................143

A. Why India and Australia? A Mutually Beneficial Give-and-Take for Federal Nations Resolving the Status of CIL in Domestic Courts ........................................................................ 143

1. Differences in Separations of Power................................... 145

B. The Australian Experience with CIL ......................................... 148

1. Introduction to Australia ..................................................... 148
2. Australian High Court Cases .............................................. 149
3. Australian State Court Cases .............................................. 152
4. Conclusions on the Australian Experience .......................... 156

C. The Indian Experience with CIL ................................................ 158

1. Introduction to India............................................................ 158
2. India Supreme Court Cases ................................................. 159

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3. India High Court Cases....................................................... 160
4. Conclusions on the Indian Experience ................................ 163

D. Comparative Analysis Conclusions ........................................... 164

1. Harmoniously Engaging and/or Implementing CIL in a Federal Nation's State and Federal Courts is Possible ...... 164
2. The Engagement and/or Implementation of CIL in a Federal Context Does Not Require the Extreme Reach of the Modernist or Revisionist Position ................................. 165
3. CIL Enriches Judicial Decisions Even When Only Engaged and Not Implemented ........................................... 166
4. CIL Engagement Requires a Tailor-Made Approach for Any Federal Nation ............................................................. 166

III. Importing Lessons Learned..........................................................167

A. Two Modes of CIL Implementation Utilized in Australia and India May Have Potential in American Courts ......................... 167

1. American Courts Could Consider Implementing the Madras High Court's Proposed Canon of Interpreting Ambiguous Municipal Law in Compliance with CIL .......... 168
2. American Courts Could Consider Following Australian and Indian Courts' Lead in Interpreting Treaty Commitments as CIL ........................................................... 170

B. Seeming Exceptionalism in Resistance to CIL is at Least Partially Valid for Most Federal Nations, and Need Not Be So Closely Associated with "Navel-Gazing" ............................ 173
C. Conclusion: The Lessons Learned from India and Australia Are Primely Applicable to the American Experience ................ 176

iv. implications for american state and federal Jurisprudence, and for Further Research................................176

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Introduction

The status of customary international law (CIL) in American courts is unresolved. For years, academics had the luxury of addressing the issue through abstract legal theory because its resolution was unnecessary.¹ If the resolution of CIL status seemed less than pressing in the past,² Kiobel v. Royal Dutch Petroleum Co. revamped a need for resolution by re-engaging judicial dialogue on the Alien Tort Statute (ATS), which permits litigation for CIL violations.³ As the American legal community returns its gaze to CIL in the wake of Kiobel, some mode of CIL engagement and implementation is necessary.⁴ Toward that aim, this Comment seeks to answer two questions. First, considering the lack of resolution on CIL status in domestic courts, are there paths toward resolution that have not been considered? Much of the debate thus far appears to be a rehashing—and sometimes contortion—of United States Supreme Court precedent.⁵ For all the acrobatics, none seems to

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produce a successful solution or even reduce the tremendously polarized nature of standing debates. Those debates are generally dominated by modernists, who believe CIL carries de facto federal law status; and revisionists, who assert that CIL has no binding status unless legislated.⁶ Finding that comparative study of other nations' implementation and engagement of CIL in state and federal courts is an unexplored path,⁷ this Comment conducts such a study of Australian and Indian precedent.

That study leads to the second focal question: can new paths shed light on the original question of CIL status in American courts? Without endeavoring to resolve the American CIL dilemma entirely, this Comment offers three findings from the Australian and Indian experiences that may contribute toward a coming solution for American jurisprudence. First, finding that multiple other federal nations successfully engage and implement CIL within state and federal courts alike without resorting to such absolute strategies as those proposed by American theorists, the American solution(s) need not be so extreme. Second, the Australian and Indian CIL experiences provide a commentary on negative associations of seeming American indifference toward CIL with American judicial exceptionalism; both that the united States is not alone in such tendencies, and that there are multiple grounds for asserting that the isolationism or exceptionalism should not be so tightly correlated to elitism. Third, one Indian state court proposed a canon of interpretation for municipal law relative to CIL that may resolve at least one of America's jurisdictional qualms.⁸ Considering the role of state courts in CIL engagement, taking from both Indian and Australian precedent, this Comment proposes a CIL-equivalent of a Charming Betsy canon⁹ for interpreting

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municipal, state and federal laws relative...