International Law and American Self-Governance

Guest Author:  Curtis Bradley

curtisWhether it is addressing the use of chemical weapons in Syria, prosecuting Somali pirates, or trying to obtain custody of the NSA leaker Edward Snowden (to take just a few recent issues), the United States is constantly interacting with international law.  Most Americans know little, however, about how this law is developed and how it affects their lives.  I’ve been teaching and writing about international law for about twenty years, and I’ve also had the privilege of advising the U.S. government on international law issues when I served as the Counselor on International Law in the legal arm of the U.S. State Department.

My book, International Law in the U.S. Legal System (Oxford Press 2013), focuses on how international law is applied within the United States — by courts, the Executive Branch, Congress, and the states. Part of the discussion is historical, recounting the various ways that the United States has interacted with international law since its Founding.  This history reveals recurring tensions between efforts by the United States to protect its sovereignty and its desire to play a leading role in international affairs.  Some of these tensions were evident when the Senate narrowly declined to give its approval last year to a UN treaty on the rights of the disabled.

The book addresses all the major forms of international law, including treaties, international custom, and the decisions and orders of international institutions. It also considers many concrete applications of international law in the United States, such as in litigation brought in U.S. courts by foreign victims of human rights abuses, in challenges to state death penalty laws, and in the various controversies surrounding U.S. policies in the “war on terror.”  In doing so, the book highlights the vast array of topics now addressed by international law and how it increasingly addresses matters previously regulated only by domestic law.bradley

Sometimes, the application of international within the U.S. legal system can present challenges for the country’s commitment to self-governance.  For example, there are many good reasons for delegating authority to expert international bodies, but such delegations can also dilute democratic accountability.  Similarly, it can be useful to bind nations to evolutionary norms of international custom, but this category of international law can also be invoked opportunistically in an effort to circumvent the normal process for making law in the United States.

A central theme of the book is that the international law applied in U.S. legal system is often filtered to take account of U.S. constitutional values and structure, sometimes inconsequentially and sometimes significantly.  For example, it is not uncommon for courts and other government actors in the United States to balance the need for effective implementation of international law with the desirability of preserving space for executive flexibility, congressional deliberation, and state and local autonomy.  Regardless of whether one regards this filtering process as a form of “American Exceptionalism,” the book suggests that on balance it plays a positive role in facilitating U.S. engagement with international law.

About Author:

Curtis Bradley is a professor of law at Duke University.  He has written numerous academic articles concerning international law and U.S. foreign relations law, many of which have been cited by courts. In 2004 he served as the Counselor on International Law in the Legal Adviser’s Office of the U.S. State Department and since that time has served on the State Department’s advisory committee on international law.

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