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A Revised Revisionist Position in the Law of Nations Debate

by David M. Howard

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Abstract

One of the most contentious debates in the legal field has continued for decades over the question: is customary international law incorporated into U.S. domestic law? This question has sparked controversy that has resulted in multiple positions but no definite answer—the modern position with Dean Harold Koh and Professor Carlos Vasquez to the revisionist position with Professors Curtis Bradley and Jack Goldsmith. The U.S. Supreme Court has declined to answer this question while acknowledging the importance of its impact on U.S. law. The latest case before the Supreme Court—Jesner v. Arab Bank—touched upon this debate once again, and while its decision implicitly supports the revisionist position, the Court did not resolve this debate.

This Article posits that the revisionist position put forth by Professors Curtis Bradley and Jack Goldsmith was ultimately correct—with a slight revision. This Article concludes that: (1) the traditional law of nations is exclusively within federal law, while modern CIL can be adopted by the states; and (2) the law of nations only becomes federal law if either (a) the Constitution permits or requires the law of nations in interpretation of its provisions; or (b) the political branches adopt CIL or give the judiciary jurisdiction to decide questions regarding the law of nations.

A Revised Revisionist Position in the Law of Nations Debate

by David M. Howard

Click here for a PDF file of this article

Abstract

One of the most contentious debates in the legal field has continued for decades over the question: is customary international law incorporated into U.S. domestic law? This question has sparked controversy that has resulted in multiple positions but no definite answer—the modern position with Dean Harold Koh and Professor Carlos Vasquez to the revisionist position with Professors Curtis Bradley and Jack Goldsmith. The U.S. Supreme Court has declined to answer this question while acknowledging the importance of its impact on U.S. law. The latest case before the Supreme Court—Jesner v. Arab Bank—touched upon this debate once again, and while its decision implicitly supports the revisionist position, the Court did not resolve this debate.

This Article posits that the revisionist position put forth by Professors Curtis Bradley and Jack Goldsmith was ultimately correct—with a slight revision. This Article concludes that: (1) the traditional law of nations is exclusively within federal law, while modern CIL can be adopted by the states; and (2) the law of nations only becomes federal law if either (a) the Constitution permits or requires the law of nations in interpretation of its provisions; or (b) the political branches adopt CIL or give the judiciary jurisdiction to decide questions regarding the law of nations.