The abiding relevance of federalism to U.S. foreign relations

Article Abstract:

The US Supreme Court's decision in Breard v. Greene demonstrates how the interests of federalism can override an international treaty, the Vienna Convention on Consular Relations. In refusing to interfere with a state's decision to execute a Paraguayan convicted of homicide, the federal government indicated and the Court agreed that maintaining the autonomy of states is more important than abiding by international treaties. The case provides an example of how the federal government's constitutionally mandated requirement to conduct international policy and preserve states' rights can be weighed against each other.

United States, Federalism, Influence, Political aspects, International relations, Treaties, Conflict of laws, Jurisdiction

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Customary international law as federal common law: a critique of the modern position

Article Abstract:

Scholars and judges have accepted the proposition that customary international law is part of the US federal common law without thoroughly considering the constitutional implications. The Restatement (Third) of Foreign Relations and Filartiga v. Pena-Irala are cited in support of this position. Customary international law questions have arisen in alien-alien litigation, but when use of customary law in US cases increases, its potential to encroach on US legal and constitutional authority will be apparent.

Laws, regulations and rules, Human rights, Common law, Customary law, international

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Federal courts and the incorporation of international law

Article Abstract:

Professor Harold Koh incorrectly believes that customary international law may be incorporated into federal common law without political branch authority where the political branches have been silent. Koh's argument is faulty in its use of historical underpinnings, its combining traditional with human rights customary international law, its expansive view of federal court common law powers, and its assumption of a mandate for international law's incorporation into domestic law.

Usage, Federal courts, Practice, Criticism and interpretation, Koh, Harold Hongju

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