DSK Court Dodges Domestic Status of Customary International Law Question

by Julian Ku

As far as I can tell, the NY state court reached the right conclusion by rejecting former IMF Chief Dominique Strauss-Kahn’s claim for immunity under customary international law.  It is also worth noting that the Court wisely dodged the tricky question of whether and how customary international law would affect the state case. The Court noted that some scholars (e.g. Curtis Bradley and Jack Goldsmith) have the view that customary international law must be congressionally or constitutionally authorized in order to be applied in U.S. court, while others (e.g. Bill Dodge) see it as a general federal common law applicable in all cases.  It is worth noting that the Court does not read Sosa as necessarily resolving this question, and simply holds that a congressional statute would override any customary law anyway, which he found was the case here.

This seems like a sensible way to proceed, and the judge should get credit for not being wowed by the unusual customary law claim.  In theory, DSK could appeal to a federal court on the theory that customary international law creates a federal question.  But I doubt very much that would succeed, or even be tried.


2 Responses

  1. Response…
    Numerous federal and state court opinions since the dawn of the United States have continued to recognize that states are bound by customary international law, the customary law of nations.  See, e.g., Paust, Van Dyke, Malone, International Law and Litigation in the U.S. 579-81 (3 ed. 2009) (West, American Casebook Series); 14 U.C. Davis J. Int’l L. & Pol’y 205, 245-53 (2008).  All one needs to do is to turn on one’s computer and search Westlaw or Lexis instead of offering up supposed theories that have been completely unreal in terms of predominant expectations of the Founders and Framers and overwhelming trends in judicial decision (including Supreme Court opinions).

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