This article addresses an issue with which federal courts have been forced to deal with increasing frequency: How ought a judge go about determining the content of customary international law? The article seeks to demonstrate, using the example of the treatment of the concept of "jus cogens" by the courts of appeals, that federal courts have come to rely on doubtful sources in addressing questions of international law. More specifically, it sets out to show that courts frequently do not rely on the actual practice of governments to determine the content of customary international law, which would seem to be required both by the nature of customary international law and by Supreme Court authority. Rather, they have come to place weight on the works of writers whose conclusions are based on questionable authority, on the Restatement of Foreign Relations Law, on the views of other domestic courts, and on the decisions of international courts. The article explains the problems with relying on such sources, and briefly describes an alternative method of proceeding for cases involving an area of customary international law most frequently before American courts, the law of human rights.
A. M. Weisburd,
American Judges and International Law,
36 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vjtl/vol36/iss5/1