"International Law in the U.S. Legal System, 2nd Edition," by Curtis A. Bradley
Published by Oxford UP (Paperback 2015)
Reviewed by Kenneth Anderson
Curtis A. Bradley (Duke University Law School professor, leading scholar of US foreign relations law and, not least, Friend of Lawfare) is most recently author of International Law in the U.S. Legal System, 2nd Edition, which has just been released in paperback. The intersection of international law and US law and legal processes, says Bradley, is a mixture of "constitutional, statutory, judicial, and executive branch materials." Mingling these materials means that international law, as applied in United States courts,
has a distinctly American gloss. This gloss does not mean does not mean that the role of international law in the U.S. legal system is insignificant, but it does mean that this role is mediated by a variety of domestic legal and political considerations.
A foundational point of the book is that US law and US legal process have many features that profoundly shape how international law is brought into consideration and what will be taken as its content; what establishes authoritative interpretations of that law; and the distinctive roles with the US legal system of precedent, evidentiary rules, canons of construction, and many other things. One consequence of this (among others) is that how US courts address international law will often be very different from how another country's domestic legal system or an international tribunal (such as the International Court of Justice) might address the same international law materials. International law has its own hierarchies of authority, canons of construction, and a sense of legitimacy with regards to itself. Many of these are contested categories, to be sure, but they are contested within international law and its constitutive actors, so whatever exactly international law's structure of authority and whatever institutions give its most authoritative interpretations, its authority is not one that depends upon the authority of the US Constitution. The approach of US courts to international law will inevitably be profoundly different from how international law approaches, so to speak, itself.
In the context of the Alien Tort Statute, on occasion I've called this "faux international law" -- though, as I note below, that's more than a bit unfair for how US courts approach international law taken as a whole. But with respect to the ATS, in particular, I've gone further to suggest that the expansion of this "faux" category, since 1990, is best understood as the US "law of the hegemon" -- dressed up, however, in international law clothing. Its "faux" nature is perhaps more easily discerned in these times of retreat and retrenchment of US hegemonic law than it was in times of expansion, when it was easier to run together hegemonic law and international law.
The difficulty of the above characterizations from the standpoint of the international lawyer, however, is that they are unapologetically "external" to the "internal" structure of either international law or US law. (I'm quite sympathetic, though not enough to drop it, to the impatience of lawyers acting as lawyers, having to make legal arguments as lawyers, with characterizations that sound a bit like undergraduates first discovering Gramsci. Or, come to that, Pareto.) As parts of a legal argument, in other words, or as part of a legal explanation for the changes of the past few years that International Law in U.S. Courts describes so well, "faux" and "hegemon" are not very useful. I grant that entirely. Yet, for what it's worth, I just don't believe the shifts betokened by Kiobel, Daimler-Benz, and other such cases (John Bellinger has discussed many of them here at Lawfare) can be adequately explained in legal terms alone.
The directions signaled by the US Supreme Court in these and other cases, it seems to me, can't be easily explained without recourse to a shifting political view on the part of Justice Breyer (most significantly among the justices), away from what had been a gradually unfolding "universalist" conception of jurisdiction toward one, better suited to a post-hegemonic global order, that is more traditionally "extraterritorial." This shift in view, in turn, can't really be understood without understanding the international politics of the retreat of the hegemon and the rise of new great powers.
New great powers, that is -- China, not to put too fine a point on it -- that will likely not respond well to their companies being haled into US courts under, for example, the ATS in circumstances of the "foreign-cubed" example raised by Kiobel. I would find it hard to explain the shift in ATS jurisprudence without thinking through the politics of whether the US Supreme Court believes that, in a much more jostling, competitive world, it is a good idea for US courts to be making liability decisions about other countries' companies operating in still other countries with minimal or no connections to the US. In the world of yesterday, courts of the hegemon could be seen as expressing, in benign ways in their own eyes, universal human rights law, but with the political clout of the security and economic hegemon standing behind them to back up their presumptions of universality. In the world of today, even Justice Breyer would seem to accept that the seemingly universal is not necessarily universal, and that jurisdiction -- or, expressed more politically, decisions made by the judicial branch rather than the political branches in foreign affairs -- ought to be prudentially rooted in a far more cautious frame of extraterritoriality.
But that's a fundamentally political account. International Law in U.S. Courts, by contrast, is committed to an "internal" view that seeks to account for these bodies of law in legal terms (though with some absorption of a "pragmatic" view of international law in the way that, for example, the US State Department has traditionally seen it, rather than some strictly formalist view). An account in far more legal terms than I have just suggested can be found in the book's chapter on the ATS, and, even more centrally, in the chapter on extraterritoriality. It probably goes without saying that the words "faux" and "hegemon," being essentially political, do not figure in these chapters.
The "faux" international law characterization, to return to something said above, is of course not entirely fair to US courts. US courts do use the materials of international law in certain fields with great attention to its own internal structure, doctrines of authority, and interpretive sources -- these fields, however, are particularly commercial, trade, and other bodies of international economic law. US courts that adjudicate frequently in these areas are both knowledgeable and sensitive to the need for common approaches to the rules of cross border commerce and trade across different court systems. The "faux" international law difficulties arise, by contrast, particularly with regard to national security issues, such as interpretations of the law of war, or else international law dealing with moral and political values, often with Constitutional implications, such as human rights treaties.
Consider a simple example drawn from US cases interpreting the Alien Tort Statute. The ATS merits, with good reason, a whole chapter to itself in Bradley's book; the reason is that the ATS exemplifies the problems of domestic/international law interaction. This is so if for no other reason than the fact that the wording of the statute provides for a civil action by a foreign person in US court -- but premises it on a violation of a treaty of the United States or the law of nations. Even the wording of the ATS, in other words, creates a US-centric twist on the applicable international law: not just any treaty, even one that has wide adherence by states (the Ottawa Convention banning antipersonnel landmines, for example), but only treaties of the United States.
Though, given my own interests, I found the ATS chapter of the book particularly compelling, it is just one of a wealth of examples of the "interface" issues analyzed by successive chapters of International Law in the U.S. Legal System. Another important theme of the book is what has already been described above as an apparently shifting view of extraterritorial jurisdiction by US courts, generally charting a more restrictionist approach (though not without many contrary and inconsistent indications, in a story that is still unfolding).
The purpose of Bradley's book is not to aggressively argue for a particular intellectual position that is supposed to win out over others. International Law is much more a clear, expository textbook, written in descriptive mode. It has points of view, to be sure; still the aim overall is scrupulously to ensure that a reader not expert in these issues come away with a fair statement of the arguments on the different sides, and an understanding of what topics are basic to the subject. Bradley has written an elegant book that prizes clarity in a plain prose style -- it's a highly readable volume, suitable not only for lawyers and law professors, but also non-lawyer general readers, undergraduates and graduate students, and academics not in law. The Lawfare Book Review Editor read it with genuine pleasure (which is not always, we sorrow to report, His Serenity's reaction to academic books on international law), mostly late at night in the dark on Kindle.
The topic of International Law in the U.S. Legal System is an important one today for many reasons (not least, the current undertaking to draft a new Restatement 4th of the Foreign Relations Law of the United States, ably co-helmed by UVA's Paul Stephan and Columbia's Sarah Cleveland). A quick sampling of International Law's chapter titles gives an idea of key points where the tectonic plates of US and international law meet in US courts:
- (4) Decisions and orders of international institutions
- (5) Customary international law
- (6) Extraterritorial application of U.S. law
- (7) Alien Tort Statute litigation
- (10) War powers and the war on terrorism
(Kenneth Anderson, aka His Serenity, Book Review Editor of Lawfare, is most recently co-author, with Lawfare Editor-in-Chief Benjamin Wittes, of Speaking the Law: The Obama Administration's Addresses on National Security Law. He has made a few edits on the review since it was published including correcting, with sincerest apologies, the spelling of Paul Stephan's name.)