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Global Law Working Papers
2005 Series
04/05
Ana Peyro Llopis
Global Crystal Eastman Research Fellow (2004-2005)
Associate Professor
Université de Cergy-Pontoise (Paris, France)
"The Place of International Law in Recent Supreme Court Decisions"
Abstract
What role does the main judicial organ of the United States ascribe to international law at a time at which the political branches appear to resent it? During the 2004 term, the Supreme Court made five decisions which addressed questions relating to international law. In these decisions—Republic of Austria v. Altmann, Rumsfeld v. Padilla, Rasul v. Bush, Hamdi v. Rumsfeld and Sosa v. Alvarez-Machain—the Supreme Court had to consider the problem of incorporation of international law in the United States' domestic order. Looking at these decisions, the Court seems to be taking international law considerations into account so far as matters of jurisdiction and the recognition of third state sovereignty are concerned. However, when international law concerns substantive law, its role is weaker. We can find an explanation for this difference when we examine this question in light of American constitutional law. Respect for the intentions of the "political branches," that is, the executive and legislature, play a decisive role in shaping the Court's attitude toward international law.
Contact Author
apeyro@hotmail.com
