International Law in American Courts

This Work addresses the status of international law in American courts and the power of those courts directly to apply rules of international law. It concludes that the current treatment of international law by U.S. courts, as it has developed over the past several decades, is gravely flawed. That treatment is contrary to the Constitution’s text, history and objectives, inconsistent with the treatment of international law by American courts for the 200 years following ratification, and inimical to the United States’ contemporary national interests. The Work also concludes that there are readily available means for remedying these defects, by returning to the treatment of international law that was intended by the Framers, either through straightforward textual interpretation of the Constitution or through formulation of equally straightforward contemporary rules of federal common law. 

More specifically, the Work concludes that, contrary to much recent authority, all rules of international law – known to the Framers as the “law of nations” – have the status of part of the “Laws of the United States.” This body of federal law encompasses all international law rules, including rules of public international law, which define the rights and duties of nations, and rules of private international law, which define the extent of U.S. judicial and legislative jurisdiction over foreign parties and conduct, and the effects of foreign laws, judgments and judicial proceedings in U.S. courts; this body of federal law does not include other rules of law, including contract, tort, agency, property and the like, and is instead limited only to matters of international law. 

The Work also concludes that, notwithstanding their status as federal law, particular rules of international law may only be applied by U.S. courts if the federal political branches have authorized direct judicial application, making them “self-executing.” This approach treats all international legal obligations of the United States – treaties, international agreements and customary international law – in the same manner: although all rules of international law which are binding on the United States are presumptively applicable in American courts, as part of the law of the land, some such rules are addressed to the political branches, not the judiciary, for application. Under this analysis, most treaties and most rules of private international law would be directly applicable in U.S. courts, regardless whether they had been implemented by congressional statute, while some, but not all, customary rules of public international law would have self-executing status. 

The Work’s analysis accords rules of international law the same status as that which was intended by the Framers – as part of the Laws of the United States under Articles III and VI of the Constitution – and which prevailed for much of the Nation’s history. That analysis also seeks to ensure that the Framers’ objectives of advancing the interests of the United States and its citizens, rather than those of individual states, in matters of foreign relations and international law will be achieved. In so doing, the Work’s analysis also advances the United States’ contemporary interests – in contrast to the current treatment of international law by American courts, which does the opposite. 

What’s in this Work:

As outlined above, this Work discusses: (a) the treatment of public and private international law in the United States under the U.S. Constitution, including the sources and status of international law in the Framers’ generation; (b) the U.S. Constitution’s allocation of authority over the United States’ foreign relations and international commerce; (c) the treatment of treaties, other international agreements and rules of customary international law in American courts following ratification of the Constitution; (d) the contemporary treatment of rules of both public and private international law in American courts; and (d) the appropriate treatment of public and private international law in American courts.

How this will help you:

The proposed Work has multiple audiences, including the U.S. international law community (academics, practitioners, courts, policy-makers and students). The Work’s historical discussions are of direct interest to U.S. academics (both international law and legal history), while its discussions of current practice and proposals for reform are of direct interest to U.S. courts and practitioners (particularly because the Work addresses issues of both public and private international law). The Work will also be of interest outside the United States, given the similar issues that arise in other legal systems (particularly the European Union, Australia, Canada and other federal states).