United States

Paul R. Dubinsky

in International Law and Domestic Legal Systems

Published in print September 2011 | ISBN: 9780199694907
Published online January 2012 | e-ISBN: 9780191731914 | DOI:
United States

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The status of international law in the US legal system, at this point in time, is a moving picture. So much of importance is so fluid. The law is unsettled because so many of the legal questions currently being revisited are of fundamental rather than marginal importance. It is unsettled because not long ago these issues seemed resolved, at least in substantial measure. It is unsettled because the impetus for carrying out this reevaluation comes from many corners — Congress, the executive branch, the judiciary, the academy, state officials, and elsewhere. The current state of flux with regard to customary international law (CIL) has far-reaching implications. In the past, even when the United States refrained from entering into a treaty, some provisions of the treaty might be applied by US courts if those provisions were deemed to codify preexisting CIL. By this reasoning, the door was open for US courts to consult the opinions of foreign courts, not as a means of making the treaty binding on the United States but rather as evidence of CIL. If in the future the US legal system is considerably less monist toward CIL, then there likely will be less engagement between US judges and foreign legal sources.

Keywords: American law; customary international law; constitutional law; US legal system

Chapter.  15995 words. 

Subjects: Public International Law

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