I, Too, Sing America: Customary International Law for American State and Federal Courts' Post-Kiobel Jurisprudence, Guided by Australian and Indian Experiences

Authors

Katherine M. Davis

Abstract

Kiobel v. Royal Dutch Petroleum Co. re-ignited American discussions on customary international law (CIL). Outside the Alien Tort Statute, however, CIL authority in American courts remains unresolved and seemingly at odds with federalism. Debates are polarized between theories that CIL is binding domestic law and that CIL has no authority without enacting legislation. Seeking resolution, Katherine M. Davis assesses state and federal court decisions on CIL from fellow federal nations India and Australia. Indian and Australian jurisprudence offer three insights. First, as India and Australian courts harmoniously interpret CIL in various fashions, American solutions need not be as extreme as some suggest. Second, India's and Australia's limited embrace of CIL indicate that what many deem 'American exceptionalism' from international law may not be so exceptional after all'rather, a necessary function of federalism. Finally, drawing from an Indian state court, Davis suggests importing the CIL-equivalent of a Charming Betsy canon.

Recommended Citation

Katherine M. Davis, I, Too, Sing America: Customary International Law for American State and Federal Courts' Post-Kiobel Jurisprudence, Guided by Australian and Indian Experiences, 29 Emory Int'l L. Rev. 119 (2014).
Available at: https://scholarlycommons.law.emory.edu/eilr/vol29/iss1/4