When Customary International Law Violations Arise Under the Laws of the United States

For years, scholars have been vigorously debating the precise role of customary international law within our federal legal system, including whether such is federal common law and whether claims for violation of customary international law arise under the “Laws of the United States” for purposes of both Article III and general federal questions jurisdiction, found at 28 U.S.C. § 1331. This question also remains unresolved by the U.S. Supreme Court. Yet, it is a question that is timely, given the increasing number of non-citizens and citizens alike that bring claims for violations of customary international law in U.S. court. In this Article, I conclude that common law claims for violations of customary international law arise under the “laws of the United States” for general federal question jurisdiction and within Article III, but only where such claims or defenses to them implicate uniquely federal interests, such as foreign relations. I do not take this position because the law of nations itself is, or historically was, part of the “laws of the United States” for Article III and 1331 purposes; in fact, the law of nations probably was not considered to be the “law of the United States” per se when each was enacted. Rather, I take this position for two other reasons. First, certain enclaves of federal common law have developed over time to include certain norms and rules of customary international law – i.e., those that affect uniquely federal interests such as foreign relations – and federal courts have the judicial authority to continue to develop such law when uniquely national interests are at stake. Second, federal common law has evolved to become “law of the United States” for purposes of both Article III and 28 U.S.C. §1331.