I would focus on other differences between customary international law and federal common law that I think make it unnecessary for students to draw connections between them. -- There may be pedagogical value in drawing the connection, but it is not misleading not to draw them.
1) The President can order a violation of customary international law that is binding on U.S. courts. The Executive cannot issue an order that a principle of federal common law be ignored. 2) Customary international law exists independently of U.S. courts. Unlike federal common law, U.S. courts must go through the process of looking at the practices of other nations to determine if a rule has emerged. Unlike federal common law, where there is unlimited interpretive discretion within the limits of stare decisis and the scope of a subject matter preempted, customary international law binds a U.S. court. There are many clearly established customary international law principles that it is outside the power of U.S. courts to modify. 3) Customary international law gets interpreted by both State and Federal courts, with State courts no more or less obligated to look at federal precedents than they are for the interpretation of federal statutes. Certain areas of federal common law require what is essentially a reverse Erie analysis. There is no question that one can have a rich discussion in an advanced course about the relationship between federal common law and customary international law, but given that they are different animals, they can be taught independently as well. Jonathan Miller Southwestern University School of Law > 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 > --------------------------------------------- This message was sent using Endymion MailMan. http://www.endymion.com/products/mailman/
