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The Law of Nations and the United States Constitution$
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Anthony J. Bellia Jr. and Bradford R. Clark

Print publication date: 2017

Print ISBN-13: 9780199841257

Published to Oxford Scholarship Online: April 2017

DOI: 10.1093/acprof:oso/9780199841257.001.0001

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The Inadequacy of Existing Theories of Customary International Law and the Constitution

The Inadequacy of Existing Theories of Customary International Law and the Constitution

Chapter:
(p.149) 7 The Inadequacy of Existing Theories of Customary International Law and the Constitution
Source:
The Law of Nations and the United States Constitution
Author(s):

Anthony J. Bellia

Bradford R. Clark

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199841257.003.0007

This chapter discusses three theories regarding the status of customary international law in U.S. courts, and explains why none provides a complete or accurate account of how such law interacts with the Constitution. Proponents of the “modern position” advocate that U.S. courts should apply all rules of customary international law as federal law. Proponents of the “revisionist position” advocate that U.S. courts should not apply any rule of customary international law unless the political branches or a U.S. state has affirmatively adopted it as federal or state law. Proponents of an “intermediate position” advocate judicial application of customary international law as non-binding general law. These positions fail because each seeks to apply a one-size-fits-all approach to the status of customary international law in U.S. courts. In practice, the status of such law in U.S. courts has always depended on the kind of rule involved and its precise application.

Keywords:   customary international law, modern position, revisionist position, intermediate position, Constitution, arising under, ATS, Sosa, Kiobel

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