Bench Memos

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Mistaken Defense of Koh on CIL as Federal Common Law


The fellow calling himself “publius” has a long post that takes issue with my post on Harold Koh and customary international law as federal common law.  Unfortunately, “publius” gets his two main points wrong (as well as lesser points that I will ignore).

First, “publius” posits a distinction between what he calls “Version #1” and “Version #2” of common law.  Version #1, he claims, is a “wholly independent binding law floating out in space” that “publius” thinks that legislatures couldn’t supersede.  Version #2 “recognizes the supremacy of positive law (e.g., statutes, regulations), but allows courts to serve as a [sic] ‘gap fillers’ where statutes are ambiguous.” 

This account is badly confused.  For starters, it has always been recognized that legislation can supersede common law.  More to the point of the debate over customary international law as federal common law, there is nothing about customary international law that limits it to gap-filling.  Further, under Koh’s view of customary international law as federal common law, customary international law would trump pre-existing provisions of state constitutions and statutes.  It would, as a logical matter, also trump prior-enacted federal statutes as well.  (Congress, but not the states, would then have the power to supplant the rules of customary international law.)

Second, “publius” asserts (underlining added, footnote call omitted): 

Moving on to the allocation of power point, remember that gaps have to be filled by someone.  For instance, let’s say that no law speaks to the issue of consular immunity. Someone has to decide whether these officials are immune (and under what circumstances) if there’s no clear answer anywhere else in the positive law.  Koh is saying that he wants federal law to govern this issue, and to be informed by international custom.  Bradley and Goldsmith, by contrast, want these issues decided by state common law.

No.  Koh wants federal judges to decide these issues.  Bradley and Goldsmith believe that “the federal political branches”—Congress and the president—alone have the authority to decide what rules of customary international law become federal law (and that “the appropriate state entity”—the state legislature or the state courts—can decide the effect of customary international law under state law).  In response to the bizarre title of Koh’s response to them—“Is International Law Really State Law?,” 111 Harv. L. Rev. 1824 (1998)—Bradley and Goldsmith explain on the first page of their reply what should be evident to anyone who read their article:  “we have not in fact argued that CIL is state law.”  (“Federal Courts and the Incorporation of International Law,” 111 Harv. L. Rev. 2260 (1998).)

I’m pleased to see that “publius” promises to “correct anything [he] get[s] wrong.”  But there’ll be nothing left of his post once he corrects his errors.

Tags: Whelan


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