Is International Law Really State Law?

Abstract

Revisionist scholars have recently challenged the hornbook rule that United States federal courts shall determine questions of customary international law as federal law. The revisionists claim that the traditional rule violates constitutional history and doctrine, and offends fundamental principles of separation of powers, federalism, and democracy. Professor Koh rebuts the revisionist challenge, applying each of the revisionists' own stated criteria. He demonstrates that the lawful and sensible practice of treating international law as federal law should be left undisturbed by both the political and judicial branches.