WilmerHale Partner and Chair of the International Arbitration Practice Group Gary Born authored the article, “International Law and American Courts: Ignoring the Framers,” published by The National Law Review. The article examines the treatment of international law in US courts and argues that modern jurisprudence departs from the constitutional framework established by the Framers.

Born analyzes the Supremacy Clause and Article III of the Constitution, explaining that the Framers deliberately incorporated international law—referred to at the time as the “law of nations”—into the Laws of the United States, with binding effect in both federal and state courts. He contrasts that historical understanding with recent Supreme Court decisions that have declined to treat treaties and customary international law as federal law.

“The Supremacy Clause, interpreted as the Framers understood it, requires treating all rules of international law as part of the ‘Laws of the United States,’ with preemptive force in both federal and state courts.”

The article also explores the implications of treating international law as state law for US foreign relations, international commerce and the ability of American courts to address international disputes.

Read the full article here.