In recent years, I have watched the swirling debate over whether the United States courts should consult international or comparative law.\u00a0 As a law professor, the debate has puzzled me, for international and comparative legal materials have always appeared in the sources consulted by American lawyers and judges.\u00a0 So this article is really a search for the roots of the contemporary controversy.\u00a0 Why is there a controversy? And what can we learn from it?<\/p>\n
I will suggest three conjectures to explain the fact of the contemporary debate over the proper role of international law within the United States:<\/p>\n
(1) a basic concern emphasizes that we risk being taken over, or losing what we are by engaging with others;<\/p>\n
(2) a second worry stresses that the United States is exceptional and thus faces politically motivated attacks as the last superpower;<\/p>\n
(3) a third very specific trepidation arises from the unusual nature of \u201ccustomary international law.\u201d<\/p>\n
My hope is that by locating the sources of the controversy over the place of international law within the United States, we can dismiss artificial issues and focus on genuine and significant developments\u2014broader changes that offer a window onto the prospects for more effective human governance.\u00a0 The debate diverts attention from developments that might be instructive to us not just in what US courts do but, more importantly, in how we design legislation and legal institutions and how we understand our place in the world.<\/p>\n
First, we need to see the puzzle: what is the contemporary debate and how does it relate to judicial practice in the United States?<\/p>\n
Here is the puzzle: no one disagrees that United States judges have long consulted and referred to materials from other countries as well as international sources; yet for the past nine or so years, citing foreign and international sources has provoked intense controversy.<\/p>\n
The evidence of the longstanding practice is undisputed and well-forecast by one of the Federalist Papers, which asserted, \u201cattention to the judgment of other nations is important to every government\u201d as a matter of foreign policy and also as a check on \u201cstrong passion or momentary interest\u201d within the nation.[1]<\/sup><\/sup><\/a> The U.S. Constitution itself accords to Congress the authority to \u201cdefine and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations.\u201d[2]<\/sup><\/sup><\/a> Citations to foreign law appear in Supreme Court opinions from 1823 (dealing with Native Americans),[3]<\/sup><\/sup><\/a> 1832 (defining the status of Indian tribes)[4]<\/sup><\/sup><\/a>, 1877 (concerning personal jurisdiction),[5]<\/sup><\/sup><\/a> and 1879 (rejecting polygamy)[6]<\/sup><\/sup><\/a>.\u00a0 In 1900, the Supreme Court ruled that \u201cinternational law is part of our law.\u201d[7]<\/sup><\/sup><\/a> Justices on the Supreme Court have consulted and referred to the laws of other nations in addressing slavery,[8]<\/sup><\/sup><\/a> mandatory vaccinations,[9]<\/sup><\/sup><\/a> regulation of wheat markets,[10]<\/sup><\/sup><\/a> emergency governmental powers,[11]<\/sup><\/sup><\/a> the meaning of cruel and unusual punishment,[12]<\/sup><\/sup><\/a> rights upon arrest,[13]<\/sup><\/sup><\/a> abortion,[14]<\/sup><\/sup><\/a> sodomy,[15]<\/sup><\/sup><\/a> and end-of-life treatment.[16]<\/sup><\/sup><\/a> Judge Frank Easterbrook reviewed the use of foreign sources by U.S. courts and concluded that the practice \u201chas been stable for a long time; any suggestion that the practice has skyrocketed recently is unfounded.\u201d[17]<\/sup><\/sup><\/a><\/p>\n Others have noted that consideration by U.S. judges of decisions or practices from other countries and international bodies is fundamentally no different than references to law review articles, materials from state courts, or Shakespeare, in that each is \u201cfiltered through the analytical machinery of a U.S. court\u201d and treated not as binding but merely as potentially instructive.[18]<\/sup><\/sup><\/a><\/p>\n Whether identified as foreign law, international law, or comparative law, what if any role should legal materials originating from outside domestic U.S. practice play inside the legal system of this country?\u00a0 It is worth noting at the outset that the discussion tends to merge these categories\u2014international and comparative law\u2014although all that they share is \u201cnot U.S. in origin.\u201d\u00a0 Let me flag for later emphasis: where international law does<\/em> have endorsement by the United States, then it too is U.S. law.\u00a0 Although this point gets obscured, let us acknowledge that the debate sweeps in consultation of constitutions, statutes, and judicial decisions from other countries, as well as international treaties we have not signed, international treaties we have signed, and other sources of international law.<\/p>\n Current members of the U.S. Supreme Court advance the most visible edge of the contemporary debate over this issue.\u00a0 When Justices of the United States Supreme Court give public speeches, they seldom replay fights internal to the Court on the results of particular cases, but more commonly explore disagreements about methods of interpretation and the roles of judges and the judiciary.<\/p>\n During his Senate confirmation hearing, Chief Justice John Roberts objected to reference to international law by U.S. courts because international law \u201cdoesn\u2019t limit [judges\u2019] discretion the way relying on domestic precedent does,\u201d and consulting how other countries treat particular legal questions pending in the United States is like \u201clooking out over a crowd and picking out your friends.\u201d[19]<\/sup><\/sup><\/a> During his own confirmation hearing, Justice Samuel Alito emphasized that \u201cThe Framers [of the United States Constitution] did not want Americans to have the rights of people in France or the rights of people in Russia, or any of the other countries on the continent of Europe at the time.\u00a0 They wanted them to have the rights of Americans, and . . . I don\u2019t think it\u2019s appropriate to look to foreign law.\u201d[20]<\/sup><\/sup><\/a><\/p>\n Justice Thomas wrote concurring in a denial of certiorari, \u201cWhile Congress, as a legislature<\/em>, <\/em>may wish to consider the actions of other nations on any issue it likes, this Court\u2019s Eighth Amendment jurisprudence should not impose foreign moods, fads, or fashions on Americans.\u201d[21]<\/sup><\/sup><\/a> In a 2004 opinion, Justice Antonin Scalia chided fellow Justices for inviting implying that the \u201claw of nations,\u201d which he described as \u201credefined to mean the consensus of states on any <\/em>subject,\u201d could ever bind citizens in our territory because, he wrote, this idea is \u201ca 20th<\/sup>-century invention of internationalist law professors and human rights advocates\u201d[22]<\/sup><\/sup><\/a> and is inconsistent with both the understanding of our Constitution\u2019s framers and democracy.\u00a0 Scalia viewed international human rights law to be \u201ca fantasy.\u201d[23]<\/sup><\/sup><\/a> In another recent opinion, Justice Scalia objected to the citation of the laws of other nations as irrelevant and inconsistent, and also noted that that \u201c\u2018[a]cknowledgment\u2019 of foreign approval has no place in the legal opinion of this Court unless it is part of the basis for the Court\u2019s judgment<\/em>\u2014which is surely what it parades as today.\u201d[24]<\/sup><\/sup><\/a><\/p>\n Some members of Congress decided to join the fray and even suggested censure or impeachment of a judge who cites non-U.S. sources.[25]<\/sup><\/sup><\/a> Members of Congress have repeatedly introduced resolutions such as this one: \u201cjudicial interpretations regarding the meaning of the Constitution of the United States should not be based in whole or in part on judgments, laws, or pronouncements of foreign institutions unless such foreign judgments, laws, or pronouncements inform an understanding of the original meaning of the Constitution of the United States.\u201d[26]<\/sup><\/sup><\/a> Senator John Cornyn introduced this resolution into the Senate by warning that a trend of citing foreign decisions, if real, would mean that \u201cthe American people may be losing control over the meaning of our laws and of our Constitution.\u00a0 If this trend continues, foreign governments may even begin to dictate what our laws and our Constitution mean, and what our policies in America should be.\u201d[27]<\/sup><\/sup><\/a> During the Senate confirmation hearings for Justice Elena Kagan, Senator Jon Kyl said he was troubled by the suggestion \u201cyou can turn to foreign law to get good ideas.\u201d[28]<\/sup><\/sup><\/a> Former Attorney General Alberto Gonzales objected that foreign legal sources should not be used in U.S. courts because their authors \u201care not accountable to the American people.\u201d[29]<\/sup><\/sup><\/a> In sum, critics charge that references to non-U.S. sources by American judges can be selective, faddish, and cover for the judges\u2019 own unaccountable views, or a departure from American democracy and authority.<\/p>\n When it comes to keeping Congress out of their business, perhaps all the Justices could agree.\u00a0 Hence, Justice Scalia in a speech in 2006 declared, \u201cAs much as I think that it is improper to use foreign law to determine the meaning of the Constitution, I don\u2019t think it\u2019s any of [Congress\u2019s] business.\u201d[30]<\/sup><\/sup><\/a><\/p>\n But on the place of foreign and international law within U.S. law, Justices Breyer, Ginsburg, and Kennedy have diverged from the views already described.\u00a0 Justice Breyer does not only refer to foreign and international legal sources,[31]<\/sup><\/sup><\/a> he also emphatically defends this practice, noting:<\/p>\n [W]hen I do read things, I can read what I want.\u00a0 If I see something written by a man or a woman who has a job like mine in another country, and who is interpreting a document somewhat like mine and who in fact has a problem in front of the court somewhat like mine, why can\u2019t I read it, see what they\u2019ve done? I might learn something.[32]<\/sup><\/sup><\/a><\/p>\n Justice Breyer has asserted that international law importantly reflects a globalization of human rights and \u201cnear-universal desire for judicial institutions that, through guarantees of fair treatment, help to provide the security necessary for investment and, in turn, economic prosperity.\u201d[33]<\/sup><\/sup><\/a> Foreign governmental responses, in his view, may \u201ccast an empirical light on the consequences of different solutions to a common legal problem.\u201d[34]<\/sup><\/sup><\/a> Justice Breyer has also commented: \u201cI know it\u2019s not binding,\u201d when the authority comes from outside the United States, and, in his words, \u201cso what\u2019s the problem?\u201d[35]<\/sup><\/sup><\/a><\/p>\n Justice Ruth Bader Ginsburg similarly has commented that \u201cJudges in the United States are free to consult all manner of commentary\u2014Restatements, Treatises, what law professors or even law students write copiously in law reviews . . . why not the analysis of a question similar to one we confront contained in an opinion of the Supreme Court of Canada, the Constitutional Court of South Africa, the German Constitutional Court, or the European Court of Human Rights?\u201d[36]<\/sup><\/sup><\/a> More controversially, she has stated, \u201cWe are losers if we neglect what others can tell us about endeavors to eradicate bias against women, minorities, and other disadvantaged groups.\u201d[37]<\/sup><\/sup><\/a> Indeed, she stresses that lack of engagement with foreign decisions has reduced the influence of the Supreme Court.[38]<\/sup><\/sup><\/a> Following the Senate confirmation hearings for Justice Kagan, Justice Ginsburg speech stressed, \u201cThe U.S. judicial system will be the poorer, I have urged, if we do not both share our experience with, and learn from, legal systems with values and a commitment to democracy similar to our own.\u201d[39]<\/sup><\/sup><\/a> Citing reference to foreign opinion or law by the authors of the Declaration of Independence, the authors of the Federalist Papers, and by Supreme Court opinions, Justice Ginburg predicted that the U.S. Supreme Court will continue to accord \u201ca \u2018decent Respect to the Opinions of [Human]kind\u2019 as a matter of comity and in a spirit of humility.\u201d[40]<\/a><\/p>\n Justice Anthony Kennedy previously objected to the idea that judgments from foreign constitutional courts could contribute to the development of American constitutional law, but in recent years he has cited foreign sources in key opinions.\u00a0 In Lawrence v. Texas<\/em>, invalidating Texas\u2019 sodomy statute, Justice Kennedy pointed to the decriminalization of sodomy by the British Parliament in 1967, the European Convention on Human rights, and a 1981 European Court of Human Rights decision.[41]<\/sup><\/sup><\/a> In Roper v. Simmons<\/em>, explaining the Court\u2019s rejection of the death penalty applied to a crime committed by a minor, Justice Kennedy\u2019s analysis of the Eighth Amendment Cruel and Unusual Punishment Clause included consideration of \u201cthe world community\u201d as providing \u201crespected and significant confirmation for our own conclusions.\u201d[42]<\/sup><\/sup><\/a> Justice Kennedy added, \u201cIt does not lessen fidelity to the Constitution . . . to acknowledge that the express affirmation of certain fundamental rights by other nations and peoples underscores the centrality of those same rights within our own heritage of freedom.\u201d[43]<\/sup><\/sup><\/a><\/p>\n Justice Sonia Sotomayor has also supported \u201cbroader consideration of foreign and international law in U.S. judicial opinions,\u201d[44]<\/sup><\/sup><\/a> and in 2009 in a speech stated, \u201cto the extent that we have freedom of ideas, international law and foreign law will be very important in the discussion of how to think about the unsettled issues in our legal system,\u201d[45]<\/sup><\/sup><\/a> though she has also maintained that such sources have \u201cvery limited formal force\u201d and she joins Justices Scalia and Thomas in warning of selection bias in the use of international legal sources.[46]<\/sup><\/sup><\/a> While on the Court, Chief Justice Rehnquist and Justice Sandra Day O\u2019Connor at times supported judicial consultation of decisions of other constitutional courts outside the United States.[47]<\/sup><\/sup><\/a><\/p>\n Yet since 2003, a serious political as well as theoretical fight over judicial reference by U.S. judges to non-U.S. sources has broken out in the opinions of Supreme Court Justices, on the lecture circuit, in law reviews, and in Congress.\u00a0 Intensity of feeling around these debates should not be underestimated.\u00a0 Justice Ginsburg reported a death threat was posted on a website in 2005 against both her and Justice O\u2019Connor in reference to their discussions of international law in the context of judicial decision-making.[48]<\/sup><\/sup><\/a> Justice Ginsburg cautioned that the congressional debates seemed to \u201cfuel the irrational fringe.\u201d[49]<\/sup><\/sup><\/a><\/p>\n Senator Cornyn offered a cogent explanation of the first source of the fight over turning to foreign law: a basic concern about identity and autonomy\u2014that we risk being taken over and losing what we are by engaging with others.\u00a0 This concern squarely hits the use of comparative law, the law of Germany, Canada, South Africa, Israel, or other countries, rather than consultation of international law, though that, too, could raise similar worries.\u00a0 There is an obvious intersection between this set of concerns and debates over judicial interpretation and constitutional construction.\u00a0 Justice Scalia, for example, is explicit in his advocacy of \u201coriginalism,\u201d directing judges to construe the United States Constitution to discern the meaning of its drafters.\u00a0 Justice Scalia connects this method to his resistance to foreign sources in noting, \u201cthe men who founded our republic did not aspire to emulate Europeans, much less the rest of the world . . . and nothing has changed.\u201d[50]<\/sup><\/sup><\/a> Justice Breyer emphasizes, in contrast, that the Declaration of Independence itself points to a \u201cdecent respect to the opinions of mankind,\u201d[51]<\/sup><\/sup><\/a> and Justice Breyer has articulated a philosophy of judicial interpretation that pursues the underlying values of fostering democracy and the well-being of citizens.[52]<\/sup><\/sup><\/a><\/p>\n For Senator Cornyn and others, U.S. judges risk losing tight adherence to strictly U.S. text and values if they consult the laws or decisions of other nations to construe terms within the U.S. Constitution.\u00a0 Attacks against consideration of foreign sources can reflect not only concerns about confining judges to the views held by the Constitution\u2019s framers but also disagreements over the results in cases like Lawrence v. Texas<\/em>\u2014striking down a statute criminalizing sodomy\u2014and Roper v. Simmons<\/em>\u2014rejecting the death penalty applied to a crime committed by a minor.\u00a0 An author posting on the National Review website comments that this consultation of foreign and international law to assist interpretation of the U.S. Constitution could allow a judge to \u201creach the result he wants to reach\u201d with no restrictions, and with the effect of \u201cdepriving American citizens of their powers of representative government by selectively imposing on them favored policies of Europe\u2019s leftist elites.\u201d[53]<\/sup><\/sup><\/a> As no one argues that foreign sources are in any way binding on the United States, the objection merely to consulting them is thus often simply part of the critique of the outcomes.<\/p>\n Yet there is another worry about the consultation of foreign sources that seems to operate at a psychological or sociological level of concern.\u00a0 The sheer act of looking at decisions or opinions from non-U.S. sources is the apparent problem\u2014so why?\u00a0 There seems to be a fear of temptation or loss of control.\u00a0 If merely looking at what others are doing causes the worry, the concern seems to be about caving to peer pressure or being an outlier\u2014some kind of contagion effect.\u00a0 Justice Breyer must sense this objection for he responds, \u201ccomparative use of foreign constitutional decisions will not lead us blindly to follow the foreign court,\u201d and \u201cof course, we are interpreting our own Constitution . . . and there may be relevant political and structural differences between their systems and our own.\u201d[54]<\/sup><\/sup><\/a><\/p>\n This recognition of differences offers a response to the fear that our judges will be contaminated, unable to resist, or taken over if they consult constitutional materials from other countries.\u00a0 The assumption that looking at what others do leads to following them neglects the genuine possibility that looking at others will lead to greater conviction about remaining different or to increased clarity about the reasons for going a different way.\u00a0 As Professor Vicki Jackson at Georgetown University Law Center emphasizes, the process of engagement with comparative materials is as likely to help American judges clarify what is not <\/em>consistent with the text and traditions of the United States as it is to be instructive in interpreting American commitments.[55]<\/sup><\/sup><\/a> For example, in viewing the treatment of hate speech in Canada and Germany, where courts have upheld and applied restrictions, analysis of the American constitutional tradition rejects the path pursued elsewhere as disconnected from our text and commitments, as well as reflective of different contexts and concerns.[56]<\/sup><\/sup><\/a> Looking at what others do may sharpen our sense of our differences rather than produce a sense of pressure to conform.<\/p>\n This reminds me of the critical lesson my mother taught my sisters and me. As my sister Nell explained recently:<\/p>\n One of the greatest gifts my mother ever gave me was when I was in kindergarten and I told her that everyone else was allowed to go to a friend\u2019s house after school without getting permission first except me.\u00a0 She said, \u201cNow is a good time for you to learn that that reason will never work in our family.\u00a0 If there\u2019s a reason that something is right for us, I want to hear about it.\u00a0 But what everyone else is doing is never a reason for us to do it.\u201d[57]<\/sup><\/sup><\/a><\/p>\n My sister reflected:<\/p>\n What an utterly liberating idea.\u00a0 I never thought about trying to be like everyone else again.\u00a0 Now that backfired a little on my mother when she tried to tell me that everyone else wears shoes at their wedding, but other than that, we\u2019ve both been very happy with it.[58]<\/sup><\/sup><\/a><\/p>\n I do not mean to minimize concerns about peer pressure or influence but instead to emphasize that confidence in who we are, what our values and traditions are, and how we interpret them over time stems from a source deeper than a refusal to look at what others do.<\/p>\n Announcement of American difference, however, is a further reason for the resistance to judicial consideration of foreign or international sources.\u00a0 The view of American uniqueness has roots in ideas from the Puritans, ideals of the Revolution, comments by observers like Alexis de Tocqueville,[59]<\/sup><\/sup><\/a> and visions of leaders like Abraham Lincoln, whose Gettysburg Address locates America as a nation \u201cconceived in liberty, and dedicated to the proposition that all men are created equal.\u201d[60]<\/sup><\/sup><\/a> After the fall of the Soviet Union, American exceptionalism also became associated with recognition of the nation as the last superpower, and some have argued that as the United States has been expected to play\u2014and is often playing\u2014the leading role in many international affairs, this country should be understood as an \u201cexception\u201d to the law of nations.\u00a0 Some make this claim affirmatively and others do so critically.[61]<\/sup><\/sup><\/a> In this context, reference to international law in decisions by American judges can be fraught with political charge, especially if it seems to signal adherence to international documents outside the official process of treaty agreement involving the Congress and the President.<\/p>\n For some, reference to foreign sources in Justice Kennedy\u2019s opinion for the five-Justice majority striking down the death penalty for crimes committed by juveniles in Roper v. Simmons<\/em> is especially controversial because even the majority acknowledged that \u201cwhen the Senate ratified the International Covenant on Civil and Political Rights . . . it did so subject to the President\u2019s proposed reservation regarding Article 6(5) of that treaty, which prohibits capital punishment for juveniles.\u201d[62]<\/sup><\/sup><\/a> Justice Kennedy\u2019s consideration of practices by other nations thus, to some, looked like an end run around that treaty process.\u00a0 It is worth noting, however, that Justice Kennedy\u2019s opinion expressly interprets United States law, namely, the \u201ccruel and unusual punishment\u201d language in the Eighth Amendment of our Constitution, and considers foreign practice only alongside practices within our states and expert opinions within the United States as data to assess, as our Eighth Amendment directs, whether punishment is \u201ccruel and unusual.\u201d[63]<\/sup><\/sup><\/a> The relevance of the law of other nations is only as provided by United States law that itself directs judges to consider what is or has become \u201ccruel and unusual.\u201d<\/p>\n The issue of American exceptionalism arises additionally with regard to international legal sources, and the clear rule is that the United States is bound by international law when that law has been duly incorporated into U.S. law, pursuant to our own procedures for doing so.\u00a0 One of the treaties we have not signed establishes the International Criminal Court (technically: President Bill Clinton signed the governing Rome Statute, President George Bush \u201cunsigned\u201d it, and Congress has never ratified it).[64]<\/sup><\/sup><\/a> U.S. critics assail this court\u2014empowered to investigate and prosecute crimes against humanity, war crimes, and genocide\u2014as an infringement of national sovereignty, as operating with vague and unaccountable power, and as subject to politically motivated prosecutions.[65]<\/sup><\/sup><\/a> It does pose the unusual feature that even nations that have not signed onto the court could face prosecutions if the situation involving an alleged international crime within the court\u2019s jurisdiction is referred to the ICC prosecutor by the United Nations Security Council under Chapter VII of the Charter of the United Nations.[66]<\/sup><\/sup><\/a> The United States has itself embraced the Charter of the United Nations, so this provision is itself consistent with the law of the United States.\u00a0 That the United States holds a veto at the United Nations Security Council should be some reassurance that checks exist to protect the United States.[67]<\/sup><\/sup><\/a> But with calls for war crimes prosecutions against various officials in the United States for incidents ranging from the conflicts in Vietnam to the conflict in Iraq, these concerns could contribute to the heat over reference to international sources by the United States judiciary.<\/p>\n The proper resolution of this matter, once more, is to be found in the directives of U.S. law itself.\u00a0 In a series of recent decisions, the U.S. Supreme Court addressed the place of international law as a limit to the conduct of the executive branch and clearly reinforced this ground rule: where the United States has made international law part of our domestic legal system, it is binding and enforceable law inside the country, even against the executive during a time of armed conflict.\u00a0 Hence, in Hamdan v. Rumsfeld<\/em>, the Court found fatal defects in the military commissions established during the administration of George W. Bush to hold trials for detainees at Guantanamo Bay because their structures and procedures violated two sources of U.S. law: the Uniform Code of Military Justice and Common Article 3 of the Geneva Conventions, signed in 1949 and codified in U.S. law and ensuring detainees a \u201cregularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.\u201d[68]<\/sup><\/sup><\/a> In his concurring opinion, producing the fifth vote for this view, Justice Kennedy reasoned:<\/p>\n The terms of this general standard are yet to be elaborated and further defined, but Congress has required compliance with it by referring to the \u201claw of war\u201d in \u00a7821. The Court correctly concludes that the military commission here does not comply with this provision.<\/p>\n Common Article 3\u2019s standard of a \u201cregularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples,\u201d . . . supports, at the least, a uniformity principle. . . .<\/p>\n Absent more concrete statutory guidance, this historical and statutory background\u2014which suggests that some practical need must justify deviations from the court-martial model\u2014informs the understanding of which military courts are \u201cregularly constituted\u201d under United States law.[69]<\/sup><\/sup><\/a><\/p>\n Explicit Congressional authority would be necessary before the executive could bypass these otherwise existing U.S. norms.\u00a0 No claim of American exceptionalism can give the President of the United States unilateral authority to suspend the Geneva Conventions;[70]<\/sup><\/sup><\/a> for those who care about the capacity of the United States to operate apart from developments in international law, the internal domestic structures of the United States Constitution\u2014notably, congressional action, subject to presidential veto and judicial review\u2014provide the proper avenues.<\/p>\n Heated concerns over bypassing domestic legal structures lie behind the specific objection to judicial application of what is known as \u201ccustomary international law.\u201d\u00a0 Understanding those concerns can help explain some of the anxieties about judicial application of international law.\u00a0 \u201cCustomary international law\u201d can be defined as \u201crules of law derived from the consistent conduct of States acting out of the belief that the law required them to act in that way.\u201d[71]<\/sup><\/sup><\/a> Analogous in some ways to the common law in the Anglo-American tradition, customary international law\u2014which has, according to observers such as the authors of the 1987 Restatement (Third) of Foreign Relations Law of the United States, long included the international crimes of slavery, genocide, and war crimes, as well as the principles of immunity for visiting heads of state and the right to humanitarian intervention\u2014thought by some to be binding, not merely advisory.[72]<\/sup><\/sup><\/a> The Restatement itself, written by American law professors Louis Henkin, Andreas Lowenfeld, Louis Sohn, and Detlev Vagts, was the first effort to assert inclusion of customary international law within the U.S. federal law; the prior edition has indicated that its status was an open question.II. Why the Big Fight?<\/h1>\n
A. Fear of Being Taken Over and Losing Control<\/h1>\n
B. Defense of American Exceptionalism<\/h1>\n
C. Customary International Law<\/h1>\n