Professor Curt Bradley on the new edition of his book: “International Law in the U.S. Legal System”

I am extremely pleased that Professor Curt Bradley, formerly of Duke Law and now at the University of Chicago Law School, very kindly accepted my invitation to tell us about the new edition of his book, “International Law and the U.S. Legal System.”

The interplay between U.S. domestic law and international law is extraordinarily important these days, yet often misunderstood.  Consequently, getting the latest views of one of the nation’s very top experts is simply invaluable for scholars, practitioners, and the general public (including those in the Fourth Estate!).  The book will be a key reference in my National Security Law course this coming fall. 

Here’s Curt:

International Law in the U.S. Legal System

Curtis A. Bradley

The United States is a party to thousands of international agreements and accepts as binding many customary international law rules that exist independently of such agreements. The interaction of this international law with the U.S. legal system, however, raises a host of difficult legal questions.

I address these questions in the latest edition of my book, “International Law in the U.S. Legal System.” Drawing on more than thirty years of teaching and writing about this subject, the book attempts to clarify how the United States interacts with international law and applies it domestically.

A central theme of the book is that the Constitution provides only a partial framework. Understanding the role of international law in the United States therefore requires attention not only to constitutional text but also to legislation, judicial doctrine, and historical practice.

Treaties and the Constitution

As the book explains, the text of the Constitution provides relatively little guidance for resolving modern issues concerning the role of international law in the U.S. legal system. In part, this is because the Constitution is over 200 years old, and both international law and the United States’ place in the world have changed significantly during that period.

The Constitution makes treaties part of the supreme law of the land, but the Supreme Court has held that treaties are directly enforceable in court only if they are “self-executing,” and under modern doctrine many treaties do not have that status. A further complication is that most international agreements concluded by the United States today are done as “executive agreements” rather than treaties, and the Constitution makes no mention of such agreements.

Another constitutional omission concerns how the United States gets out of treaty commitments. The Constitution specifies how the United States is to conclude treaties (by the President, with the advice and consent of two-thirds of the Senate), but it says nothing about terminating or withdrawing from treaties. That issue has instead been worked out through historical practice, as I documented in another book.

Customary International Law

A second major form of international law—customary international law—arises from the practices of nations followed out of a sense of legal obligation. This type of international law was referred to at the Founding as part of the “law of nations.” Although the Constitution gives Congress the power to define and punish offenses against this law, it is otherwise silent about its domestic status.

Despite this constitutional silence, courts in the nineteenth and early twentieth centuries described the law of nations as automatically forming part of U.S. law. But they made that observation during a time when U.S. common law was understood quite differently than it is today. In particular, courts treated the law of nations as having the status of “general common law”—a type of law that the Supreme Court purported to abolish in its famous 1938 decision Erie Railroad v. Tompkins.

The domestic status of customary international law since that time has been a matter of great academic debate and is still not resolved. The answer to that question is potentially relevant to international law issues that arise in U.S. courts for which there is no governing treaty—the immunity of foreign heads of state and other officials, for example.

The Alien Tort Statute

For these and other reasons, the application of international law in the U.S. legal system is context-dependent and heavily affected by judicial doctrine and legal history. Some of these complications have been evident in litigation under the Alien Tort Statute (ATS).

The ATS is a once-obscure statute dating back to the Founding that became the fount of international human rights litigation in U.S. courts. The statute provides, without elaboration, that the federal district courts have jurisdiction to hear claims by aliens for torts that violate the law of nations. Because of its reference to the law of nations, the ATS became a key vehicle in recent decades for advancing claims based on customary international law.

In a series of decisions, the Supreme Court has sharply limited ATS litigation. It did so most recently in a decision from this past Term—Cisco Systems, Inc. v. Doe, which involved a suit by members of the Falun Gong alleging that Cisco had aided and abetted repression of members of that religious group by China. In disallowing the suit, the Court required that Congress provide more express authorization for human rights claims.

Broader Implications

In imposing limits on ATS litigation, as well as in other contexts addressed in the book, the Supreme Court has invoked modern constitutional principles relating to how judicial power is exercised in the U.S. constitutional system. The result is that the application of international law in the U.S. legal system often requires affirmative incorporation by the political branches of the government.

None of this means that international law is unimportant in the United States. Despite the self-execution limitation, some treaties continue to be judicially enforceable. Moreover, Congress has directly incorporated international law into a number of statutes, such as the War Crimes Act and the Torture Victim Protection Act. International law also plays an important role in how federal law is interpreted.

To be sure, the international legal system has seen some unraveling in recent years, and the United States has contributed to that phenomenon. But in this age of globalization, it is difficult for any country, including the United States, to thrive without international cooperation, and international law helps promote that cooperation.

There is every reason to think that, whatever one may think of our current political moment, international law will continue to play an important role in the U.S. legal system going forward.

Latest Edition of the Book

It has been about five years since the publication of the prior edition of the book, and a lot has happened in the world, and in the United States, during this period. The book addresses these recent developments. It also explains, however, that the general rules governing international law’s role in the U.S. legal system have remained relatively stable in this period, both inside and outside the courts.

That said, the Supreme Court continues to address new issues relating to international law, and the practices of the political branches also continue to evolve, so one should expect to see further developments.

The cover of the book reproduces Benjamin West’s unfinished painting of the signing of the Treaty of Paris that ended the Revolutionary War. I chose it because it captures something fundamental about this subject area: although the basic legal framework is longstanding, many important questions remain unresolved. As the final sentence of the book observes, “Just as the painting is unfinished, so too is the law in this area.”

My hope in this edition, as in the prior editions, is to have explained as clearly as possible how the law operates in this area, and where (and why) there are continuing points of debate.

About the Author

Curtis Bradley is the Allen M. Singer Distinguished Service Professor at the University of Chicago Law School. He is the author of numerous articles and several books relating to U.S. foreign relations law. He has served as Counselor on International Law in the Legal Adviser’s Office of the U.S. State Department, a Reporter for the American Law Institute’s Restatement (Fourth) of U.S. Foreign Relations Law, and a co-Editor-in-Chief of the American Journal of International Law.

The views expressed by guest authors do not necessarily reflect my views or those of the Center on Law, Ethics and National Security, or Duke University. (See also here).

Remember what we like to say on Lawfire^®: gather the facts, examine the law, evaluate the arguments – and then decide for yourself!