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University of North Carolina-Chapel hill School of law Public Law Legal Theory Research Paper no 02-16 NDEL AMERICAN JUDGES AND INTERNATIONAL LAW A Mark Weisburd Working paper, to be submitted for publication(2002) Fullindexofresearchpapersavailableat_http://www.lawuncedu/faculty/researchpapers/ Visit unc School of law at wwwlaw uncedu http:/ssrn.com/abstractid=338440 CAROLINA

University of North Carolina – Chapel Hill School of Law Public Law & Legal Theory Research Paper No. 02-16 AMERICAN JUDGES AND INTERNATIONAL LAW A. Mark Weisburd Working paper, to be submitted for publication (2002). Full index of research papers available at http://www.law.unc.edu/faculty/researchpapers/. Visit UNC School of Law at www.law.unc.edu. http://ssrn.com/abstract_id=338440

AMERICAN JUDGES AND INTERNATIONAL LAW Introduction I. The Nature of Customary International Law II. The Traditional American Approach to Customary International Law IlL. Current American Approaches to Determining the Content of Customary International law A. The Concept of Jus Cogens B. The Courts of Appeals and Jus Cogens C. Critique of the Jus Cogens Decisions of the Courts of Appeal 1. Articles Basing Legal Rules on Sources Other than State Practice.. 40 2. The restatement 3. Decisions of American Courts 4. Decisions of International Courts IV. A Suggested Alternative V. Concl

AMERICAN JUDGES AND INTERNATIONAL LAW Introduction ............................................................1 I. The Nature of Customary International Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 II. The Traditional American Approach to Customary International Law . . . . . . . . . . . 12 III. Current American Approaches to Determining the Content of Customary International Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 A. The Concept of Jus Cogens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 B. The Courts of Appeals and Jus Cogens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 C. Critique of the Jus Cogens Decisions of the Courts of Appeals . . . . . . . . . . 34 1. Articles Basing Legal Rules on Sources Other than State Practice . . 40 2. The Restatement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 3. Decisions of American Courts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 4. Decisions of International Courts . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 IV. A Suggested Alternative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72 V. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74

AMERICAN JUDGES AND INTERNATIONAL LAW A Mark Weisburd Introduction More and more frequently, American courts find themselves dealing with cases that raise ssues under public international law. These cases may involve claims against foreign governments,claims based on acts by foreign individuals, or claims against corporations alleged to have cooperated with foreign governments. While such claims may depend international law( CIL). And claims so based raise a probley y ey also rely on customary substantively on treaties or on federal statutes, very frequently they also rely on customary acknowledges the support of the North Carolina Law Foundation for this papr. F Professor of Law, University of North Carolina at Chapel Hill. The author gratefully E. g, Siderman de blake v Repub. of Argentina, 965 F 2d 699(9th Cir 1992) E. g, Hilao v. Estate of Marcos, 103 F 3d 767(9 Cir. 1996) E. g, Doe v Unocal Corp, 110 F Supp 2d 1294( C D. Cal. 2000) Actually, they raise a whole host of problems. Perhaps the most basic is, what is the place of customary international law in American law? While there is considerable judicial and scholarly authority for the proposition that customary international law is part of the law of the United States" as that phrase is used in Article Ill of the Constitution, see Filartiga v. Pena-Irala 630 F2d 876, 886-87 (2d Cir. 1980); In re Estate of Marcos Human Rights Litigation, 978 F2d 493, 502(9th Cir. 1992), cert. denied sub nom. Marcos-Manotoc v. Trajano, 508 U.S. 972(1993) Harold H. Koh, Is International Law Really State Law?, 111 HARv. L REv. 1824(1998): Gerald L Neuman, Sense and Nonsense About Customary International Law: A Response to Professors Bradley and Goldsmith, 66 FORDHAM L REV. 371(1997); Beth Stephens, The Law of Our Land Customary International Law as Federal Law after Erie, 66 FORDHAM L. REV. 393(1997),a number of writers have challenged this position, see Ernest A. Young, Sorting Out the debate Over Customary International Law, 42 VA J INT'L L 365, 462-63(2002); Daniel J. Meltzer Customary International Law, Foreign Affairs, and Federal Common Law, 42 VA J INT'L L 513, 519(2002); Curtis A. Bradley Jack L. Goldsmith, Customary International Law as Federal Common Law: A Critique of the Modern Position, 110 HARV. L REv. 815(1997): AM Weisburd, State Courts, Federal Courts and International Cases, 20 YALE J INT'L L 1(1995) Arthur M. Weisburd. The Executive Branch and International Law. 41 VAND L REV. 1205

1 * Professor of Law, University of North Carolina at Chapel Hill. The author gratefully acknowledges the support of the North Carolina Law Foundation for this paper. 1 E.g., Siderman de Blake v. Repub. of Argentina, 965 F.2d 699 (9th Cir. 1992) 2 E.g., Hilao v. Estate of Marcos, 103 F.3d 767 (9th Cir. 1996). 3 E.g., Doe v. Unocal Corp., 110 F.Supp.2d 1294 (C.D. Cal. 2000). 4 Actually, they raise a whole host of problems. Perhaps the most basic is, what is the place of customary international law in American law? While there is considerable judicial and scholarly authority for the proposition that customary international law is part of “the law of the United States” as that phrase is used in Article III of the Constitution, see Filartiga v. Pena-Irala, 630 F.2d 876, 886-87 (2d Cir. 1980); In re Estate of Marcos Human Rights Litigation, 978 F.2d 493, 502 (9th Cir. 1992), cert. denied sub nom. Marcos-Manotoc v. Trajano, 508 U.S. 972 (1993); Harold H. Koh, Is International Law Really State Law?, 111 HARV. L. REV. 1824 (1998); Gerald L. Neuman, Sense and Nonsense About Customary International Law: A Response to Professors Bradley and Goldsmith, 66 FORDHAM L. REV. 371 (1997); Beth Stephens, The Law of Our Land: Customary International Law as Federal Law after Erie, 66 FORDHAM L. REV. 393 (1997), a number of writers have challenged this position, see Ernest A. Young, Sorting Out the Debate Over Customary International Law, 42 VA. J. INT’L L. 365, 462-63 (2002); Daniel J. Meltzer, Customary International Law, Foreign Affairs, and Federal Common Law, 42 VA. J. INT’L L. 513, 519 (2002); Curtis A. Bradley & Jack L. Goldsmith, Customary International Law as Federal Common Law: A Critique of the Modern Position, 110 HARV. L. REV. 815 (1997); A.M. Weisburd, State Courts, Federal Courts and International Cases, 20 YALE J. INT’L L. 1 (1995); Arthur M. Weisburd, The Executive Branch and International Law, 41 VAND. L. REV. 1205 AMERICAN JUDGES AND INTERNATIONAL LAW A. Mark Weisburd* Introduction More and more frequently, American courts find themselves dealing with cases that raise issues under public international law. These cases may involve claims against foreign governments,1 claims based on acts by foreign individuals,2 or claims against corporations alleged to have cooperated with foreign governments.3 While such claims may depend substantively on treaties or on federal statutes, very frequently they also rely on customary international law (CIL). And claims so based raise a problem.4

2 To understand the difficulty it is helpful to start with the concept of CIL. The Restatement(Third)of Foreign Relations Law("Restatement")describes customary international law as resulting"from a general and consistent practice of states followed by them from a sense of legal obligation. [In this article, the term"state "will be applied in the sense in which it is normally employed in international law, that is, as referring to independent countries. I Although this article will take issue with a number of assertions made in the restatement this definition raises little controversy. It does, however, illustrate the considerable difficulty facing a court forced to address an issue of cil. how does the court determine at the most basic level what the various governments of the world have done regarding a particular matter? What counts as "practice"? How does one determine whether a practice is"general"? Federal courts have sought to escape this morass by relying primarily on academic writings, the Restatement, and decisions by american and international courts -and herein lies the difficulty. For, with respect to some areas of CIL- particularly the law of human rights, the aspect of CIL most frequently considered in American courts-neither modern academic writing nor the Restatement nor most judicial decisions purport to derive CIl from evidence of what governments actually do. Rather, they rely on other academic writings, other decisions of international courts, non-binding resolutions of international bodies, and hazy notions of natural law to justify their assertions regarding this cil (1988); PhillipR. Trimble, A Revisionist View of customary International Law, 3 UCLAL REV 665(1986), and at least one court has taken note of the controversy, Sampson v. Fed. Repub. of Germany Claims Conf, 250 F 3d 1145, 1153 n 4 (7th Cir. 2001). In any event, this dispute does not bear on the matters discussed in this article and is therefore not addressed RESTATEMENT (THIRD)OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES S 102(2)(1987)(hereafter cited as RESTATEMENT

2 (1988); Phillip R. Trimble, A Revisionist View of Customary International Law, 3 UCLA L. REV. 665 (1986), and at least one court has taken note of the controversy, Sampson v. Fed. Repub. of Germany & Claims Conf., 250 F.3d 1145, 1153 n.4 (7th Cir. 2001). In any event, this dispute does not bear on the matters discussed in this article, and is therefore not addressed. 5 RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES § 102(2) (1987) (hereafter cited as RESTATEMENT). To understand the difficulty it is helpful to start with the concept of CIL. The Restatement (Third) of Foreign Relations Law (“Restatement”) describes customary international law as resulting “from a general and consistent practice of states followed by them from a sense of legal obligation.”5 [In this article, the term “state” will be applied in the sense in which it is normally employed in international law, that is, as referring to independent countries.] Although this article will take issue with a number of assertions made in the Restatement, this definition raises little controversy. It does, however, illustrate the considerable difficulty facing a court forced to address an issue of CIL. How does the court determine, at the most basic level, what the various governments of the world have done regarding a particular matter? What counts as “practice”? How does one determine whether a practice is “general”? Federal courts have sought to escape this morass by relying primarily on academic writings, the Restatement, and decisions by American and international courts - and herein lies the difficulty. For, with respect to some areas of CIL - particularly the law of human rights, the aspect of CIL most frequently considered in American courts - neither modern academic writing nor the Restatement nor most judicial decisions purport to derive CIL from evidence of what governments actually do. Rather, they rely on other academic writings, other decisions of international courts, non-binding resolutions of international bodies, and hazy notions of natural law to justify their assertions regarding this CIL

This article will seek to demonstrate that the approach the American courts have taken to determining the content of international law is fundamentally flawed. It leads courts to treat as law norms whose legal basis is either more circumscribed than the courts assert or in some cases, non-existent. More fundamentally, it essentially converts law professors into philosophe kings, imposing their ideas of what the law should be under the guise of describing the laws content The discussion which follows will first explain just how strange CIL is when viewed from the perspective of the American legal system, and discuss as well the difficulties of determining the content of CIL. The article will then describe the traditional approach taken by American courts to deal with these difficulties. It will illustrate the contemporary approach to such matters by discussing the treatment of the concept of jus cogens by the federal courts of appeals. As will be shown, these courts have relied on doubtful authorities when forced to deal with this concept, and some doubtful results have, not surprisingly, followed. The final substantive section will suggest an alternative approach for the element of customary international law most frequently before American courts, that is, international human rights law I. The Nature of Customary International Law The more a lawyer trained in American law reflects on the concept of CIL, the more peculiar that concept appears. Cil differs from domestic law in a number of important respects First, in the Cil system, there is no sovereign with authority to control the actions of the independent states who are the subjects of the law, while states are free to subordinate themselves to such an authority, they have rarely done so. Likewise, there is no court with compulsory jurisdiction over states. Instead of proceeding from a sovereign, the law which

3 This article will seek to demonstrate that the approach the American courts have taken to determining the content of international law is fundamentally flawed. It leads courts to treat as law norms whose legal basis is either more circumscribed than the courts assert or, in some cases, non-existent. More fundamentally, it essentially converts law professors into philosopher kings, imposing their ideas of what the law should be under the guise of describing the law’s content. The discussion which follows will first explain just how strange CIL is when viewed from the perspective of the American legal system, and discuss as well the difficulties of determining the content of CIL. The article will then describe the traditional approach taken by American courts to deal with these difficulties. It will illustrate the contemporary approach to such matters by discussing the treatment of the concept of jus cogens by the federal courts of appeals. As will be shown, these courts have relied on doubtful authorities when forced to deal with this concept, and some doubtful results have, not surprisingly, followed. The final substantive section will suggest an alternative approach for the element of customary international law most frequently before American courts, that is, international human rights law. I. The Nature of Customary International Law The more a lawyer trained in American law reflects on the concept of CIL, the more peculiar that concept appears. CIL differs from domestic law in a number of important respects. First, in the CIL system, there is no sovereign with authority to control the actions of the independent states who are the subjects of the law; while states are free to subordinate themselves to such an authority, they have rarely done so. Likewise, there is no court with compulsory jurisdiction over states. Instead of proceeding from a sovereign, the law which