The federal common law of foreign relations is a shrinking field. It should still govern many immunity-related issues, though not for the reasons courts and other scholars have given.
Latest in Customary International Law
In the midst of all the U.S. domestic and Trump coverage, it’s worth noting a front-page Wall Street Journal story from ten days ago on the French government targeting French citizens fighting for ISIS in Iraq.
BYU law professor Eric Talbot Jensen has a new article posted to SSRN (appearing in Brigham Young University Law Review) titled, "Presidential Pronouncements of Customary International Law as an Alternative to the Senate's Advice and Consent." Very interesting and well worth reading. Abstract (31 pp. pdf):
In U.S. federal courts, questions about the existence and contours of customary international law (CIL) arise in a variety of cases, both civil and criminal. These have generated a number of interesting debates, including, most prominently, one about the status of CIL in the United States: some contend that custom is self-executing federal common law, while others argue that it’s part of federal law only where Congress has chosen to codify it in a statute, or only where necessary to implement the separation of powers.