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The “Unsatisfactory Condition” of Customary International Law in the United States

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Chapter Summary

This chapter reviews the contemporary debate over the proper status of Customary International Law (CIL) in the U.S. legal system. Scholars and judges today disagree sharply over whether CIL is part of federal or state law, its relationship with federal statutory law, and its impact on the duties and powers of the U.S. President. Courts in the United States have a long history of using CIL as a rule of decision, although such cases were neither frequent nor significant. The text of the U.S. Constitution provides little guidance for determining the domestic status of CIL. Both federal and state courts in the United States have long applied CIL as a rule of decision in certain cases involving questions such as diplomatic immunity and the law of war. Leading judicial decisions applying CIL similarly looked to the common law as the basis for applying CIL rules.

Keywords: contemporary debate; Customary International Law (CIL); diplomatic immunity; federal statutory law

10.1163/ej.9789004165717.i-912.70
/content/books/10.1163/ej.9789004165717.i-912.70
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