I like the Article’s treatment of one of the broadest claims for CIL made by modern position proponents. A number of very respected scholars, including Dean Harold Koh and Professor Jules Lobel, have argued that CIL has always been understood to form a part of the “Law of the United States” as that phrase is used in Articles III and VI of the U.S. Constitution. Relatedly, these scholars have argued (and the post-
Filartiga courts accepted) the view that CIL is a form of federal law for purposes of subject-matter jurisdiction and that it preempts inconsistent state law. I think it is fair to say, as the Article does, that the
Sosa decision simply cannot be read to endorse this “nationalist” view of CIL.
On the other hand, I’m not sure I agree with the Article that the Sosa court resolved this question either way. Around Part IV.A. (pp. 21-22), the Article flatly declares, “As a result, Sosa eliminates one of the two central pillars on which the modern position rested — the notion that CIL was historically federal law and therefore outside Erie’s reach.” But the Sosa court studiously avoided any deep analysis of this question, probably because it didn’t have to do so in order to resolve the case before it. Its analysis recognized that CIL was treated as part of the “common law” but I don’t think a later Court is precluded from also concluding that CIL is a special kind of “common law” that the Founders recognized was also part of the “Law of the United States.” Those broad historical statements about CIL as the “Law of the Land” and the “Law of the United States” are still out there to be wielded in some future amicus brief.
This leads me, rather indirectly, to the question I wish the Article provided a fuller answer to: Does CIL, as interpreted by federal courts, bind the Executive Branch? If it is part of the “Law of the United States” in either Article III or Article VI of the Constitution, this is strong evidence of its binding effect. If not, then what domestic effect does CIL have on the Executive Branch?
The Article criticizes the Office of Legal Counsel’s famous 2002 opinion claiming that “any customary law of armed conflict in no way binds, as a legal matter, the President or the U.S. Armed Forces concerning the detention or trial of members of al Qaeda and the Taliban.” But the Article then goes ahead and endorses this conclusion as a matter of domestic (but not international) law. As I read the Article, CIL simply has no domestic binding effect on the President although it might bind him (and the country) on the international plane. The President is not bound by the Constitution to follow CIL.
This seems right to me, but I think critics are right that this is a strange situation. In this view, CIL is a kind of common law for domestic purposes, applied by federal courts in particular situations but never against the executive branch.
What happens if the executive branch is in a situation, like the Sosa case itself, where a federal court has the jurisdiction to apply CIL as common law under the Alien Tort Statute? Putting aside immunity issues, why is the executive branch bound here but not in other circumstances? Is it because Congress has incorporated CIL through the Alien Tort Statute? Is that the same theory for why the President is bound by CIL in Hamdan v. Rumsfeld?
If so, there is a pretty thin line between CIL lurking as a purely international obligation unenforceable in U.S. courts and CIL as a binding federal law that can invalidate U.S. drug interdiction policies in Sosa and U.S. military commissions in Hamdan. All it took was for Congress to include the magic phrase “law of nations” or “law of war” in a federal statute.
Moreover, the President’s power to interpret CIL on the international plane, which seems necessary given that for the most part it only bind him on the international plane, is subject to judicial second-guessing via this background federal court activity. The President can claim, on the international plane, that he believes that certain CIL rules do not apply to Al-Qaeda. But a federal court, as long as it is granted jurisdiction over claims brought under the “law of nations”, can simply override this interpretation. Isn’t this as much of a separation of powers problem as a modern position CIL-as-federal-law theory would create?
These anomalies lead me to believe that the Sosa court left at least half open the question of whether CIL can be considered part of the “Law of the United States” in some circumstances. The fact that CIL can in some circumstances be applied freely in federal courts in ways that do bind the Executive Branch will tempt the Court to adopt a theory of constitutional incorporation in Article III or even as part of the “Laws” the President is bound “Take Care” of in Article II. I think this is wrong and a bad idea to boot, but that hasn’t stopped the Court before.
Ten years after publication of their first attack on the “modern position,” Professors Bradley and Goldsmith, now joined by Professor Moore, continue to undermine the strength of their argument by opposing exaggerated (and simplistic) categories – “the modern position” and the “revisionists.” Elsewhere, they acknowledge that the group they lump together as the modernists includes a range of views about the modern import of customary international law. One such view is amply supported by the Sosa decision: customary international law is a source of federal common law to be applied in appropriate cases. That is not to say that it is incorporated in toto into federal common law. But it does signify that it can be relied upon by the federal courts in a range of situations (some of which they identify in their article), that it is federal (not state) law, and that disputes about its interpretation raise federal questions. That said, I’m more interested at the moment in their interpretation of the impact of Sosa on the ongoing Alien Tort Statute litigation. Two points here: First, they conclude that Sosa is a rejection of much of Filartiga and its progeny only by misinterpreting those cases. The Filartiga line… Read more »
Opinio Juris Workshop on Sosa and Customary International Law:
Opinio Juris has launched an Online Workshop on “Sosa, Customary International Law, and the Continuing Relevance of Erie.” Thus far, it has con…
Why, exactly, is there anything strange about a statute that confers jurisdiction to hear claims based on “tort only, in violation of the law of nations” being interpreted as allowing the federal courts to look at the law of nations (including customary international law) as furnishing the rule of decision in cases brought pursuant to the jurisdictional grant?
Professor Ku expresses wonderment at the idea that when Congress says “law of nations” or “law of war” in a statute, that this means that the courts will have to determine what those concepts mean. I don’t see how that is even controversial.
One can, of course, argue what norms are included in the “law of nations”, and one can also argue what portions of the “law of nations” give rise to tort liability. One can even argue that nothing in the “law of nations” gives rise to tort liability, although that position trips on the notion that Congress must be presumed to have been doing SOMETHING when it enacted 28 U.S.C. § 1350.
But the contention that courts cannot look to international law when Congress tells them, specifically, to look to international law is nonsensical.