Customary International Law is not (exclusively) a Judicial Invention: A final thought on #Jesner

By Tara Van Ho

This is my final post on last week’s Jesner v Arab Bank decision from the US Supreme Court. Earlier posts can be found here (where I critique the Court’s confusion over international criminal law versus international human rights law) and on Nadia Bernaz’s Rights as Usual blog here (where I argue that the law and policy makers need to recognize that corporations are not simply tools for evil, but that their structure can encourage evil).

My final criticism of the Jesner decision is that the Court, and Justice Kennedy in particular, do not evidence a clear understanding of customary international law, how it develops or how it binds states. Kennedy repeatedly suggests that recognizing corporate accountability for breaches of customary international law would be a ‘judicial invention’ that usurps the role of the legislative and executive branches in developing foreign policy. There are reasons particular to US law that may have led Kennedy to suggest that the recognition of existing customary international law standards would still be a ‘judicial invention’ for the purpose of the Alien Tort Statute (ATS) . Those reasons are much more persuasively set out in the Court’s 2004 Sosa v. Alvarez-Machain decision (start reading from Section IV.C) than they are in Jesner. Kennedy’s approach, however, raises questions about how he understands customary international law and its development.

The ATS and the ‘Law of Nations’

As explained in earlier posts, the ATS is a uniquely American statute, giving foreign citizens a right to sue in US federal courts for “a tort only, committed in violation” of customary international law. Kennedy rightly notes that at the time the ATS was adopted, there were very few customary international law standards that could be breached by an individual; the ‘law of nations’ was primarily concerned with the relationship between states.

In reality, the law of nations still remains primarily concerned with commitments between states. But, it now also recognizes that in addition to states, international rights can accrue to both corporations (through international investment law) and to individual persons (through international human rights, humanitarian, and refugee law). Many of these rights that individuals have exist only in treaty law. But some also exist in customary international law.

Kennedy laments that in recognizing corporate liability, the Court would be creating new causes of action under the ATS, something the Court should be “wary of” because it may “imping[e] on the discretion of the Legislative and Executive Branches in managing foreign affairs” (p.12).

This misrepresents the development of customary international law, and what the Court would be doing in recognizing new breaches of customary international law.

Development of Customary International Law

While the content of customary international law has changed since 1789, the means of its formation has not. Customary international law arises when states adopt a consistent practice because of a belief that the practice is legally required (opinio juris). Through their practice and their belief, states consent to the standards imposed on them (I do realize this is a very traditional approach and there are legitimate criticisms to the use of the word ‘consent’ in some, particularly historical, circumstances).

As I teach my students, customary international law is like true love – it requires clear conduct and a clear feeling but it does not require recognition of that conduct or feeling through a single piece of paper. Customary international law can (and does) exist without treaty codification and true love can (and does) exist without the formalization through marriage.

The executive and legislative branches, through their conduct of foreign affairs, are instrumental in developing new customary international law standards. When the US chooses to do or not do something in the conduct of its international affairs, it is adding to the plethora of state practice that informs the existence (or non-existence) of customary international law. This includes the passing of laws and the adoption of treaties, which under US law is part of the remit of the legislature.

When the US makes a statement at the United Nations (executive branch), a submission to an international court or treaty body (executive branch), or clarifies its understanding of customary international law in policy documents or new treaties (executive and legislative branches), it is adding to the opinio juris affecting the creation or non-creation of customary international law.

The recognition or non-recognition of customary international law is quite difficult. It requires (or at least is supposed to require) careful consideration of the practice and belief of a wide range of states representative of the greater international community.

The legislature and the executive therefore play a significant impact in the development of customary international law by exercising their normal foreign affairs functions. They also determine which customary international law standards bind the US. Once customary international law has developed, it binds all states except in the rare instance where a state has persistently objected to the development of the standard. The US knows this because at times it has been a persistent objector – refusing to accept the development of a standard that the rest of the international community recognizes. The US’s persistent objector status is the result of action by the executive and legislative branches in compliance with their Constitutional separation of duties.

But the US legislative and executive branches are not the only ones to participate. While the Court pointed to concerns over the impact of the Jesner suit on foreign relations with Jordan, Jordan’s state practice and opinio juris are also instrumental to the development and recognition of a customary international law standard. The same with the UK, the Netherlands, France, Germany, South Africa, and every other state that has rendered an opinion on the ATS suits as they progressed through the US court systems. These states participated in the formation – or non-formation – of any existing customary international law standard.

Not a Judicial Invention

The relationship between customary international law and the courts that are called upon to enforce customary international law can be complex. At times, courts may be adding to state practice and/or opinio juris by requiring states to act in a certain way while referring to customary international law. At other times, they are simply acknowledging a standard that already exists.

But never should a court engaged with identifying a customary international law norm ‘invent’ it (I’m looking at you, investment tribunals).

Courts on their own do not have such powers.

The recognition of a customary international law standard is about determining what already exists – how the executive and legislative branches of not only the court’s own state, but of a variety of others, understand the law to exist at the time of the dispute.

While the domestic US legal system may have been the lens through which Kennedy understood the issue, how he expressed it suggests he misunderstands the roles of the executive and the legislature in developing customary international law. That’s a problem. US courts have long had their own approach to international law. It is not so far from the more traditional and universal approaches to international law so as to render it unrecognizable, but it often sits outside the norm. With this decision, the US Supreme Court seemed to pull even further away from the rest of the international community.


Disclaimer: The views expressed herein are the author(s) alone.

Image credit: Wikipedia

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