The Engagement of U.S. Courts with International Law

Abstract

This chapter addresses the engagement of U.S. courts with international law. It applies the analytic framework developed by the International Law Association Study Group and examines cases in which courts have engaged in various forms of avoidance, alignment, and contestation. U.S. courts routinely practice fair weather alignment and con-substantial alignment to harmonize domestic law with international law. In the past decade alone, U.S. courts have decided hundreds of cases involving fair weather alignment and thousands of cases involving con-substantial alignment. In contrast, cases involving overriding alignment or hyper-alignment are quite rare. In the decade after the Supreme Court decision in Breard v. Greene, cases implicating the Vienna Convention on Consular Relations (VCCR) yielded dozens, perhaps hundreds, of judicial decisions involving either affirmative or negatory contestation. Setting aside VCCR cases, though, judicial decisions involving affirmative or negatory contestation are relatively rare. Since Congress enacted the terrorism exception to the FSIA in 1996, federal courts have decided dozens of cases implicating the terrorism exception, many of which involve con-substantial contestation. Similarly, since enactment of the Torture Victim Protection Act (TVPA) in 1992, federal courts have decided a few hundred cases under that statute. Insofar as the TVPA imposes civil liability for torture committed by foreign government officials who might be entitled to immunity under international law, some of those cases also involve con-substantial contestation. Aside from these examples, though, decisions involving con-substantial contestation seldom arise. U.S. courts routinely engage in evasive avoidance by deciding cases without reference to international law, even though international law could potentially apply. In many cases, courts engage in evasive avoidance because the parties do not raise relevant international law arguments. When the parties do not invoke international law, courts are unlikely to do so on their own initiative. The failure of parties to present international law arguments is partially attributable to the fact that many U.S. lawyers are not familiar with international law. However, to some extent, evasive avoidance may also be a product of tactical decisions by litigants. In cases where international human rights norms are potentially applicable, human rights claimants may have a better chance of winning by focusing on domestic law arguments to the exclusion of international law arguments. US courts sometimes invoke non-self-execution (NSE) doctrine to justify a posture of affirmative avoidance. A prior empirical study, based on judicial decisions between 1970 and 2006, estimated that U.S. courts decided almost ninety percent of treaty cases without even mentioning NSE doctrine. Courts specifically held that treaties were non-self-executing in only about five or six percent of treaty cases. It is possible that lower courts have been applying NSE doctrine to support affirmative avoidance with greater frequency since the Supreme Court’s 2008 decision in Medellin v. Texas. However, available scholarly analysis is inconclusive in this respect. Aside from judicial decisions involving NSE doctrine, cases where courts practice affirmative avoidance are relatively rare.