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Customary International Law in State Courts



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Customary International Law in State Courts Julian G Ku TABLE O F CON T ENTS I Introduction II The Founders and Customary International Law 271 A The Problem with State Courts 272 B The Text of the Constitution 273 C Congress and the Judiciary Act of 1789 278 D The President and the Law of Nations 281 E The Courts 286 1 Neutrality Cases 286 2 Diplomat Cases 288 F Summary 290 State Courts and the Development of Customary International Law 291 A Immunity for Ambassadors and Public Ministers in Transit 292 Irregular Abduction of Overseas Fugitives The Ker B III C Doctrine Foreign Sovereign Immunity 1 Marshall and Foreign Sovereign Immunity 2 Restrictive Theory of Foreign Sovereign Immunity 3 Mexico Default Cases 4 Waiver 5 Effect of Recognition 266 299 307 308 310 313 315 318 Associate Debevoise Plimpton New York Olin Fellow 1999 2000 University of Virginia School of Law J D 1998 Yale Law School I am grateful to the following individuals for their helpful comments on earlier drafts of this article Lillian Bevier Curtis Bradley G Edward White Paul Stephan John Setear and members of the Legal Theory Workshop at the University of Virginia School of Law All mistakes and omissions of course remain my own VIRGINIA JOURNAL OF INTERNATIONAL LAW D IV V Vol 42 1 6 The Rise of Executive Lawmaking 321 Prohibition on Intercourse with Enemy Aliens 322 1 War of 1812 323 2 Civil War 325 3 Real Property 327 4 Life Insurance 328 E Summary 332 Implications for the Modem Understandings of the Status of CIL 333 A Original Intent 334 B Historical Role of State Courts 335 C Practical Necessity of a Federal Court Monopoly 336 Conclusion 337 I INTRODUCTION International law is part of our law and must be ascertained and administered by the courts of justice of appropriate jurisdiction I Over the past few years legal scholars have fiercely debated the meaning of this and other statements about the proper status of customary international law in the American legal system While a majority of



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