The status of customary international law in U.S. courts - before and after Erie.

• Author: Bradley, Curtis A.

1. INTRODUCTION

   The greatest weakness of international human rights law may be the lack of an effective enforcement mechanism. There is, to date, no general international criminal court. The jurisdiction of existing international tribunals, such as the International Court of Justice, often requires state consent, and the formal sanctions for noncompliance with the tribunals' decisions are often weak or nonexistent. Needless to say, the domestic courts of the alleged violator of human rights cannot always be counted on to provide an effective forum for enforcement. Although there are less formal methods of enforcement, such as monitoring by international organizations and self-reporting, these methods are not generally regarded as sufficient to deter widespread human rights abuses. As Professor Mark Janis has observed, "The central problem has become not so much finding a universal law of human rights (most agree that one now exists), but enforcing that law."(1)

   This enforcement problem may explain why human rights advocates have been so intent on having U.S. courts pass judgment on alleged human rights abuses occurring in other countries. Given encouragement by the seminal Filartiga decision,(2) there have been numerous cases brought in recent years concerning alleged human rights abuses committed in places such as Bosnia,(3) Ethiopia,(4) Guatemala,(5) and the Philippines.(6) These cases typically involve torture, summary execution, war crimes, or other egregious conduct by foreign government or quasigovernment actors. Although it may be difficult for the plaintiffs in these cases to collect damage awards, many of them find value in simply obtaining a formal condemnation of the conduct in question.(7)

   Lawyers and commentators are now turning their attention inward to some extent, seeking to apply the international human rights standards to U.S. government actors.(8) Again, they are looking to U.S. courts. And, for a variety of reasons, the international law they seek to have the courts apply is customary rather than codified.(9) This customary law, they argue, has the status in this country of federal common law.

   In a recent article, Professor Jack Goldsmith and I provided a critique of the proposition that customary international law has the status of federal common law, a proposition that we called the "modern position."(10) The modern position has become widely accepted only in the last twenty years, and to date it has been invoked primarily in international human rights litigation. Among other things, it has been invoked to support the constitutionality of the Alien Tort Statute, which purports to give the federal district courts 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."(11) Many suits brought under the Alien Tort Statute are between aliens and concern alleged violations of customary international law. Because Article III diversity jurisdiction does not extend to suits between aliens,(12) it may be that federal courts can constitutionally hear such cases only if customary international law has the status of federal law.(13)

   The potential consequences of the modern position, however, are far greater than merely opening the doors of the federal courts to alien-alien suits under the Alien Tort Statute. If customary international law has the status of federal common law, it presumably preempts inconsistent state law in this country.(14) Thus, to recite a few examples, it might be used to invalidate state laws ranging from death penalty provisions, to state immigration measures like California's Proposition 187, to limitations on the rights of homosexuals.(15) Perhaps even more dramatically, some proponents of the modern position argue that, because customary international law is federal law, the President may be compelled by the courts to follow it.(16) Some proponents even argue that customary international law supersedes inconsistent federal legislation, at least if the customary international law is formed after the enactment of the legislation.(17) Professor Jordan Paust, a fellow panelist at; this Colloquium, goes so far as to argue that some customary international law norms have the status of U.S. constitutional law and therefore supersede even later-in-time federal legislation.(18)

   For purposes of this panel discussion on the impact of international law in the domestic arena, I will elaborate on two points made by Professor Goldsmith and myself in our recent article: first, that customary international law did not have the status of federal law in the nineteenth century; and, second, that customary international law's purported status today as federal common law is at least in tension with the Supreme Court's decision in Erie Railroad v. Tompkins.(19) In doing so, I will discuss several examples that tend to clarify and confirm these claims. In addition, because Professor Paust is a participant on this panel, I will highlight some areas of disagreement between Professor Paust and myself. I will not attempt here, however, a point-by-point rebuttal of Professor Paust's "some nineteen points of disagreement and concern" with Professor Goldsmith's and my views (recited by Professor Paust without much explanation in a long footnote),(20) although much of what I say here will be relevant to those points.(21)

2. STATUS OF CUSTOMARY INTERNATIONAL LAW IN THE NINETEENTH CENTURY

   A number of courts and commentators have relied on history to support their claim that customary international law today has the status of federal common law. The court in Filartiga, for example, claimed that customary international law "has always been part of the federal common law."(22) Other courts have invoked history in claiming that it is "well settled" that customary international law has the status of federal common law.(23) Several commentators similarly have claimed that customary international law had the status in the nineteenth century of federal law.(24) In making these claims, courts and commentators typically cite to statements in early Supreme Court decisions referring to the law of nations as, for example, "part of the law of the land"(25) or "part of our law."(26)

   These courts and commentators are impliedly arguing that, because customary international law had a certain status in the nineteenth century, it should have that status today. The proper weight to be attributed to history in legal analysis is, of course, a matter of substantial controversy.(27) Moreover, "[h]istory itself cannot justify guidance by history"; rather, the justification "must ... come from theory."(28) My focus here is not on that theoretical question, however, but rather on the premise that customary international law had the status in the nineteenth century of federal law. The historical evidence suggests that courts and commentators have been taking statements by the Supreme Court out of context and that customary international law was not in fact treated in the nineteenth century as federal law.(29)

   In the nineteenth century, federal courts applied a body of law that has come to be referred to as "general law" or "general common law."(30) General common law was not viewed as emanating from any one sovereign source, but rather from "common practice and consent among a number of sovereigns."(31) In Justice Holmes' words, general common law was "a transcendental body of law outside of any particular State but obligatory within it unless and until changed by statute.(32) Thus, "American courts resorted to this.., body of preexisting law ... without insisting that the law be attached to any particular sovereign."(33)

   The important point for present purposes is that general common law was not viewed as federal law. In particular, it was not considered part of the "Laws of the United States" within the meaning of Articles III and VI of the Constitution. Thus, federal court interpretations of general common law were not binding on the states, and a case arising under general common law did not establish federal question jurisdiction.(34)

   Prior to Erie, customary international law (referred to in the nineteenth century as part of the "law of nations")(35) had the status of general common law.(36) Indeed, the Supreme Court's most famous application of general common law, Swift v. Tyson? involved the law merchant, which was then a component of the law of nations? Customary international law, like other general common law, was viewed as emanating not from a particular sovereign source, but rather from principles of natural law and from international custom.(39) When. courts applied this law, they were not seen as "legislating," because, among other things, the law was believed to be objective and discoverable.(40)

   Importantly, customary international law, like other general common law, was not considered part of the "supreme Law of the Land" in Article VI? Nor was it considered part of the "Laws of the United States" for purposes of constitutional or statutory federal question jurisdiction.(42) These historical conclusions, although resisted by some commentators,(43) are supported by several examples.

   First, the Supreme Court in the nineteenth and early twentieth centuries consistently refused to review lower court rulings concerning customary international law, on the ground that the cases did not arise under federal law. In an 1875 decision, for example, the Court held that it lacked jurisdiction to review issues concerning "the general laws of war, as recognized by the law of nations" because such issues did not involve "the constitution, laws, treaties, or executive proclamations, of the United States" but rather concerned only "principles of general law alone."(44) The Court reached this conclusion over Justice Bradley's lone dissent, in which he specifically argued that a claim under "unwritten international law" is made under the...