Saikrishna Prakash, The Constitutional Status of Customary International Law (February, 22 2010). Virginia Public Law and Legal Theory Research Paper. Available at SSRN: http://ssrn.com/abstract=1557190
This short piece suggests that if Customary International Law is law at all, it is not so because the Constitution makes it so. While many individuals had a commitment to the “law of nations,” their personal commitment was not made part of the Constitution. Neither the Supremacy Clause nor the Faithful Execution Clause are best read as covering Customary International Law. When people spoke of the law of nations as law for the United States, they were referring to an extraconstitutional, natural law principle. Because the Constitution does not itself incorporate this particular view of the law of nations, people can maintain their fidelity to the Constitution and still reject the notion that Customary International Law is (or should be) law for the United States.
