The Case for Writing International Law into the U.S. Code

Abstract

In recent years, the U.S. judiciary has taken steps to limit the role played by international law in the U.S. legal system. This Article seeks to explain this retreat and to identify ways by which it may be reversed. It argues first that the present judicial retreat from international law is attributable to two causes: judicial attitudes and judicial inexperience. Many judges have ex-pressed some degree of ambivalence — occasionally rising to the level of hostility — about relying upon international law to provide a rule of decision. At the same time, many judges are largely unfamiliar with an ever-expanding array of international legal sources and methods. This Article contends that the end result of this combination of attitudes and inexperience is a pronounced reluctance among U.S. judges to give direct effect to certain types of international law. To date, many international legal scholars have responded to these developments by attempting to persuade the judiciary to rethink its basic approach to international law. This Article argues that a more promising approach would be to seek to persuade the other two branches of the federal government to enact domestic statutes that incorporate various international law rules. These statutory enactments would, among other things, enable the courts to ignore many of the doctrinal impediments that currently make it difficult for individuals to rely directly on international law as a source of rights. They would have a positive impact on the attitudes of skeptical judges. And they would help to alleviate the problem of judicial inexperience. With these goals in mind, the Article offers a number of practical suggestions as to how to draft statutes that incorporate international law so as to maximize the likelihood that such statutes — and the international law rules incorporated there-in — will be given their full effect by U.S. courts.

Keywords: international law in domestic courts; incorporative statutes; Kiobel; Medellin; Sosa

JEL Classification: K33