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Domestic Courts and Growing NGO Investment in "International Law": At What Cost and Consequence to Democracy?

Increasingly, United States courts are recognizing various treaties, as well as declarations, proclamations, conventions, resolutions, programmes, protocols, and similar forms of inter- or multi-national “legislation” as evidence of a body of “customary international law” enforceable in domestic courts, particularly in the area of tort liability. These so-called “legislative” documents, referred to herein as customary international law outputs (“CILOs”), are seen by some courts as evidence of jus cogens norms that bind not only nations and state actors, but also private individuals. Such enforceability has occurred even where such international CILOs have not been codified or otherwise adopted by Congress.