Lawfare: RIP Federal Common Law of Foreign Relations?

Common law is developed by precedents rather than specific statutes. Ingrid Wuerth notes for Lawfare that the federal common law of foreign relations is a shrinking field with court interpretations undergoing revisions over the years. “The field was built in part on the claim that customary international law is federal common law and in part on the claim that federal judges should displace state law when they conclude that state law is detrimental to U.S. foreign relations,” she writes. “Today, however, customary international law is generally applied based upon the implied intentions of Congress, rather than as free-standing federal common law.” The courts hold power over immunity determinations, she concludes, noting that federal common law and international law cover foreign sovereign immunity, thus discouraging criminal or civil prosecution of foreign heads of state in the United States. – YaleGlobal

Lawfare: RIP Federal Common Law of Foreign Relations?

The narrow field of sovereign immunity is determined by federal common law as well as international law
Ingrid Wuerth
Sunday, August 19, 2018

Read the article from Lawfare about federal common law and foreign relations.

Ingrid Wuerth is the Helen Strong Curry Professor of International Law at Vanderbilt Law School, where she also directs the international legal studies program. She is a leading scholar of foreign affairs, public international law and international litigation. She serves on the State Department’s Advisory Committee on Public International Law, she is a Reporter on the American Law Institute’s Restatement (Fourth) on U.S. Foreign Relations Law, and she is on the editorial board of the American Journal of International Law. She has won Fulbright and Alexander von Humboldt awards permitting her to spend substantial time in Germany and she is an elected member of the German Society of International Law.


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