Academic journal article Duke Journal of Comparative & International Law

A Normative Model for the Integration of Customary International Law into United States Law

Academic journal article Duke Journal of Comparative & International Law

A Normative Model for the Integration of Customary International Law into United States Law

Article excerpt


We live in a world of increasing globalization in which international law, previously the domain of States and sovereigns, increasingly affects us in our daily lives. As the nations of the world seem to rush headlong toward internationalization of law, integration of markets, and centralization of government, it is necessary at times to take a step back and examine the goals and consequences of this seemingly unstoppable movement. It is with this aim that this Note will attempt to examine the recent debate regarding customary international law and its integration into U. S. law between Professors Curtis Bradley and Jack Goldsmith on one side, and Professor Harold Koh on the other. After reviewing the positions of both sides in this debate, this Note will then present a constructive compromise, embodying the most positive elements from the various arguments to remedy the apparent flaws in both positions.


Before entering this debate, however, a preliminary explanation of customary international law is due. Customary international law is one of the two primary sources of international law which, along with treaties, makes up the bulk of international law rules.(1) Unlike treaties, which are contractual in nature and generally written instruments, customary international law is composed of two elements: State practice and opinio juris, or the sense of legal obligation under which a State acts.(2) Through analysis of these two elements, as well as their duration and character, rules of customary international law eventually develop and gain acceptance by the international community as binding law.(3) Traditionally, customary international law has covered areas of international law such as the laws pertaining to territory, immunities, the law of the sea, and the use of force by one State against another.(4) Customary international law is often later codified by treaty.(5)

With the increasing modern development of certain areas of international law, including international human rights law, customary international law has come to cover many areas of the law that it historically did not.(6) Such human rights principles that have attained the status of customary international law include prohibitions on slavery and torture.(7) However, due to the evolutionary process of the creation of customary international law and the subjective nature of its recognition, there are other more controversial principles which are argued also to have attained customary international law status. These principles include prohibitions of some uses of the death penalty,(8) of discrimination based on sexual orientation,(9) and of "the advocacy of national, racial or religious hatred."(10) As is evident from these examples, modern human rights law--and thus customary international law--seeks to govern not only the relationships between States, but also the relationship between a State and its citizens and the relationships of citizens one to another.(11)

In the United States, international human rights law has been applied in federal courts largely under the auspices of the Alien Tort Statute (ATS), which establishes federal jurisdiction for "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."(12) Thus, as interpreted by the Second Circuit Court of Appeals in Filartiga v. Pena-Irala,(13) the ATS grants federal question jurisdiction under federal common law for claims under the Act arising from breaches of customary international law.(14) In holding that customary international law was part of federal common law, the court established the ATS as constitutional in granting jurisdiction under one of the established jurisdictional categories of Article III of the Constitution.(15) Thus, claims based on customary international law could satisfy federal court jurisdiction and be decided as a matter of federal common law. …

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