The relationship between international law and the American legal system is a subject of intense debate, particularly regarding how international agreements and other legal rules interact with domestic courts. In a recent webinar titled ‘International Law in American Courts’, international law heavyweight Gary Born sat down with Professor Roger Alford, also an expert in the field, to explore these complex dynamics. Born, the chair of the international litigation and arbitration practice group at Wilmer Cutler Pickering Hale and Dorr, and the only lawyer to receive global starred status in Chambers rankings for international arbitration, discussed his new work, International Law in American Courts. The conversation offered a deep dive into the historical intent of the Founding Fathers and how, in Born’s judgment, modern judicial interpretation has strayed from the original design of the US Constitution.
The Original Intent: International Law as Federal Law
A central theme of the discussion was the status of international law during the founding era. Born argues that the Framers of the Constitution quite deliberately treated the "Law of Nations", what we now call public and private international law, as federal law. Historically, the infant United States needed to establish itself as a sovereign nation capable of conducting foreign relations. To ensure this, the Framers included the Law of Nations within Article III's grant of subject matter jurisdiction and Article VI’s Supremacy Clause. This wasn't accidental. It was a strategic choice to ensure that the federal government, rather than individual states, controlled matters that could trigger international disputes. Born contends that this historical context challenges the views of modern "revisionist" scholars and recent US Supreme Court decisions. He suggests that by treating international law as federal law, the Framers intended for federal courts to have the authority to interpret and apply these rules, ensuring consistency across the nation.
The Debate Over Treaties and Self-Execution
The conversation then shifted to the role of treaties. Born’s analysis suggests that treaties were historically viewed as presumptively "self-executing." This means they were intended to be directly applicable in American courts without the need for additional implementing legislation from Congress. Under the Articles of Confederation and during the ratification of the Constitution, treaties were widely regarded as the "supreme Law of the Land." Born points out that early legal decisions and reports, including those by John Jay, supported the view that treaties superseded inconsistent state laws. However, modern jurisprudence has shifted away from this robust presumption. Born criticized the Supreme Court’s decision in Medellín v. Texas, arguing that the Court effectively rejected the presumption of self-execution. This shift, he suggests, complicates the enforcement of international obligations and ignores over two centuries of historical authority where treaties were afforded greater respect and direct applicability.
Customary International Law and the "Wrong Turn"
Another significant portion of the webinar focused on customary international law, historically known as the Law of Nations. Born explained that for much of US history, the Law of Nations was considered part of the "law of the land," inherited from the English common law. The "wrong turn," according to Born, began with the Supreme Court’s decision in Erie Railroad Co. v. Tompkins (1938), which declared there was no general federal common law. While Erie was a domestic case with no international elements, its principles were later applied to international law by revisionist scholars. This led to the argument that rules of customary international law are matters of state law, not federal law, a conclusion Born robustly disputes. He argues that leaving questions of international immunity or foreign relations to individual state courts produces absurd results, where a foreign sovereign might enjoy immunity in Texas but not in Oregon. Instead, he advocates for a return to the view that all aspects of the Law of Nations are matters of federal law.
Looking Forward: A Call for Course Correction
The webinar concluded with a look at the future. Born’s treatise is framed not just as a historical account but as a challenge to originalist judges to reconsider their stance on international law. By presenting detailed historical evidence, he hopes to spark a robust debate in both academic and judicial circles. For legal professionals and academics, the insights shared by Gary Born offer a compelling reason to re-examine the foundations of international law in the United States. As transnational disputes become increasingly common, understanding the original constitutional design may be key to resolving modern legal challenges.
Have you not been able to attend the webinar? You can still watch the replay ‘International Law in American Courts’.
