Academic journal article Denver Journal of International Law and Policy

The Status of Customary International Law in U.S. Courts - before and after Erie

Academic journal article Denver Journal of International Law and Policy

The Status of Customary International Law in U.S. Courts - before and after Erie

Article excerpt


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. …

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