Online Workshop Comment: Foreign Relations Law Revisionism in Retreat
What a difference ten years makes. Leaving aside for a moment the doctrinal analysis, there’s a striking contrast in tone in this article as compared to Curt and Jack’s pathbreaking 1997 piece on CIL and federal common law (also published in the Harvard Law Review, a pdf of which you can find here). That article betrayed a discernible hostility to international law largely absent from the more recent one. Prominently featured in 1997, for instance, was the spinning out of the “new CIL” as “purport[ing] to regulate many areas that were formerly of exclusive domestic concern.” That line has been dropped, as has the characterization of CIL (once a trope of revisionist scholarship) as “vague.” In the more recent piece, the only instrument deemed “vague” is the Constitution itself. Gone also are implications that the “world community” (emphasis in original) is some shadowy, alien entity seeking to undermine our democratic autonomy.
So I see the Sosa piece as, in effect, hoisting a white flag on the larger question of whether CIL and international law generally have a place in US law. (This development has been a long time in the making, as evidenced by Jack and Curt’s more recent work. This piece by Jack and Eric Posner even comes to concede that there is some good IL scholarship out there, moving away from earlier revisionist work dismissing IL writing as marginal, not rigorous, and advocacy-oriented.) Curt, Jack, and David even go so far here as to allow for a “robust role for CIL in the U.S. legal system.”
This is a wise move to a more defensible perimeter. Intervening events since the 1997 salvo have shown IL to be a formidable quantity, the imposition of which the US has not been able to resist. The Court itself has of course also shown a new willingness to accept the validity of international law, in the ATS and other contexts. While I think Curt, Jack and David are correct that as a formal matter, political authorization remains a requirement for the incorporation of IL, the courts are more inclined to find that authorization where previously they would have balked, Hamdan supplying the best example. As Julian points out here, political authorization may no longer present much of a bulwark against judicial incorporation. The Court seems to be operating on something less than the clear statement basis that Curt and Jack called for in the 1997 piece.
As for the future, I think it’s also important to highlight the evolutionary potential of Sosa itself. However important some level of original understanding is to Justice Souter’s opinion, it’s thoroughly translationist, adapting elements of the drafters’ intent to the contemporary context. There are human rights violations which may fail the Sosa test today that will pass it tomorrow. I imagine the aiding and abetting claims against corporations will sooner or later make the grade as IL itself comes to recognize corporate responsibility in a greater range of cases. So however much the decision exudes cautiousness with respect to ATS claims, it does very much leave the door ajar (by its own description), and I suspect that door will open further in years to come.