In addition to international law, comparative law and the conflict of laws, I have another field of law that FCIL librarians should be conversant with: foreign relations law. This has been defined as the domestic law of each nation that governs how that nation interacts with the rest of the world. That’s too general to give a good idea of what foreign relations law deals with. Let’s examine the table of contents of a recent work in the field, The Oxford Handbook of Comparative Foreign Relations Law (2019), to see what the subject covers:
- Treaty making in domestic law;
- Application of international law in domestic courts;
- International immunities, including sovereign immunity, in domestic law;
- Foreign acts of state in domestic law;
- Federalism and foreign relations;
- National participation in international institutions;
- Use of military force under domestic law.
It is clear from this listing that a theme running throughout the field of foreign relations law is the role of international law in domestic law. It is this theme that makes foreign relations law of particular interest to FCIL librarians. I would go as far as to say that our understanding of international law in general is incomplete without a grasp of how international law interacts with our home legal system.
To amplify this theme I would like to take as an example the issue of the position of customary international law in the domestic legal system. I take U.S. law for this example, as this is the jurisdiction that I know something about. I take as a guide the chapter on this topic in the book by Curtis A. Bradley, International Law in the U.S. Legal System (3rd ed. 2021).
The “law of nations”, the term used at the Founding that includes customary international law, is used only once in the Constitution. Article I, § 8, clause 10 gives Congress the power to “define and punish … Offences against the Law of Nations.” Contrast this with the constitutions of nations like Austria and Germany that have provisions explicitly making international law part of national law. Article 25 of the German Basic Law says: “The general rules of international law shall be an integral part of federal law.”
Some scholars have argued that the phrase “Laws of the United States” as used in Articles III and VI of the Constitution was meant to include customary international law. This view has been criticized on a number of grounds.
Nevertheless, both before and after the Constitution took effect courts in the U.S. treated the law of nations as applicable and as part of the law of the land. The most famous case is The Paquete Habana, decided by the Supreme Court in 1900. The case concerned the seizure by the U.S. Navy of two fishing vessels off the coast of Cuba during the Spanish-American War. The owners of the vessels argued that the seizure violated customary international law, and the Supreme Court agreed. The court reviewed state practice going back to the fifteenth century and held that a rule of customary international law had arisen prohibiting the capture of unarmed coastal fishing vessels. The court famously declared that “international law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for their determination.” This straightforward declaration of the place of customary international law in U.S. law is complicated by the necessity of determining exactly what kind of law it is. Is it state law, general common law, or federal common law?
The Restatement (Third) of the Foreign Relations Law of the United States (1987), while not the last word on the subject, has a lot of authority. Comment d to § 111 says: “International agreements other than treaties and customary international law, while not mentioned explicitly in the Supremacy Clause, are also federal law and as such are supreme over State law. … Customary international law is considered to be like common law …, but it is federal law.”
The Bradley book reviews the ongoing contemporary debate over the status of customary international law in U.S. law. There is a revisionist current of scholarship which has mounted a strong challenge to the standard view that customary international law is federal common law. It is not necessary to resolve this debate to see that foreign relations law is an invaluable component of the FCIL librarian’s toolkit.
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