The Federal Common Law of Nations by Anthony J. Bellia Jr. & Bradford R. Clark
Courts and scholars have vigorously debated the proper role of customary international law in American courts: To what extent should it be considered federal common law, state law, or general law? The debate has reached something of an impasse, in part because various positions rely on, but also are in tension with, historical practice and constitutional structure. This Article describes the role that the law of nations actually has played throughout American history. In keeping with the original constitutional design, federal courts for much of that history enforced certain rules respecting other nations’ “perfect rights” (or close analogues) under the law of nations as an incident of political branch recognition of foreign nations, and in order to restrain the judiciary and the states from giving other nations just cause for war against the United States. Rather than viewing enforcement of the law of nations as an Article III power to fashion federal common law, federal courts have instead applied rules derived from the law of nations as a way to implement the political branches’ Article I and Article II powers to recognize foreign nations, conduct foreign relations, and decide momentous questions of war and peace. This allocation of powers approach best explains the most important federal cases involving the law of nations across American history. This Article does not attempt to settle all questions of how customary international law interacts with the federal system. It does aspire, however, to recover largely forgotten historical and structural context crucial to any proper resolution of such questions.
Historical Practice and the Contemporary Debate Over Customary International Law by Ernest A. Young
A.J. Bellia and Brad Clark have performed a valuable service for other scholars interested in foreign relations law and federal jurisdiction by collecting and illuminating—with their usual care and insight—the historical practice of both English and early American courts with respect to the law of nations. Their recent Article, The Federal Common Law of Nations, demonstrates that, while American courts have not generally treated customary international law (CIL) as supreme federal law, they have applied such law where necessary to vindicate the "perfect rights" of foreign nations. In so doing, American courts have protected the prerogatives of the political branches to "recognize foreign nations, conduct foreign relations, and decide momentous questions of war and peace." Although Professors Bellia and Clark disavow any attempt "to settle all questions of how customary international law interacts with the federal system," they do suggest that their approach represents a middle ground between proponents of the "modern position" that CIL simply is federal common law and critics of that position, who insist that CIL may be applied by American courts only where it is incorporated into the domestic legal system through an affirmative act by the political branches.
This response makes three points. First, I quibble with the historical account offered by Professors Bellia and Clark on two minor, yet at least somewhat significant, grounds: The debate over reception of the common law at the federal Constitutional Convention shows greater early skepticism about judge-made common law than Bellia and Clark suggest; also, the jurisdictional provisions of Article III covering cases implicating foreign affairs were not intended fully to centralize power over such cases in federal courts because they left concurrent jurisdiction in the state courts. Second, I question the extent to which the Founding Era history is directly relevant to contemporary debates about how to treat CIL. Finally, I contend that what does the real work in the Bellia and Clark approach is simply constitutionally-grounded concerns about the separation of powers in foreign affairs cases, not anything about CIL per se. Their position thus reduces to the largely uncontroversial claim that federal courts may make federal common law to protect these constitutionally-grounded federal interests, and they may sometimes draw the content of federal common law from international law.