AMERICAN JUDGES AND INTERNATIONAL LAW A Mark Weisburd Introduction More and more frequently, American courts find themselves dealing with cases that raise ssues under public international law. These cases may involve claims against foreign governments,claims based on acts by foreign individuals, or claims against corporations alleged to have cooperated with foreign governments. While such claims may depend international law( CIL). And claims so based raise a probley y ey also rely on customary substantively on treaties or on federal statutes, very frequently they also rely on customary acknowledges the support of the North Carolina Law Foundation for this papr. F Professor of Law, University of North Carolina at Chapel Hill. The author gratefully E. g, Siderman de blake v Repub. of Argentina, 965 F 2d 699(9th Cir 1992) E. g, Hilao v. Estate of Marcos, 103 F 3d 767(9 Cir. 1996) E. g, Doe v Unocal Corp, 110 F Supp 2d 1294( C D. Cal. 2000) Actually, they raise a whole host of problems. Perhaps the most basic is, what is the place of customary international law in American law? While there is considerable judicial and scholarly authority for the proposition that customary international law is part of the law of the United States" as that phrase is used in Article Ill of the Constitution, see Filartiga v. Pena-Irala 630 F2d 876, 886-87 (2d Cir. 1980); In re Estate of Marcos Human Rights Litigation, 978 F2d 493, 502(9th Cir. 1992), cert. denied sub nom. Marcos-Manotoc v. Trajano, 508 U.S. 972(1993) Harold H. Koh, Is International Law Really State Law?, 111 HARv. L REv. 1824(1998): Gerald L Neuman, Sense and Nonsense About Customary International Law: A Response to Professors Bradley and Goldsmith, 66 FORDHAM L REV. 371(1997); Beth Stephens, The Law of Our Land Customary International Law as Federal Law after Erie, 66 FORDHAM L. REV. 393(1997),a number of writers have challenged this position, see Ernest A. Young, Sorting Out the debate Over Customary International Law, 42 VA J INT'L L 365, 462-63(2002); Daniel J. Meltzer Customary International Law, Foreign Affairs, and Federal Common Law, 42 VA J INT'L L 513, 519(2002); Curtis A. Bradley Jack L. Goldsmith, Customary International Law as Federal Common Law: A Critique of the Modern Position, 110 HARV. L REv. 815(1997): AM Weisburd, State Courts, Federal Courts and International Cases, 20 YALE J INT'L L 1(1995) Arthur M. Weisburd. The Executive Branch and International Law. 41 VAND L REV. 12051 * Professor of Law, University of North Carolina at Chapel Hill. The author gratefully acknowledges the support of the North Carolina Law Foundation for this paper. 1 E.g., Siderman de Blake v. Repub. of Argentina, 965 F.2d 699 (9th Cir. 1992) 2 E.g., Hilao v. Estate of Marcos, 103 F.3d 767 (9th Cir. 1996). 3 E.g., Doe v. Unocal Corp., 110 F.Supp.2d 1294 (C.D. Cal. 2000). 4 Actually, they raise a whole host of problems. Perhaps the most basic is, what is the place of customary international law in American law? While there is considerable judicial and scholarly authority for the proposition that customary international law is part of “the law of the United States” as that phrase is used in Article III of the Constitution, see Filartiga v. Pena-Irala, 630 F.2d 876, 886-87 (2d Cir. 1980); In re Estate of Marcos Human Rights Litigation, 978 F.2d 493, 502 (9th Cir. 1992), cert. denied sub nom. Marcos-Manotoc v. Trajano, 508 U.S. 972 (1993); Harold H. Koh, Is International Law Really State Law?, 111 HARV. L. REV. 1824 (1998); Gerald L. Neuman, Sense and Nonsense About Customary International Law: A Response to Professors Bradley and Goldsmith, 66 FORDHAM L. REV. 371 (1997); Beth Stephens, The Law of Our Land: Customary International Law as Federal Law after Erie, 66 FORDHAM L. REV. 393 (1997), a number of writers have challenged this position, see Ernest A. Young, Sorting Out the Debate Over Customary International Law, 42 VA. J. INT’L L. 365, 462-63 (2002); Daniel J. Meltzer, Customary International Law, Foreign Affairs, and Federal Common Law, 42 VA. J. INT’L L. 513, 519 (2002); Curtis A. Bradley & Jack L. Goldsmith, Customary International Law as Federal Common Law: A Critique of the Modern Position, 110 HARV. L. REV. 815 (1997); A.M. Weisburd, State Courts, Federal Courts and International Cases, 20 YALE J. INT’L L. 1 (1995); Arthur M. Weisburd, The Executive Branch and International Law, 41 VAND. L. REV. 1205 AMERICAN JUDGES AND INTERNATIONAL LAW A. Mark Weisburd* Introduction More and more frequently, American courts find themselves dealing with cases that raise issues under public international law. These cases may involve claims against foreign governments,1 claims based on acts by foreign individuals,2 or claims against corporations alleged to have cooperated with foreign governments.3 While such claims may depend substantively on treaties or on federal statutes, very frequently they also rely on customary international law (CIL). And claims so based raise a problem.4