Academic journal article Texas International Law Journal

Sotomayor and the Future of International Law

Academic journal article Texas International Law Journal

Sotomayor and the Future of International Law

Article excerpt


Supreme Court nominations are usually accompanied by a flurry of speculation regarding the nominee's position on various legal issues. In this respect, the nomination of Justice Sotomayor was not exceptional. A significant question presented by commentators at that time was how she would use, interpret, and apply international law if confirmed.

This paper continues the discussion by examining Sotomayor's record on international legal issues. First, it examines the extent to which she has treated international law as binding authority within the domestic sphere. Second, it evaluates her view of the role of foreign jurisprudence in the interpretation of international agreements. Third, it explores cases in which she has looked to foreign jurisprudence in interpreting domestic legal provisions concerning foreign-nationals and in which she has dealt with customary international legal issues. Fourth, it analyzes her speeches, writings, and confirmation-hearing responses in order to shed light on the question of her potential future use of foreign law in deciding domestic legal issues.

After examining her decisions, speeches, and writings, this paper concludes that she is receptive to the use of international law, although she will not always prioritize international law over domestic law. There is especially strong evidence that she favors the use of foreign jurisprudence when interpreting treaties and when defining certain legal terms in order to apply domestic law to foreign nationals. There is further evidence that she favors the use of foreign law to aid in the interpretation of domestic law under certain circumstances.

This paper also notes that the infrequency with which she has dealt with international law and the narrowness of her holdings make it difficult to predict her future treatment of international law. Ultimately, Sotomayor's treatment of international law is not internally consistent; that is, she does not always subrogate domestic law to international law, nor does she consistently treat domestic law as a superior source of legal authority to international law. Rather, her cases demonstrate that, depending on the legal issues and the fact pattern at hand, either international law or domestic law may prevail. The only consistencies across all of her jurisprudence concerning international legal issues are: (1) her reliance on precedent; and (2) her tendency to craft narrow holdings which do no more than answer the question at hand. Her new post on the nation's highest court may lead her to either broaden her holdings or break from precedent. If either change should occur, we may glean a clearer view of Sotomayor's position on the proper place of international law in the American legal order.


The relationship between international treaties and domestic law has long been disputed. The President has the power to make treaties with the advice and consent of two-thirds of the Senate.1 Once made, the Supremacy Clause declares these treaties "the supreme law of the land,"2 but the analysis of their effect in the domestic sphere does not end there.3 In consequence, while all treaties may be the supreme law of the land for the purpose of creating international legal obligations, the precise domestic legal effect of their provisions is anything but uniform.4

Sotomayor's opinion in United States v. Ni Fa Yi shows that, although she respects Congress's role in making treaty provisions binding by passing legislation, equal protection concerns might affect her determination of when these provisions are binding.5 In contrast, her decision in European Community v. RJR Nabisco demonstrates a willingness to defer to the executive branch when her decision will have foreign policy implications.5

A. Congressional Enactments of Treaty Provisions are Subject to Judicial Scrutiny

Sotomayor's opinion in Ni Fa Yi indicates that she does not consider treaty obligations as a source of law that is separate from Congressional legislation. …

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