In 2003-2004, a Presidential campaign year dominated by debates about international affairs and international law, the U.S. Supreme Court took an unusual number of cases of international import. The Court considered the Alien Tort Claims Act and the future of human rights suits in U.S. courts, the applicability of the Foreign Sovereign Immunity Act to claims involving Nazi-stolen artwork, the applicability of American antitrust law to foreign anticompetitive activity, and the legality of the Guantanamo detentions. A great deal of ink has been spilled analyzing the individual impacts of each of these cases. What has been less considered is how these cases fit together and what, together, these cases can tell us about the Supreme Court's nascent theories of international law. Supremacy and Diplomacy: The International Law of the U.S. Supreme Court examines the international theory of the U.S. Supreme Court. Teasing out the various Justices' views from the 2003-2004 Term's international cases, the Article examines the Court's understanding of international law and the Court's role in the world. It looks at the varying success of particular parties in these cases, e.g., the U.S. government, foreign governments, and human rights activists, as well as how the Court approaches different fact-patterns. The article concludes that the Court has reached an unstable ad hoc compromise between redressing international wrongs and protecting American sovereignty. It argues that the Court's fractured discourse requires both the U.S. government and international law advocates to take an active role in shaping the Court's international law theories.
Harlan G. Cohen,
Supremacy and Diplomacy: The International Law of the U.S. Supreme Court
Available at: https://digitalcommons.law.uga.edu/fac_artchop/680
Originally uploaded in SSRN.