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