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75 Geo. Wash. L. Rev. 1 (2006-2007)
An Emerging Uniformity for International Law

handle is hein.journals/gwlr75 and id is 11 raw text is: An Emerging Uniformity for International Law David H. Moore* Abstract The status of international law in the U.S. legal system has been hotly con- tested. Most international law scholars maintain that customary international law (CIL) is federal common law immediately applicable in federal courts. A minority of scholars has responded that CIL may be applied by federal courts only when authorized by the political branches. The Supreme Court's decision in Sosa v. Alvarez-Machain, 542 U.S. 692 (2004), stoked the debate. In Sosa's wake, scholars have overwhelmingly concluded that the Supreme Court endorsed the majority view that CIL is federal common law. This Article asserts that Sosa has been both misperceived and underap- preciated. Sosa not only supports the minority position that federal judicial authority to incorporate CIL hinges on congressional intent, but Sosa also suggests that federal incorporation is governed by the same considerations that determine whether treaties are self-executing and immediately applicable in U.S. courts: namely, the intent of the political branches, specific definition, mutuality, practical consequences, foreign relations effects, and alternative means of enforcement. Sosa thus manifests the emergence of a uniform doc- trine that governs the federal status of both treaties and CIL. This emerging doctrine, which serves to police the distribution of lawmaking and foreign af- fairs authority between the judiciary and the political branches, has significant implications. It suggests that the reigning confusion over the domestic status of international law is being replaced with doctrinal clarity and coherence, reveals that the collective wisdom on the domestic status of international law is out of step with Supreme Court jurisprudence, results in more appropriate treatment of CIL relative to treaties, and indicates that efforts to incorporate international law as federal law should focus on the political branches, not the courts. Table of Contents Introduction .................................................... 2 I. Debate over the Status of International Law in Federal C ourts ........ .......................................... 4 II. Treaties in U .S. Courts .................................. 8 A. Intent of the Political Branches ..................... 11 * Associate Professor, University of Kentucky College of Law. I wish to thank Richard Ausness, Bill Dodge, Jack Goldsmith, Karen Mingst, Lori Ringhand, John Rogers, and Paul Salamanca for helpful feedback on this Article. This Article is dedicated to Matthew Burton Moore, who was born during its preparation. November 2006 Vol. 75 No. 1

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