The Case for Writing International Law into the U.S. Code

INTRODUCTIONThe overwhelming majority of international law is today-and has long been-enforced in national courts. 1 In the United States, courts are regularly called upon to give effect to treaties relating to the liability of air carriers, the enforceability of international sales contracts, and the protection of intellectual property, among other areas. 2 These courts also occasionally hear cases involving the application of customary international law.3 Over the past few decades, however, the judiciary has taken steps to limit the direct role played by international law in the U.S. legal system.4 In a number of recent decisions, the U.S. Supreme Court has evinced what one commentator describes as a "visceral resistance to treating modern international law in both treaty and customary form as law of the United States."5 Similarly, the federal courts of appeal have exhibited a marked reluctance to give direct effect to customary international law or treaties to which the United States has long been a party.6This persistent judicial reluctance to directly enforce international law rules is normatively undesirable for two reasons. First, if U.S. courts consistently decline to give effect to international law, litigants will often lack any forum in which to bring claims sounding in international law because individuals rarely have standing to appear before international tribunals.7 Viewed from a litigant's perspective, therefore, the recent judicial retreat from international law raises the possibility that that law will confer a right for which there exists no remedy.8 Second, if U.S. courts consistently decline to give effect to international law, they will lose their ability to influence the development of that law. Viewed from the perspective of the United States, therefore, the recent judicial retreat from international law raises the possibility that that law will increasingly be shaped by foreign courts and tribunals whose long-term interests may not be consistent with those of the United States.9This Article aims to explain this judicial retreat from international law and to identify ways by which it may be reversed. To this end, it first seeks to understand precisely why U.S. courts are often reluctant to give effect to that law. It argues that this reluctance stems from two primary causes.10 First, a not-insignificant number of U.S. judges have expressed some degree of ambivalence-occasionally rising to the level of hostility-towards the very concept of international law.11 The Article refers to this cause as "judi7 cial attitudes." Second, a significant portion of the U.S. judiciary has had little exposure to or training in international law and international legal methods.12 The Article refers to this cause as "judicial inexperience." The combined effect of these two causes, the Article suggests, is a judiciary that is extremely reluctant to rely directly on international law to provide a rule of decision in all but the least controversial cases.In the past, those who favor a more expansive role for international law in U.S. courts have sought to address these attitudinal and experiential obstacles via direct appeals to the U.S. judiciary.13 They have urged U.S. courts to scale back-or cast aside altogether-the various doctrinal rules that limit the ability of individuals to invoke international law directly in domestic litigation. 14 They have encouraged U.S. judges to familiarize themselves with international law norms in the hope that greater familiarity will lead to the more frequent application of these norms. 15 And they have called for better education and training of U.S. judges with respect to international law.16 As yet, however, few of these arguments have had a significant impact on judicial practice. Indeed, the available evidence suggests that the U.S. judiciary has actually become less receptive to claims sounding directly in international law in recent years. 17 The ironic culmination of decades of legal scholarship urging U. …