International Law and US Courts: The Myth of Lohengrin Revisited

Andrea Bianchi ^*

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Abstract

This paper attempts to shed light on the current attitude of US courts towards international law. Regardless of the formal instruments of incorporation, the extent to which international law is used by courts within the formal constraints of constitutional provisions largely depends on the legal culture prevailing at any particular time. This sketchy and selective overview of the attitude of US courts unveils a tendency to frame international law within the general framework of the constitutional law discourse. The main tenets of American constitutionalism such as separation of powers and federalism often shape the posture of courts in determining issues bearing on international law. The different nature of international law and its potentially pervasive effects on domestic law are frequently a cause for US courts to reject its proper implementation. At the base of this attitude, which seems to be the prevailing one at the moment, lies the perception that the fundamental postulates of the domestic legal order, as enshrined in the Constitution, cannot be altered by a body of law which does not exclusively emanate from the national societal body.

^* Professor of International Law, Graduate Institute of International Studies, Geneva, and the Catholic University, Milan.

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