Bederman: Law of the Land, Law of the Sea: The Lost Link Between Customary International Law and The General Maritime Law

David J. Bederman (Emory Univ. - Law) has posted Law of the Land, Law of the Sea: The Lost Link Between Customary International Law and the General Maritime Law (Virginia Journal of International Law, forthcoming). Here's the abstract:

This Article proposes a different way of thinking about the question of whether customary international law is the "law of the land." It looks back to the nineteenth century and to the once-parallel treatment of customary international law and general maritime law, finding that the two were linked closely by the end of the century. But, in the twentieth century, their treatment diverged dramatically as Supreme Court decisions "constitutionalized" the general maritime law and did not do the same for customary international law. General maritime law is supreme under Article VI of the Constitution and preempts contrary state law, but it does not automatically allow matters arising under it to be characterized as federal questions. This Article proposes that customary international law be re-linked to general maritime law and share both its status as "law of the land" and its implied preemption of state law.