The Domestic Legal Status of Customary International Law in the United States: Lessons from the Federal Courts' Experience with General Maritime Law

By Ginn, David | Journal of International Law & International Relations, Winter 2008 | Go to article overview

The Domestic Legal Status of Customary International Law in the United States: Lessons from the Federal Courts' Experience with General Maritime Law


Ginn, David, Journal of International Law & International Relations


Table of Contents

I. Introduction

II. The Domestic Legal Status of Customary
International Law

   A. Customary International Law

   B. The CIL Debate

   C. Federal Common Law

   D. Isolating the Important Questions

III. The Domestic Legal Status of General Maritime
Law

  A. How does Maritime Law Become Part of US Law?
  How Much of Maritime Law is Part of US Law?

  B. What are the Characteristics of General Maritime Law
  under US Law?

     1. Supremacy

     2. Preemption

     3. Federal Question Jurisdiction

     4. Supreme Court Review

     5. Miscellaneous

  C. Under What Circumstances May Courts Incorporate
  General Maritime Law into US Law?

IV. The Domestic Legal Status of Customary
International Law Reconsidered

I. Introduction

The institutional dimension of state behaviour has received insufficient attention in the international law and international relations literature. Scholars typically assume that states are unitary actors driven by discrete motivations; for most states, however, national authority over foreign affairs is distributed across many different government bodies. In the United States, for example, authority over the interpretation, implementation, and enforcement of international treaties is shared by Congress, (1) the President, (2) the federal judiciary, (3) and various state institutions. (4) Commentators who ignore these internal arrangements may misunderstand some of the complex processes that determine state behaviour on the international plane.

A new generation of political scientists and international law scholars has taken this insight to heart. Casting aside explanations of national behaviour that assume a unitary state, these scholars have begun to explore the role of domestic institutions in foreign relations. (5) They have paid particularly close attention to the activities of courts, which are thought to 'create mechanisms for ensuring that a state abides by its international legal commitments whether or not particular government actors wish it to do so.' (6) Legislators and executive officers may also contribute to international legal compliance by enforcing international legal norms against other government actors.

Building on this body of work, this article explores the significance of domestic institutions by focusing on the reception of customary international law (CIL) (7) into the domestic legal system of the United States. Because there are few international mechanisms for enforcing CIL against states, domestic enforcement of CIL is crucial to ensuring compliance. States that grant their domestic institutions significant enforcement authority will likely comply with CIL more consistently than states that withhold such authority. (8) The status of CIL in the United States legal system is thus of great importance: if CIL is binding domestic law, enforceable in domestic courts, then the United States will be more likely to comply with international legal norms; if CIL is not binding domestic law, the President and other government actors will enjoy greater discretion in deciding how to respond to international legal problems.

Despite the importance of this question, the domestic legal status of CIL is hotly contested. Until recently, it was widely assumed that CIL automatically operated of its own force as a type of federal common law (9) in United States courts. Professor Louis Henkin, for example, has written that customary international law 'is "self-executing" and is applied by courts in the United States without any need for it to be enacted or implemented by Congress.' (10) The Restatement (Third) of the Foreign Relations Law of the United States echoes this view: '[c]ustomary international law is considered to be like common law in the United States, but it is federal law' (11) which can 'supersed[e] inconsistent State law or policy.' (12) With few exceptions, the federal courts have adopted a similar stance. …

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 ...
Default project is now your active project.
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 Domestic Legal Status of Customary International Law in the United States: Lessons from the Federal Courts' Experience with General Maritime Law
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
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

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.