Introduction

The status of customary international law (CIL) in the U.S. legal system has been an issue of substantial and heated debate. As a general matter, the debate is dominated by two positions: the modern position view and the revisionist view. The modern position, which has been endorsed to varying degrees by a majority of foreign relations scholars and adopted by the Restatement (Third) of the Foreign Relations Law of the United States, perceives the entire body of CIL as federal common law even in the absence of political branch incorporation. The revisionist view, by contrast, maintains that the political branches or Constitution must authorize federal courts to use CIL as a federal rule of decision before the courts may do so. The revisionist approach does not preclude a role for CIL in federal courts. Rather, it seeks to ensure that the scope and nature of that role is defined by the elected branches of government, who bear primary responsibility for lawmaking and foreign affairs.

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