The Use of International Law in the American Adjudicative Process

By Wald, Patricia M. | Harvard Journal of Law & Public Policy, Spring 2004 | Go to article overview

The Use of International Law in the American Adjudicative Process


Wald, Patricia M., Harvard Journal of Law & Public Policy


Thanks very much for the introduction. I'm delighted to be here. Actually, it's my third appearance at a Federalist Society program. I've always found them very interesting, and I suspect this one will be both interesting and provocative.

Now the title that I was given to talk about or "debate"--we'll see which it turns out to be--was the use of international law in the American adjudicative process. That's quite a broad topic, and I wanted to emphasize that right at the beginning, because it includes quite diverse situations: for instance, it includes the use of international treaties and compacts to guide American courts in disputes over international trade, contracts, and the like. The United States, as we all know, has signed and ratified dozens, maybe even hundreds, of international compacts on subjects such as the international sale of goods, the World Trade Organization, the North American Free Trade Agreement, the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, and the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards.

Now clearly when the U.S. is a party to such contracts, the terms of those agreements will bind our courts. Even when we're not, I doubt that there's much controversy over whether our courts can look at those compacts as evidence of the practices of reasonable persons or nations under particular circumstances. And we also have our own Supreme Court in the area of statutory construction as far back as Murray v. Schooner Charming Betsy in 1804 telling us "an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains." (3)

There are, however, two areas where even though it is accepted that international law is relevant, controversy exists as to which sources American judges can look to discover that international law.

The first is the area known as the Alien Tort Claims Act ("ATCA"), which accords jurisdiction to the district courts over torts "committed in violation of the law of nations." (14) Now I recognize there is an initial dispute about whether ATCA confers a cause of action for such torts or whether that would need separate legislation, as the U.S. Government argues in its brief in a case currently awaiting decision by the Supreme Court. (15)

But leaving that aspect aside, there's also been controversy--and I think this is more relevant to the subject of our "debate"--over what sources American judges can look at when deciding what are the elements of such torts that violate the law of nations. In other words, should they look at our own tort law or something called customary international law, which the United States has alleged in an amicus brief authorizes reference to "unratified or non-self-executing treaties, non-binding United Nations General Assembly resolutions, and purely political statements?" (16)

It bears mentioning that American courts have, in fact, said that violations of international law for purposes of the ATCA must be "of a norm that is specific, universal, and obligatory;" (17) the fundamental debate appears to be whether treaties the U.S. has not agreed to abide by, or compacts that it does not accept as self executing or as creating private causes of action, can nevertheless be viewed by courts as evidence of international customary law in deciding whether the elements of a violation of the law of nations has been proven.

Of course, I would agree that caution and thoughtful consideration is needed in classifying documents and resolutions and unratified treaties to see whether they satisfy the definitional requirements of customary international law for that purpose. That process, however, in my view, has in the main been carried out responsibly by our American judiciary, and it's not a new one.

For hundreds of years, our Supreme Court has recognized the existence of customary international law as that which, while not ensconced in binding treaties, represents norms to which civilized nations feel obliged to conform, and the Supreme Court has identified its sources as "the works of jurists and commentators, who by years of labor, research and experience, have made themselves peculiarly well acquainted with the subjects of which they treat.

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

The Use of International Law in the American Adjudicative Process
Settings

Settings

Typeface
Text size Smaller Larger
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.