Prof. Young writes: "The argument for customary international law as it is most often made is that it has the same status as federal common law, and it is similar in form as well as it comes from the courts rather than the legislature. All of the general separation of powers, federalism, and democratic concerns with federal common law are very similar for customary international law. Perhaps the authority for it can be rationalized in terms of executive acquiescence, but as a practical matter, applied in human rights litigation for example, it is law divined by courts."
COMMENT: I am a little puzzled by your statement that customary international law as a practical matter is law divined by courts in, e.g., in human rights litigation. Most of the international human rights litigation (both in U.S. and international courts) of which I am aware uses multilateral human rights treaties that were not established by domestic or international courts. These treaties were adopted/ratified by representatives of the nation-state. In fact, I am having trouble thinking of many cases that strictly used CUSTOMARY international human rights law because there just wasn't much out there until treaties started to articulate them. Prof. Young continues: "Moreover, the jurisprudence at the origins of debates over federal common law -- the law merchant of Swift v Tyson -- _was_ customary international law. So both as a matter of substance and of pedagogy, I think the questions ought to be linked. And whether or not you agree on the merits, the question just _are_ linked in the literature debating this issue." COMMENT: I agree with you as to the fact that federal common law has been linked to customary international law in the literature. Francisco Forrest Martin
