Customary International Law as U.S. Law: A Critique of the Revisionist and Intermediate Positions and a Defense of the Modern Position

By Vazquez, Carlos M. | Notre Dame Law Review, August 2011 | Go to article overview

Customary International Law as U.S. Law: A Critique of the Revisionist and Intermediate Positions and a Defense of the Modern Position


Vazquez, Carlos M., Notre Dame Law Review


INTRODUCTION
    I. THE MODERN POSITION" EXPLICATION AND PRELIMINARY
       DEFENSE
       A. The Basic Case for the Modern Position
          1. Constitutional Structure and Original Intent
          2. Pre-Erie Doctrine
             a. State Authority to Depart from Customary
                International Law
             b. Supreme Court Review of Customary
                International Law
             c. The General Law as an Intermediate Status
          3. Post-Erie Doctrine
       B. The Limits of the Modern Position
          1. Sabbatino and the Inapplicability of Some
             Customary International Law Norms to Some Acts
             of Foreign States
          2. The Paquete Habana and the Applicability of
             Customary International Law to Federal Officials
       C. Sosa and the Modern Position
   II. THE INTERMEDIATE THEORIES
       A. Ramsey's Position
          1. Nonpreemptive Federal Law as State Law
          2. Ramsey's Textual and Historical Support
       B. Young's Position
          1. Young's Criticisms of the Modern Position
          2. Young's Intermediate Status for Customary
             International Law
             a. State Choice-of-Law Rules
                i.   The Diversity and Indeterminacy of
                     Existing Choice-of-Law Approaches
                ii.  The Inappositeness of Choice-of-Law Rules
                iii. The Likelihood of Special Choice-of-Law
                     Rules
                iv.  The Role of the Federal Courts
                v.   Summary
             b. Federal Choice-of-Law Rules
       C. Aleinikoff's Position
       D. The Bellia-Clark Position
       E. The Bradley-Goldsmith-Moore Position
  III. THE MODERN POSITION, REDUX
       A. The New Ways of Making Customary International Law
       B. The New Topics Addressed by Customary International Law
   IV. STATE INCORPORATION OF CUSTOMARY INTERNATIONAL LAW
CONCLUSION

INTRODUCTION

In a recent referendum, the citizens of Oklahoma overwhelmingly approved a State constitutional amendment providing that the courts of the State "shall not consider international law or Sharia law" in rendering their decisions. (1) The amendment's exclusion of Sharia law has garnered most of the media attention, (2) but more consequential by far is the measure's directive to the State courts to disregard international law. Similar measures have been proposed in other States, some of them merely barring consideration of Sharia law or foreign law, (3) but others barring consideration of international law as well. (4) These measures are clearly unconstitutional insofar as they would prohibit the State courts from enforcing one of the two main forms of international law--treaties--as the U.S. Constitution by its terms requires State courts to give effect to the nation's treaties, "any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." (5) But the federal Constitution does not expressly address the status of the other principal form of international law--customary international law, or the unwritten law that governs the relations among states and "results from a general and consistent practice of states followed by them from a sense of legal obligation." (6) These proposed State laws thus starkly raise the question whether the States may prohibit their courts from giving effect to the United States' obligations under customary international law. (7)

The answer provided by the Restatement (Third) of Foreign Relations Law is a clear "no." Reflecting the settled view regarding the status of customary international law in the U.S. legal system at the time that it was approved in 1987, the Restatement asserts that such law has the status of federal law. (8) As such, it preempts inconsistent State law; State courts must follow federal court interpretations of it; and State court interpretations of it are reviewable in the federal courts. …

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
  • A full archive of books and articles related to this one
  • 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

Customary International Law as U.S. Law: A Critique of the Revisionist and Intermediate Positions and a Defense of the Modern Position
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?

Help
Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    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.