Virginia Journal of International Law
Since national scholars believe that state courts have not played a significant role in the development of CIL, they have asserted that leaving questions of CIL to parochial state courts invites chaos; state courts would develop conflicting rules of CIL and impermissibly interfere in matters of foreign relations. Because this critique of the revisionist position depends in great part on the validity of their understanding of the historical role of state courts, it is surprising that there is almost no commentary examining the historical foundations of these assumptions.
This article seeks to fill this gap by describing the historical role of state courts in the interpretation and development of CIL in the American legal system. It aims to test the validity of nationalist claims about the role of state courts against the historical and doctrinal record of state courts applying CIL. While I do not purport to offer a definitive historical account, my discussion of the role of state courts in the application of CIL reveals that, at the very least, the revisionist understanding of how CIL has been incorporated into American law has far greater plausibility than nationalist critics have admitted.
Julian G. Ku,
Customary International Law in State Courts, 42 Va. J. Int'l L. 265
Available at: http://scholarlycommons.law.hofstra.edu/faculty_scholarship/590