a1. J.D., St.
Louis University; DEA Paris II; DEA Paris X, Nanterre; L.L.M Eur.
Universität Bremen. He teaches international and comparative law
at the Universität Bremen and is currently pursuing a Dr. Iur. I
would like to thank two groups of people instrumental in bringing
this paper to you. First, the teachers at Nanterre particularly
Professors Michel Troper, Christophe Grzegorczyk and, bon gré
malgré, T. Marshall. Second, my editors, Kelly Atherton, Kimberly
Sugawa-Fujinaga and Daniel Hutzenbiler. The former group planted
some seeds in my mind that seem to have taken root. The latter
helped with the harvest. May we all enjoy the fruits of our labor.
1. 96
F.3d
1246 (9th Cir. 1996).
2. Sosa
v. Alvarez-Machain, 124 S.Ct. 2739 (2004).
3. 28
U.S.C.
§ 1350 (2000) reads in whole: "The district courts shall
have original jurisdiction of any civil action by an alien for a
tort only, committed in violation of the law of nations or a
treaty of the United States." The ATS is also referred to as the
Alien Tort Claims Act (ATCA).
4. "A mandatory
norm of general international law from which no two or more
nations may exempt themselves or release one another." Black's Law
Dictionary 712 (7th ed. 1999).
A jus cogens norm is a special
type of customary international law. A jus cogens norm "is a
norm accepted and recognized by the international community of
states as a whole as a norm from which no derogation is
permitted and which can be modified only by a subsequent norm of
general international law having the same character."
Siderman
de Blake v. Republic of Argentina,
965
F.2d
699, 714 (9th Cir. 1992) (quoting
Vienna
Convention on the Law of Treaties, May 23, 1969, art. 53, 1155
U.N.T.S. 331). Most famously, jus cogens norms supported
the prosecutions in the Nuremberg trials. See id. "The universal
and fundamental rights of human beings identified by
Nuremberg--rights against genocide, enslavement, and other
inhumane acts . . . -are the direct ancestors of the universal
and fundamental norms recognized as jus cogens." Sampson v.
Federal Republic of Germany,
250
F.3d
1145, 1149 (7th Cir. 2001). Note, however, that
While jus cogens and customary
international law are related, they differ in one important
respect. Customary international law, like international law
defined by treaties and other international agreements, rests on
the consent of states. In contrast, a state is bound by jus
cogens norms even if it does not consent to their application.
5. See Sosa,
124 S.Ct. 2739.
6. Id. at 2744
("A decision to create a private right of action is better left to
legislative judgment in most cases.").
7. See Black's
Dictionary 459 (9th ed. 2004).
8. Sosa, 124
S.Ct. at 2765 ("[W]e are persuaded that federal courts should not
recognize private claims under federal common law for violations
of any international law norm with less definite content and
acceptance among civilized nations than the historical paradigms
familiar when § 1350 was enacted."). See also U.S. v. Smith, 18
U.S. (5 Wheat.) 153, 163-180 (1820) (illustrating the specificity
with which the law of nations defined piracy).
9. See Black's
Dictionary 459 (9th ed. 2004).
10. Sosa, 124
S.Ct. at 2761-62.
11. Sosa, 124
S.Ct. at 2739.
12. 343
F.3d
140, 151-52 (2d Cir. 2003). The court in Flores points out
that both the ninth and eleventh circuits, following Filartiga v.
Pena-Irala, 630
F.2d
876 (2d Cir. 1980), recognize the ATS as granting a private
cause of action, citing Abebe-Jira v. Negewo, 72
F.3d
844, 848 (11th Cir. 1996) and Hilao v. Estate of Marcos, 25
F.3d
1467, 1475 (9th Cir. 1994). The court further states that
the D.C. Circuit criticized Filartiga in concurring opinions in
Tel-Oren v. Libyan Arab Republic and Al Odah v. United States, 321
F.3d
1134 (D.C.Cir. 2003), rejecting Filartiga's holding that the
ATS creates a private cause of action, citing Al
Odah, 321 F.3d at 1146-47 and Tel-Oren, 726 F.2d at 811, 826,
resulting in a split of authority at the appellate level.
13. 28
U.S.C.
§ 2680(k) (2004).
14. See, e.g.,
Restatement
(Third) of Foreign Relations Law of the United States § 103
cmt. b (1986) (noting the "traditional view that there is no stare
decisis in international law").
15. Blackstone
analyzes the common law as consisting of written law (statutes)
and unwritten law (the common law). See 1 William Blackstone,
Commentaries *69 [hereinafter Commentaries]. Common law is
customary law, whether local or national. Blackstone specifically
considers the maxims of law, which, in civil law, are expressions
of general principles of law, as a possible source of the common
law. Id. However, he rejects the maxims as a source of law,
arguing that they are but expressions of custom and that maxims
are vague and inchoate and must be proven via inquiry into custom.
Id. These maxims of law, however, persist in the common law in
equity and it may be argued that maxims are in fact expressions of
general principles of law, as is the case in the civil legal
systems. Examples of such maxims include: sic utero tuo ut alienum
non laedes. See Bassett
v. Company, 43
N.H.
569, 577 (1862); Swett
v. Cutts, 50
N.H.
439, 442 (1870). Pacta
quae contra leges et constitutiones, vel contra bonos mores sunt
nullam vim habere indubitati Juris est --" Good
morals"--contracts against the constitution or good morals are
void.
Austin's Adm'x v. Winston's Ex'x, 11
Va.
33, 36 (1806). Because the common law, as opposed to
statutory law, is induced from specific cases and not deduced from
general principles, the simpler and better view is Blackstone's.
Maxims and general principles continue to haunt the common law due
to methodological incomprehension of the role of general
principles as deductive instruments in a system of written law
(i.e., the European civilian legal system). Thus in The
Harrisburg, the U.S. Supreme Court quite correctly links the ideas
of "natural equity and the general principles of law." 119
U.S.
199, 206 (1886). Blackstone appears to be the source of the
split on the role of maxims and, by extension, general principles
of law in the common law and civil law. One could accuse
Blackstone of misapprehending the role of general principles in
legal deduction. This may be because he assigns the role of
general principles to ecclesiastical courts, where the general
principles atrophied. See Blackstone, supra note 15, at *83.
16. United
States v. Smith, 18 U.S. 153, 160-61 (1820) (stating that
international law "may be ascertained by consulting the works of
jurists, writing professedly on public law; or by the general
usage and practice of nations; or by judicial decisions
recognizing and enforcing that law"); Lopes
v. Reederei Richard Schroder, 225
F.Supp.
292, 295 (E.D.Pa. 1963). See The
Paquete Habana, 175
U.S.
677, 700 (1900); Filartiga, 630 F.2d at 880. See also State
of the Netherlands v. Federal Reserve Bank, 201
F.2d
455, 461 (2d Cir. 1953).
17. See, e.g.,
Chris
Tollefson, Games Without Frontiers: Investor Claims and Citizen
Submissions Under The Nafta Regime, 27 Yale J. Int'l L. 141,
159 (2002).
18. Brief for
Respondent at 1, United
States v. Alvarez-Machain, 504
U.S.
669 (1992) (No. 03-485). See also Brief for
Petitioner at 1, Sosa v. Alvarez-Machain, 124 S.Ct. 2739 (2004)
(No. 03-485). The Supreme Court joined two cases, United States v.
Alvarez Machain and Sosa v. Alvarez Machain. The former case was
briefed both at the petition phase and on the merits. Ignoring the
briefs at the petition phase we must still look both at the brief
on the merits and the reply briefs. This analysis of the questions
presented is based on the questions presented by the Justice
Department in its brief on the merits in U.S. v.
Alvarez-Machain as that brief seemed to best represent the
numerous complex issues in the cases and the confusion in the
government's positions. In its reply brief in U.S. v.
Alvarez-Machain, the U.S. Department of Justice (DOJ) argued: I.
The drug enforcement administration's arrest of respondent was
authorized, and II. The federal tort claims act exception for
claims arising in a foreign country bars Respondent's lawsuit.
19. Brief for
Petitioner at 1, Sosa (No. 03-485).
20. See
Ker v. Illinois, 119 U.S. 436, 439-40 (1886).
21. See, e.g.,
United
States v. Messina, 566
F.Supp.
740, 744 (E.D.N.Y. 1983) ("[T]he broad authority of the
executive in matters bearing on foreign affairs is not absolute
when constitutional interests are implicated."). Thus, conversely,
when a constitutional interest is not implicated, the Executive's
authority on foreign affairs is absolute.
[P]olitical matters in the realm
of foreign affairs are within the exclusive domain of the
Executive Branch, as, for example, issues for which there are no
available standards or which are textually committed by the
Constitution to the executive. But this is far from saying that
the Constitution vests in the executive exclusive absolute
control of foreign affairs.
22. Customary
law, however, may be overridden by statute.
23. See West
v. Multibanco Comermex, 807
F.2d
820, 824 (9th Cir. 1987); The
Schooner Exchange v. McFaddon, 11 U.S. (7 Cranch) 116 (1812).
See also U.N. Charter art. 2, para. 1; United
Nations Convention Against Illicit Traffic in Narcotic Drugs and
Psychotropic Substances, opened for signature Dec. 20, 1988,
art. II, 28 I.L.M. 493, 500; United
Nations Declaration on Principles of International Law
Concerning Friendly Relations and Cooperation Among States in
Accordance with the Charter of the United Nations, Oct. 24,
1970, 9 I.L.M. 1292, 1296-97; S.S. Lotus (Fr. v. Turk.), 1927 P.C.I.J.
(ser.
A) No. 10, at 18-19 (Sept. 7).
24. See Quinn
v. Robinson, 783 F.2d 776, 795, n.14 (9th Cir. 1986). See
also United Nations Declaration on Intervention, Jan. 14, 1996, 5
I.L.M. 374, 375-76; Regina v. Bow Street Metropolitan Stipendiary
Magistrate and Others, Ex parte Pinochet Ugarte (No. 3) 1 A.C.
147, 154 (House of Lords, 2000); Military and Paramilitary
Activities (Nicar. v. U.S.), 1986
I.C.J. 14, 107 (June 27).
25. See
Universal Declaration of Human Rights, art. IX, G.A. Res. 217A,
U.N. GAOR, 3d Sess., at 71, U.N.
Doc.
A/810 (1948); International Covenant on Civil and
Political Rights, Dec. 19, 1966, 999 U.N.T.S. 171, 175-76. See
also Restatement (Third) of Foreign Relations Law of the United
States § 432-33 (1987).
26. Brief for
the United Mexican States at 937, United States v.
Alvarez-Machain, 504
U.S.
669 (1992) (No. 91-712), in 31 I.L.M. 934 (July
1992).
27. 304
U.S.
64 (1938).
28. See, e.g.,
Xuncax
v. Gramajo, 886
F.Supp.
162, 193 (D.Mass. 1995) ("[I]t is well settled that the body
of principles that comprise customary international law is
subsumed and incorporated by federal common law.").
29. See The
Paquete Habana, 175 U.S. 677, 700 (1900) (stating that
"international law is a part of our law"). See also Hilao
v. Estate of Marcos (In re Estate of Ferdinand E. Marcos, Human
Rights Litigation), 25
F.3d
1467, 1474 (9th Cir. 1994) (stating that previous courts did
not hold that "international law is not part of federal common law
if there are no contradictory federal statutes"); Filartiga
v. Pena-Irala, 630
F.2d
876, 885 (2d Cir. 1980) ("[T]he law of nations... has always
been part of the federal common law.").
30. The Second
Circuit stated that § 1350 provides jurisdiction and gave aliens,
in this instance Muslim and Croat citizens of Bosnia-Herzegovina,
a cause of action against the leader of the Bosnia Serbs for
violations of "the law of nations" and treaties. Kadic
v. Karadzic, 70 F.3d 232, 241-44 (2d Cir. 1995). See Wiwa
v. Royal Dutch Petroleum Co., 226
F.3d
88, 92-93 (2d Cir. 2000). The Ninth Circuit also held that §
1350 gave a district court jurisdiction over the estate of the
former Philippine President Marcos, although all plaintiffs and
defendants were Philippine nationals and although the torts,
alleged to violate international law, occurred entirely in the
Philippines. Trajano v. Marcos (In re Estate of Ferdinand E.
Marcos Human Rights Litigation), 978
F.2d
493, 499 (9th Cir. 1992). See also Hilao v. Estate of Marcos
(In re Estate of Ferdinand Marcos, Human Rights Litigation), 25
F.3d
1467, 1473 (9th Cir.1994); Martinez
v. City of Los Angeles, 141
F.3d
1373, 1383-84 (9th Cir. 1998). The Eleventh Circuit also
held that § 1350 not only confers jurisdiction, but also gives
federal courts the power to "fashion domestic common law remedies
to give effect to violations of customary international law."
Abebe-Jira v. Negewo, 72
F.3d
844, 848 (11th Cir. 1996).
31. See Curtis
A. Bradley & Jack L. Goldsmith, Customary International Law
As Federal Common Law: A Critique of the Modern Position, 110
Harv. L. Rev. 815 (1997).
32. See In
re McKerr (AP) (Northern Ireland) 2 All E.R. 409, 538 (House
of Lords 2004) ("[C]ustomary international law forms part of the
common law of England."). See also The Campaign for Nuclear
Disarmament v. The Prime Minister of the United Kingdom, [2003
C.P. Rep. 28 Q.B.D. (Admin. Ct.).
33. See Suresh
v. Canada (Minister of Citizenship & Immigration),[2000
2 F.C. 592 (Federal Court of Appeals, 2000) ("While
principles of customary international law may be recognized and
applied in Canadian courts as part of the domestic law, this is
true only in so far as those principles do not conflict with
domestic law.").
34. See R.
v. Bonadie, [1996] 109 C.C.C. 3d 356.
35. See id.
36. Langer v.
Commonwealth [No 3 (1996)
186
CLR 302, 309.
37. Beaver-Delta
Machinery Corp. v. Lumberland Building Materials Ltd.,[1985
F.C. 894 ("[P]ronouncements
of the English courts do not constitute binding authority for us
but they may be regarded as persuasively illustrative of common
law principles developing in England, aboriginal home of the
common law which has been received in Canada.").
38. Sosa
v. Alvarez-Machain, 124 S.Ct. 2739, 2757-62 (2004).
39. 4 William
Blackstone, Commentaries *67 (emphasis added) (citation
omitted).
40. "All
necessary changes having been made." Black's Dictionary 1044 (8th
ed. 2004).
41.
Blackstone, supra note 39, at *68 (emphasis added).
42. It is
worth noting that by "law of the land," Blackstone is referring to
the Lex Non Scripta or common law, namely the British
Constitution. Article 39 of the Magna Charta and Article VI,
Clause 2 of the U.S. Constitution speaks of "the law of the land"
as a standard for determining constitutionality. Much of U.S.
Fourth and Fourteenth Amendment jurisprudence in fact belongs in
Article VI. Blackstone is repeating, in my opinion rightly, the
idea of the unwritten constitution. Furthermore this Lex Non
Scripta, which the colonists fought a revolution for, was received
at independence and explicitly incorporated into the Lex Scripta,
or written law, of the U.S. Constitution. A comparison of Article
VI of the U.S.
Const.
and Article 39 of the Magna Charta helps reveal this.
This Constitution, and the Laws
of the United States which shall be made in Pursuance thereof;
and all Treaties made, or which shall be made, under the
Authority of the United States, shall be the supreme Law of the
Land; and the Judges in every State shall be bound thereby, any
Thing in the Constitution or Laws of any State to the Contrary
notwithstanding.
U.S. Const. art. VI, cl. 2.
"No freemen shall be taken or imprisoned or disseised or exiled
or in any way destroyed, nor will we go upon him nor send upon
him, except by the lawful judgment of his peers or by the law of
the land." Magna Charta art. 39.
43.
Blackstone, supra note 39, at *67.
44. Compare U.S. Const. art. VI,
cl. 2., with Magna Charta art. 39.
45.
Blackstone, supra note 39, at *67.
46. See Craft
v. Rice, 671 S.W.2d 247, 250 (Ky. 1984) (finding where
statutory criminal law prohibits harassment, a corresponding
private right of tort exists); Franklin
Music Co. v. American Broadcasting Cos., Inc., 616
F.2d
528, 548 (3d Cir. 1979) (showing historically, the tort of
conspiracy corresponded to crime of conspiracy); Buck v. Oliff,
1990 WL 751239 *2 (Va. Cir. Ct. 1990) (holding that the civil
torts of assault and battery find a corresponding wrong in the
criminal offense of malicious wounding). But see Direct
Lbr. Co. v. West Plywood Co.[1962
S.C.R. 646, affirming [1962 37 W.W.R. 177) (holding
that not all breaches of statutory criminal law create a
corresponding tort action). This apparent conflict can be resolved
by recognizing the distinction between common law crimes and
statutory crimes where common law crimes, barring contrary
statute, necessarily implies common law torts and statutory crimes
possibly imply with corresponding statutory torts.
47.
Blackstone, supra note 39, at *68.
48. Mortimer
Sellers, Ethics and Authority in International Law, 12 Emory
Int'l L. Rev. 1597, 1600 (1998) (book review).
49. "Enemies
of the human race." Black's Dictionary 755 (8th ed. 2004). See,
e.g.,
U.S. v. Smith, 18 U.S. (5 Wheat.) 153, 163-180 (1820).
50.
Blackstone, supra note 39, at *71 ("Lastly, the crime of piracy,
or robbery and depredation upon the high seas, is an offence
against the universal law of society; a pirate being, according to
sir Edward Coke, hostis humani generis.") (citations omitted).
51. See 3
William Blackstone, Commentaries *117.
52. Edward
Coke, The Second Part of the Institutes of the Laws of England
56 (London, W.Clarke and Sons, Law Booksellers 1817), available at
http://oll.libertyfund.org/Texts/LFBooks/Coke0074/PDFs/0462-02_Pt05_
Institutes2.pdf (last visited **
Feb. 11, 2005) ("The law is called rectum, because it discovereth
that which is tort, crooked or wrong, for as right signifieth law,
so tort, crooked or wrong signifieth injurie, and injuria est
contra jus, against right ....").
53. Edward
Coke, The Third Part of the Institutes on the Laws of England 111
(1681), available at http:// dewey.library.upenn.edu/sceti/printedbooksNew/index.cfm?TextID=coke_
insts3&PagePosition=121 (last visited **
Feb. 11, 2004).
54. Id. at
112, available at http://dewey.library.upenn.edu/sceti/printedbooksNew/index.cfm?TextID=coke_insts3&PagePosition=122
(last visited **
Feb. 11, 2004).
55. See Sosa
v. Alvarez-Machain, 124 S.Ct. 2739, 2756 (2004) ("The law
merchant emerged from the customary practices of international
traders and admiralty required its own transnational
regulation.").
56. See, e.g.,
California
v. Sierra Club, 451
U.S.
287, 300 n.3 (1981).
57. See
Restatement (Third) of Foreign Relations Law of the United States
§ 432(2) (1987) ("A
state's law enforcement officers may exercise their functions in
the territory of another state only with the consent of the
other state, given by duly authorized officials of that state.").
See also The Schooner Exchange v. McFaddon, 11
U.S.
116, 136 (1812); The Apollon, 22
U.S.
362, 370-71 (1824); In re Eichmann, Digest of International
Law §§ 208-14 (1961).
58. See Hartford
Fire Ins. Co. v. California, 509
U.S.
764, 814-15 (1993) ("Though it clearly has constitutional
authority to do so, Congress is generally presumed not to have
exceeded those customary international-law limits on jurisdiction
to prescribe.").
59. See Murray
v. Charming Betsy, 6
U.S. 64, 118 (holding that while it is permissible for U.S.
law to conflict with customary international law, where
legislation is susceptible to multiple interpretations, the
interpretation that does not conflict with "the law of nations" is
preferred). See also United
States v. Yousef, 327
F.3d
56, 92 (2d Cir. 2003).
60. The
easiest but most superficial view is simply that customary
international law is part of federal common law. See
Filartiga v. Pena-Irala, 630 F.2d 876, 885 (2d Cir. 1980);
Al Odah v. United States, 321
F.3d
1134, 1146 (D.C.Cir. 2003). That view, while roughly
accurate, requires refinement because of the question of the role
of customary international law in federal common law post-Erie:
After Erie brought an end to
"general federal common law," federal common law has been mostly
interstitial or generated by the need for uniformity throughout
the States. [F]ederal common law of customary international law
is justified by neither consideration. Congress, when it
ratifies treaties, often does so with reservations in order to
avoid altering domestic law. Yet treating customary
international law as federal law would alter domestic law
because of the Supremacy Clause.
Al Odah, 321 F.3d at 1148
(citation omitted).
Several early Supreme Court
decisions explain that customary international law is part of
the law of the United States. During the nineteenth century,
however, this apparently meant that customary international law
was included in the general common law recognized in Swift v.
Tyson. The general common law, unlike the federal common law of
today, did not fall under the Supremacy Clause of the United
States Constitution. Thus, the exact meaning of these early
pronouncements on the domestic role of customary international
law became less certain after the Supreme Court's rejection of a
general common law in Erie R.R. Co. v. Tompkins. One view of
customary international law holds that, post-Erie, it is federal
common law. Another leading view is that customary international
law is "like common law." Under this theory, customary
international law is federal law that can arguably supersede
prior federal statutes.
Thus, a massive lurking issue
briefed by neither party before the Court was the status of
customary international law as a part of the common law after
Erie. The Sosa Court addresses this issue, but not decisively.
In all events, the holding of The Paquete Habana states:
[I]nternational law is part of
our law, and must be ascertained and administered by the courts
of justice of appropriate jurisdiction as often as questions of
right depending upon it are duly presented for their
determination. For this purpose, where there is no treaty and no
controlling executive or legislative act or judicial decision,
resort must be had to the customs and usages of civilized
nations.
The Paquete Habana, 175 U.S.
677, 700 (1900).
This law does not appear to have
been expressly overruled. See
Ahmed
v. Goldberg, Nos. CIV.00-0005, CIV.A.99-0046, 2001 WL
1843390 at *7 (D. N. Mar. I. May 11, 2001) ("[s]ince any treaty
or other international agreement of the United States, and any
applicable rule of customary international law, is federal law
(§ 111), it supersedes inconsistent State law or policy whether
adopted earlier or later."). See also
Harold
Hongju Koh, Is International Law Really State Law?, 111
Harv.L.Rev. 1824, 1835 (1998).
61. Siderman
de Blake v. Republic of Argentina, 965
F.2d
699, 715 (9th Cir. 1992). C.f., Gisbert v. U.S. Atty. Gen.,
988
F.2d
1437, 1448 (5th Cir. 1993), op. amended, 997
F.2d
1122 (5th Cir. 1993) (declining to decide whether jus cogens
supersedes domestic law).
62. U.S.
v. Noriega, 117 F.3d 1206, 1222 (11th Cir. 1997).
63. See, e.g., Steven
R. Swanson, Enemy Combatants and the Writ of Habeas Corpus, 35
Ariz. St. L.J. 939 (2003) ("Choosing
to wrongfully detain an individual may weaken the U.S. position
in the international community and lead to acts of retorsion or
reprisal, even war.").
64. Marks
v. U.S., 28 Ct. Cl. 147 (1893) (stating that retorsions are
retaliatory acts short of war). See also George
K. Walker, The Lawfulness of Operation Enduring Freedom's
Self-Defense Responses, 37 Val. U. L. Rev. 489, 534 (2003)
(stating that "[r]etorsions are unfriendly but lawful acts," such
as mobilizing reserves or recalling ambassadors).
65. The power of reprisal
is explicitly recognized in the U.S. Constitution. "[Congress
shall have the power] to declare War, grant Letters of Marque and
Reprisal, and make Rules concerning Captures on Land and Water." U.S.
Const.
art I, § 3, cl. 11. See also Michael
J. Kelly, Time Warp To 1945--Resurrection Of The Reprisal And
Anticipatory Self- Defense Doctrines In International Law, 13 J.
Transnat'l L. & Pol'y 1, 7 (2003) ("While
acts that constitute reprisals would normally be illegal, they
become legal because of the aggressor's previous illegal act.
Moreover, reprisals contain a distinctly punitive purpose and
are frequently viewed as justified sanctions.").
66. American
Baptist Churches in the U.S.A. v. Meese, 712 F.Supp. 756,
771 (N.D.Cal. 1989) ("Congress is not constitutionally bound to
abide by precepts of international law, and may therefore
promulgate valid legislation that conflicts with or preempts
customary international law."). See, e.g. U.S.
v. Yunis, 681 F.Supp. 909, 916-17 (D.D.C. 1988) (stating
that the permissible actions of law enforcement officers acting
overseas are, however, subject to the U.S. constitution).
67. See Brief
of United States Department of Justice, Sosa v. Alvarez-Machain,
124 S. Ct. 2739 (2004) (No. 03-339). See also Brief of Amici
Curiae Corporate Social Responsibility at *i, Sosa
v. Alvarez-Machain, 124 S. Ct. 2739 (2004) (No. 03-339)
(posing the issue of "Whether the ATS creates a private cause of
action for aliens for torts committed anywhere in violation of the
law of nations or treaties of the United States or, instead, is a
jurisdiction-granting provision that does not establish private
rights of action").
68. "[T]he state has no
inherent right to enforce its criminal laws or restrictions
imposed under those laws outside the United States. Only with the
permission of the foreign country in question may the law
enforcement officers of one country exercise powers in another
one." Williams v. Wisconsin, 336
F.3d
576, 581 (7th Cir. 2003) (citing Restatement (Third) of
Foreign Relations Law § 432(1), (2) (1987)) (citations omitted).
69. Sosa
v. Alvarez-Machain, 124 S.Ct. 2739, 2759 (2004).
70. Id. at 2754.
71. See, e.g., Goldstar
v. United States, 967
F.2d
965, 968 (4th Cir. 1992). But see In
re Estate of Ferdinand Marcos, Human Rights Litigation, 25
F.3d
1467 (9th Cir. 1994) (rejecting the argument that the ATS is
merely jurisdictional).
72. Sosa, 124 S.Ct. at
2755.
73. Id. at 2756-58.
74. Id. at 2755 ("The
fact that the ATS was placed in § 9 of the Judiciary Act, a
statute otherwise exclusively concerned with federal-court
jurisdiction, is itself support for its strictly jurisdictional
nature.").
75. Id. at 2758.
76. See Alvarez-Machain
v. United States, 331
F.3d
604, 631-32 (9th Cir. 2003).
Id. (citation omitted).
77. See Hawkins
v. Comparet-Cassani, 33
F.Supp.
1244, 1255 (C.D. Cal. 1999) ("Federal courts may,
however, imply a private right of action for violations of jus
cogens norms of international law."). See also White
v. Paulsen, 997
F.Supp.
1380, 1383 (E.D. Wash. 1998). The Supreme Court recognizes
that private rights of action may be implied for violations of
federal constitutional rights for which no express statutory right
of action exists. See Bivens v. Six Unknown Named Agents of the
Fed. Bureau of Narcotics, 403
U.S. 388, 392 (1999) (holding that the right to sue federal
agents for damages could be judicially implied from the Fourth
Amendment's prohibition against unconstitutional searches and
seizures). Judicial authority to recognize implied remedies for
violations of constitutional rights applies equally to violations
of jus cogens norms such as those prohibiting genocide, torture,
and slavery. See White, 997 F.Supp. at 1383; Benas v. Baca, No.
CV-00-11507, 2001 WL 485168, at *3 (C.D. Cal. Apr. 23, 2001).
78. Sosa, 124 S.Ct. at
2772 (Scalia, J., concurring in part and concurring in the
judgment) ("Bivens is "a relic of the heady days in which this
Court assumed common-law powers to create causes of action."). See
also Correctional
Services Corp. v. Malesko, 534
U.S.
61, 68 (2001) ("While
Bivens stands, the ground supporting it has eroded. For the past
25 years, "we have consistently refused to extend Bivens
liability to any new context.").
79. 28
U.S.C.
§1350 (2000).
80. See Flores
v. Southern Peru Copper Corp., 343
F.3d
140, 160 (2d Cir. 2003) ("[I]n
order to state a claim under the ATCA, a plaintiff must allege
either a violation of a United States treaty or of a rule of
customary international law, as derived from those universally
adopted customs and practices that States consider to be legally
obligatory and of mutual concern.").
81. 28
U.S.C.
§ 1350 (emphasis added).
82. 28
U.S.C.
§ 1350.
83. 28
U.S.C.
§ 1350.
84. 28
U.S.C.
§ 1350.
85. See Al
Odah v. United States, 321
F.3d
1134, 1146 (D.C.Cir. 2003) (Randolph, J., concurring).
See id. (citation omitted).
86. Sosa
v. Alvarez-Machain, 124 S.Ct. 2739, 2754-61 (2004).
87. See id. at 2765 ("Congress,
however, has not only expressed no disagreement with our view of
the proper exercise of the judicial power, but has responded to
its most notable instance by enacting legislation supplementing
the judicial determination in some detail.").
88. See id. at 2763.
It is true that a clear mandate
appears in the Torture Victim Protection Act of 1991, 106 Stat.
73, providing authority that "establish[es] an unambiguous and
modern basis for" federal claims of torture and extrajudicial
killing. But that affirmative authority is confined to specific
subject matter, and although the legislative history includes
the remark that § 1350 "should remain intact to permit suits
based on other norms that already exist or may ripen in the
future into rules of customary international law." Congress as a
body has done nothing to promote such suits.
Id. (citations omitted).The
argument is well-taken until the last clause. Congress does not
need to authorize the adjudication and enforcement of the laws
that it enacts. What action was the court looking for beyond the
retention of § 1350 and enactment of the Torture Victim
Protection Act?
89. "A
cannon of construction holding that to express or include one
thing implies the exclusion of the other, or of the
alternative." Black's Dictionary 620 (8th ed. 2004).
90. Tucker
v. Alexandroff, 183 U.S. 424, 436 (1902) (holding that
"general principles applicable to the construction of written
instruments" apply to the construction of treaties).
91. "In
logic, disproof of an argument showing that it leads to a
ridiculous conclusion." Black's Dictionary 1305 (8th ed.
2004).
92. Maximov
v. U.S., 299 F.2d 565, 568 (2d Cir. 1962), aff'd, 373
U.S.
49 (1963) (stating that treaty interpretation seeks to "give
the specific words of a treaty a meaning consistent with the
genuine shared expectations of the contracting parties").
See also Volkswagenwerk
Aktiengesellschaft v. Schlunk, 486
U.S.
694, 699-700 (1988) (stating that when interpreting a
treaty, we "begin
with the text of the treaty and the context in which the written
words are used. Other general rules of construction may be
brought to bear on difficult or ambiguous passages").
93. See Branch
v. Smith, 538 U.S. 254, 281 (2003) ("[C]ourts do not
interpret statutes in isolation.").
94. See, e.g., In
re Cross, 662 P.2d 828, 834 (1983) ("[W]here a statute is
susceptible of several interpretations, some of which may render
it unconstitutional, the court, without doing violence to the
legislative purpose, will adopt a construction which will sustain
its constitutionality if at all possible to do so." (quoting State
ex rel. Morgan v. Kinnear, 494
P.2d
1362 (1972))).
95. See, e.g.,
Airline Pilots Ass'n, Int'l, AFL-CIO v. Taca Int'l Airlines, S.A.,
748
F.2d
965, 969 (5th Cir. 1984) (citing United
States v. Lee Yen Tai, 185 U.S. 213 (1902)) ("It
is axiomatic that statutes and treaties are to be interpreted,
to the maximum extent possible, so as to be consistent and
harmonious."); Ali
v. Ashcroft, 213 F.R.D. 390, 405 (W.D. Wash. 2003) ("While
Petitioners may not directly invoke rights under
non-self-executing treaties, or challenge statutes when Congress
has clearly abrogated international law, they certainly may
argue that the Court should adopt the statutory interpretation
that is consistent with international law." (citing Kim
Ho Ma v. Ashcroft, 257
F.3d
1095, 1114 (9th Cir. 2001))).
96. See
Flores v. Southern Peru Copper Corp., 343
F.3d
140, 148 (2d Cir. 2003) ("The intended purpose and scope of
the ATCA never have been definitively established by legal
historians or by the Supreme Court, and the ATCA lacks a
legislative history that could provide courts with guidance as to
its intended meaning.").
97. See Sosa
v. Alvarez-Machain, 124 S.Ct. 2739, 2758 (2004) ("Given
the poverty of drafting history, modern commentators have
necessarily concentrated on the text.").
98. See In
re Koenig Sporting Goods, Inc., 203
F.3d
986, 988 (6th Cir. 2000) ("When
a statute is unambiguous, resort to legislative history and
policy considerations is improper.").
99. 28
U.S.C.
§1350 (2000).
100. See
Torture Victim Protection Act of 1991, Pub. L. No. 102-256, 106
Stat. 73 (1992).
101. See Hunt
v. BP Exploration Co. (Libya) Ltd., 492
F.Supp.
885, 903 (D. Tex. 1980) ("There is a general consensus . . .
that [the law of nations] deals primarily with the relationship
among nations rather than among individuals.").
102. See Abebe-Jira
v. Negewo, 72
F.3d
844, 847 (11th Cir. 1996) ("The
court of appeals... recogniz[ed] the emergence of a universal
consensus that international law affords substantive rights to
individuals and places limits on a state's treatment of its
citizens." (citing Filartiga
v. Pena-Irala, 630
F.2d
876, 880-87 (2d Cir. 1980))). These well-defined, but
limited exceptions include, inter alia, torture, acts of genocide,
war crimes, piracy, and slavery. See Kadic
v. Karadzic, 70
F.3d
232, 240 (2d Cir. 1995) ("Individuals may be held liable for
offenses against international law, such as piracy, war crimes,
and genocide." (quoting Restatement (Third) of the Foreign
Relations Law of the United States pt. II, introductory note
(1986))).
103. See Naoum
v. Attorney Gen. of United States, 300
F.Supp.2d
521, 527 (N.D. Ohio 2004).
Id.
104. See, e.g.,
Flores v. Southern Peru Copper Corp., 343
F.3d
140, 162-63 (2d Cir. 2003) ("A treaty will only constitute
sufficient proof of a norm of customary international law if an
overwhelming majority of States have ratified the treaty, and
those States uniformly and consistently act in accordance with its
principles."). See also U.S.
v. Yousef, 327
F.3d
56, 102 n.35 (2d Cir. 2003).
105. See, e.g., Eastern
Airlines, Inc. v. Floyd, 449
U.S.
530, 536-40 (1991). The Supreme Court, though
methodical in its textual analysis reaches the right result, but
its reasoning is incorrect. The Court's decision was based on the
mistaken notion that the sources of law and their hierarchization
in France are the same as in the United States. That is simply not
the case; both the sources of law and their hierarchical
relationships are different in French and U.S. law. Eastern
Airlines is a perfect example of how courts should try to
determine foreign law via a methodical textual analysis, but the
glaring error of the Court shows us why other courts are reluctant
to attempt to interpret foreign law. But see Rudetsky
v. O'Dowd, 660
F.Supp.
341, 348 (D. N.Y. 1987) (finding the absence of language
barrier factor in favor of determining and applying British law in
U.S. court); Stanley
v. Bertram-Trojan, Inc., No. 89 CIV.8160, 1991 WL 221116, at
*3 (S.D. N.Y. 1991) (finding a similar absence of language barrier
factor in favor of determining and applying Bahama's law in U.S.
court).
106. Inter
se references "a right or a duty owed between the parties,
rather than to others." Black's Dictionary 839 (8th ed.
2004). See U.S.
v. Al-Hamdi, 356 F.3d 564, 575 (4th Cir. 2004) ("Even where
a treaty provides certain benefits for nationals of a particular
state... it is traditionally held that any rights arising from
such provisions are, under international law, those of the [sic]
states and... individual rights are only derivative through the
states." (quoting Matta-Ballesteros v. Henman, 896
F.2d
255, 259 (7th Cir.1990))). What is generally true of
treaties, however, does admit exceptions and is not true of
custom; if Congress finds a customary international law repugnant,
it can legislate against it.
107. See United
States ex. rel. Lujan v. Gengler, 510
F.2d
62, 67 (2d Cir. 1975) ("[I]t
is traditionally held that any rights arising out of such
provisions are, under international law, those of the states
and... individual rights are only derivative through the
states." (quoting Restatement (Second) of the Foreign
Relations Law of the United States § 115, cmt. e (1965))).
108. Brief
of Petitioner, Sosa v. Alvarez-Machain, 124 S. Ct. 2739 (No.
03-339).
109. See Anita
Ramasastry, Corporate Complicity: From Nuremberg to Rangoon an
Examination of Forced Labor Cases and Their Impact on the
Liability of Multinational Corporations, 20 Berkeley J. Int'l.
L. 91, 153 (2002) (stating that erga omnes obligations are
a consequence of general principles of international law); The
Barcelona Traction, Light and Power Company, Ltd. (Belg. v.
Spain), 1970
I.C.J. 3, 32 (1970) (stating that norms erga omnes are
non-derogable duties owed by all states to the international
community and that all states have an interest in the protection
of an erga omnes norm).
110. Siderman de Blake
v. Republic of Argentina, 965
F.2d
699, 715 (9th Cir. 1992) ("In the words of the International
Court of Justice, these norms, which include "principles and rules
concerning the basic rights of the human person," are the concern
of all states; "they are obligations erga omnes." (citing
Barcelona Traction, 1970
I.C.J. at 32)).
111. The concept of erga
omnes norms appears first clearly in Barcelona Traction.
There, the International Court of Justice stated:
Barcelona Traction,
1970
I.C.J. at 32 (citation omitted).
112. See
Eva M. Kornicker Uhlmann, State Community Interests, Jus Cogens
and Protection of the Global Environment: Developing Criteria
For Peremptory Norms, 11 Geo. Int'l Envtl. L. Rev. 101, 106
(1998) ("The relationship among the different kinds of "community
obligations' (jus cogens, erga omnes obligations, international
crime) is still an open issue."). See also Jochen Abr. Frowein,
Obligations Erga Omnes, in 3 Encyclopedia of Public International
Law 757 (1997) ("Although the notions jus cogens and obligations
erga omnes refer to different legal consequences, they are related
to each other in important aspects. A rule from which no
derogation is permitted because of its fundamental nature will
normally be one in whose performance all States must be seen to
have a legal interest.").
113. For an example of a
U.S. court, probably erroneously, subsuming jus cogens into erga
omnes and thus confusing two distinct legal concepts, see Siderman
de Blake, 965 F.2d at 715.
114. See Princz
v. Federal Republic of Germany, 26
F.3d
1166, 1184 (D.C. Cir. 1994) (Wald, J., dissenting) (stating,
in my opinion erroneously, that erga omnes norms and jus cogens
norms are one and the same).
115. Vienna
Convention on the Law of Treaties, May 23, 1969, art. 64, 1155
U.N.T.S. 331 (stating that a jus cogens norm is "a norm
accepted and recognized by the international community of States
as a whole as a norm from which no derogation is permitted and
which can be modified only by a subsequent norm of general
international law having the same character").
116. See Tachiona
v. Mugabe, 234
F.Supp.2d
401, 426 (S.D.N.Y. 2002). See also Karen
Parker & Jennifer F. Chew, Compensation for Japan's World
War II War-Rape Victims, 17 Hastings Int'l & Comp. L. Rev.
497, 524 (1994); Anita
Ramasastry, Corporate Complicity: From Nuremberg to Rangoon an
Examination of Forced Labor Cases and Their Impact on the
Liability of Multinational Corporations, 20 Berkeley J. Int'l L.
91, 154 (2002).
117. See Presbyterian
Church of Sudan v. Talisman Energy, Inc., 244
F.Supp.2d
289, 306 (S.D.N.Y. 2003) ("Violations of jus cogens norms
constitute violations of obligations owed to all ("erga omnes")
(citing Restatement (Third) of Foreign Relations 702 § cmt. o
(1987))). See also The Barcelona Traction, Light and Power
Company, Ltd. (Belg. v. Spain), 1970
I.C.J. 3, 32 (1970)
118. See Restatement
(Third) of Foreign Relations Law of the United States § 702 (1987).
119. See Sampson
v. Federal Republic of Germany, 250
F.3d
1145, 1152 (7th Cir. 2001) ("[J]us
cogens norms do not require Congress (or any government) to
create jurisdiction.").
120. The duty to
extradite or punish criminals is known by the maxim "aut dedere,
aut judicare." In its origins, like jus cogens, aut dedere was a
principle incorporated into extradition treaties. Has it since,
however, grown through widespread usage into customary
international law? The better view, in the interest of the rule of
law, is yes. For an argument in favor of the customary status of
the general principle aut dedere, aut judicare, see M.
Cherif Bassiouni & Edward M. Wise, Aut Dedere, Aut Judicare:
The Duty to Extradite or prosecute in international law (1995).
For an example of aut dedere in a U.S. treaty, see
The Montreal Convention, May 10, 1984 (current version at 18
U.S.C.
§ 32 (2004)).
121. See Barcelona
Traction, 1970
I.C.J. 3.
122. Vienna Convention
on the Law of Treaties, May 23, 1969, art. 53, 1155 U.N.T.S. 331.
123. Id.
124. See United
States v. Smith, 18 U.S. (5 Wheat.) 153 (1820) (holding
individuals liable for acts of piracy in violation of law of
nations).
125. See Respublica
v. DeLongchamps, 1 U.S. (1 Dall.) 111 (1784) (holding
individuals liable in tort for assault on French consular
official).
126. See
Tel-Oren v. Libyan Arab Republic, 726
F.2d
774, 794 (D.C. Cir. 1984).
127. See id. at 816.
Id.
128. See, e.g., Iwanowa
v. Ford Motor Company, 67
F.
Supp. 2d 424, 439-440 (D.N.J, 1999) (expanding the
interpretation of slavery to include forced labor as a subset
thereof; it reached this result by relying on international
conventions, tribunals, and U.S. case law).
129. See, e.g., Regina
v. Bow Street Metropolitan Stipendiary Magistrate and Others,
ex. parte Pinochet Ugarte (No. 3), 1 App. Cas. 147, 154 (2000)
( "During the course of the century the treatment by a state of
its own citizens, at least in certain areas of fundamental
importance, has ceased to be regarded as a matter of internal
affairs. The violation of a norm of jus cogens certainly is not so
regarded.").
130. Attorney
General of Israel v. Eichmann, 36 I.L.R. 18 (Dist. Ct. 1961)
(Isr.).
131.
In re Argoud, 45 I.L.R. 90 (Cour de Cassation 1964) (Fr.).
Thus, Eichmann is not the only case where a national was kidnapped
in a foreign state by a prosecuting state but had no remedy
because the remedy was held by the state where he was kidnapped
from. See also
Brigette Belton Homrig, Comment, Abduction as an Alternative to
Extradition--A Dangerous Method to Obtain Jurisdiction over
Criminal Defendants, 28 Wake Forest L. Rev. 671 (1993). On
this point, although abduction is unpleasant, assassination is
abominable.
132. 117
F.3d
1206, 1222 (11th Cir. 1997).
133. See generally
Henry J. Richardson, Failed States, Self-Determination, And
Preventive Diplomacy: Colonialist Nostalgia And Democratic
Expectations, 10 Temp. Int'l & Comp. L.J. 1 (1996); David
Wippman, Treaty-Based Intervention: Who can say No?, 62 U. Chi.
L. Rev. 607, 619 (1995); Restatement (Third) of Foreign
Relations Law of the United States § 702 cmt. n (1987).
134. See Jianming
Shen, The Non-Intervention Principle and Humanitarian
Interventions Under International Law, 7 Int'l Legal Theory 1,
2-4 (2001) (arguing the principle of non-intervention is a jus
cogens norm); Jeremy Levitt, The Responsibility to Protect: A
Beaver Without a Dam?, 25 Mich. J. Int'l L. 153, 159 (2003)
(reviewing International Commission on Intervention and State
Sovereignty, The Responsibility to Protect) (asserting the
principle of non-intervention is a jus cogens norm).
135. See
Matta-Ballesteros v. Henman, 896
F.2d
255, 259 (7th Cir. 1990) ("[W]here a treaty provides certain
benefits for nationals of a particular state... it is
traditionally held that "any rights arising from such provisions
are, under international law, those of the states and...
individual rights are only derivative through the states."). That
is the general rule, but there are a growing number of exceptions
to that general rule.
136. See Restatement
(Third) of Foreign Relations Law of the United States pt. II,
introductory note (1987) ("Individuals may be held liable for
offenses against international law, such as piracy, war crimes,
and genocide.").
Although international law
generally governs the relationship between nations, and thus a
violation thereof almost always requires state action, it has
been recognized that a handful of particularly egregious
acts--genocide, war crimes, piracy, and slavery--by purely
private actors can violate international law. As of now,
however, only the acts mentioned above have been found to result
in private individuals being held liable under international
law.
Doe v. The Gap, Inc., No.
CV-01-0031, 2001 WL 1842389, at *22 (D. N. Mar. I. Nov. 26,
2001)
137. See The
Paquete Habana, 175
U.S.
677, 708 (1900) (during time of war, fishing vessels are
protected from capture by the law of nations); Ex parte Quirin, 317
U.S.
1, 31 (1942) (engaging in sabotage makes enemy aliens liable
for violations of the laws of war); United
States v. Arjona, 120
U.S.
479, 488 (1887) (counterfeiting foreign government
securities violates the law of nations).
138. See, e.g., Bigio
v. Coca-Cola Co., 239
F.3d
440, 448 (2d Cir. 2000).
139. Brad
J. Kieserman, Profits and Principles: Promoting Multinational
Corporate Responsibility by Amending the Alien Tort Claims Act,
48 Cath. U. L. Rev. 881, 888 n.29 (1999).
Courts apply "color of law"
jurisprudence derived from a domestic civil rights statute, 42
U.S.C. § 1983 (1994), to test for state action in [ATS] claims.
The cases deciding whether private action may be fairly ascribed
to the state "have not been a model of consistency." Application
of § 1983 in corporate [ATS] litigation has been similarly
inconsistent. Compare
Unocal, 963 F. Supp. at 890-91
(finding state action in the absence of any allegations that the
corporate defendant actually committed human rights abuses),
with
Freeport-McMoRan, 969 F. Supp. at 374-80 (finding
no state action although the corporate defendant allegedly
committed human rights abuses and a "close" business
relationship existed between the corporation and the foreign
host-government).
Id. (citations omitted).
140. See, e.g., Aldana
v. Fresh Del Monte Produce, Inc. 305
F.
Supp.2d 1285, 1301 (S.D. Fla.
2003). The court in Aldana stated:
While international law does not
require state action for certain violations such as genocide and
piracy, Plaintiffs have conceded that there must be state action
for the claims asserted in their Third Amended Complaint. Mere
conclusory allegations regarding state action cannot satisfy a
plaintiff's burden under the ATCA.
Id. (citations omitted).
141. See, e.g., Wiwa
v. Royal Dutch Petroleum Co., No. 96 CIV.8386 (KMW), 2002 WL
319887, at *12 (S.D.N.Y. Feb. 28, 2002). To add to the confusion:
though it seems clear the court is thinking in terms of jus cogens
- namely that for jus cogens violations, no showing of state
action is required - the court does not seem to clearly state,
perhaps because of uncertainty as to which provisions of law are
jus cogens and how to hierarchize jus cogens norms.
142. Some courts get the
issue right despite the confusion. For example, in
Tel-Oren
v. Libyan Arab Republic, Judge Edwards, correctly, did not
impose a state action requirement on international law. He held
that piracy, the slave trade, and "a handful of other private
acts" are violations of international law by private actors. 726
F.2d 774, 794 (1984) (Edwards, J., concurring). Judge Bork also
noted that international law prohibited private acts such as
piracy and interference with ambassadors. Id. at 813-15 (Bork, J.,
concurring).
143. See, e.g., Kadic
v. Karadzic, 70
F.3d
232, 239 (2d Cir. 1995).
We do not agree that the law of
nations, as understood in the modern era, confines its reach to
state action. Instead, we hold that certain forms of conduct
violate the law of nations whether undertaken by those acting
under the auspices of a state or only as private individuals. An
early example of the application of the law of nations to the
acts of private individuals is the prohibition against piracy.
In The Brig Malek Adhel, the Supreme Court observed that pirates
were "hostis human generis' (an enemy of all mankind) in part
because they acted "without... any pretense of public
authority." Later examples are prohibitions against the slave
trade and certain war crimes.
Id. (citations omitted).
144. Brief
for Petitioner at 1, Sosa v. Alvarez-Machain, 124 S.Ct. 2739
(2004) (No. 03-339).
145. United
States v. Lester, 363
F.2d
68, 72 (6th Cir. 1966) (citing United
States v. Gooding, 25
U.S.
460 (1827), cert. denied, 385
U.S.
1002 (1967).
146. See Alvarez-Machain
v. United States, 331
F.3d
604 (9th Cir. 2003). But see United
States. v. Noriega, 117
F.3d
1206, 1222 (11th Cir. 1997); Restatement (Third) of Foreign
Relations Law of the United States § 432(2) (1987).
147. Paul
Michell, English-Speaking Justice: Evolving Responses to
Transnational Forcible Abduction After Alvarez-Machain, 29
Cornell Int'l L.J. 383, 421 n.195 (1996) (enumerating cases
where lack of effective government precluded objection to
abduction).
148. See
Sosa v. Alvarez-Machain, 124 S.Ct. 2739, 2744 (2004).
[T]he prevailing conception of
the common law has changed since 1790. When §1350 was enacted,
the accepted conception was that the common law was found or
discovered, but now it is understood, in most cases where a
court is asked to state or formulate a common law principle in a
new context, as made or created. Hence, a judge deciding in
reliance on an international norm will find a substantial
element of discretionary judgment in the decision.
Id.
149. Nous, the Greek
word for cognition, is used here as an abbreviation for inductive
synthesis or deductive analysis coupled with the presumption that
such synthesis or analysis is a reflection of an eidetic world of
pure thought existing somehow independently of the material world.
The adjective is noetic; a related noun form is noesis. Eidos, the
ancient Greek word for form, is the root of the English word
eidetic.
150. Aristotle,
Physics 192b:7-8 (R.P. Hardie & R.K. Gaye trans.), in 1
The Complete Works of Aristotle 329 (Jonathan Barnes ed., rev.
Oxford trans., Princeton Univ. Press 1984) ("Of things that exist,
some exist by nature, some from other causes.").
151. Aristotle,
On the Universe 392a:31-5 (E.S. Forster trans.), in 1 The
Complete Works of Aristotle 628 (Jonathan Barnes ed., rev. Oxford
trans., Princeton Univ. Press 1984).
152. See Aristotle,
Nicomachean Ethics of Aristotle 117 (D.P. Chase trans.,
Ernest Rhys ed., J. M. Dent & Sons Ltd., 1911) (1920) ("Nay,
we may go further, and say that it is practically plain what
among things which can be otherwise does exist by nature, and
what does not but is dependent upon enactment and conventional,
even granting that both are alike subject to be changed.").
153. See id. ("Further,
this last-mentioned Just is of two kinds, natural and
conventional; the former being that which has everywhere the
same force and does not depend upon being received or not; the
latter being that which originally may be this way or that
indifferently but not after enactment.").
154. Id.
155. See William
Shakespeare, The Merchant of Venice act 2, sc. 2 ("[M]urder cannot
be hid long; a man's son may, but at the length truth will out.").
156. Aristotle, supra
note 152, at 105.
Id.
157. See id. at 108.
158. See The Works of
Aristotle Translated into English, Politics, Book II, Ch. V,
1263b-1264a (Benjamin Jowett ed., Oxford Univ. Press 1966).
Id.
159. Alexander Hamilton
described Athens as a commercial republic. See
The Federalist No. 23 (Alexander Hamilton) ("Athens,
unlike Sparta, was a bustling city-state where trade, commerce
and the arts flourished."). See also Eugene
R. Milhizer, Justification And Excuse: What They Were, What They
Are, And What They Ought To Be, 78 St. John's L. Rev. 725,
743 (2004).
160. See The Complete
Works of Aristotle, The Revised Oxford Translation 1785 (Jonathan
Barnes ed., Princeton University Press (1984).
[I]f they are not equal, they
will not have what is equal, but this is the origin of quarrels
and complaints-when either equals have and are awarded unequal
shares, or unequals equal shares. Further, this is plain from
the fact that awards should be "according to merit"; for all men
agree that what is just in distribution must be according to
merit in some sense, though they do not all specify the same
sort of merit, but democrats identify it with the status of
freeman, supporters of oligarchy with wealth (or with noble
birth), and supporters of aristocracy with excellence.
Id.
161. See Aristotle,
Nicomachean Ethics of Aristotle 107 (D.P. Chase trans.,
Ernest Rhys ed., J. M. Dent & Sons Ltd., 1911) (1920) ("[F]or
all agree that the Just in distributions ought to be according
to some rate: but what that rate is to be, all do not agree; the
democrats are for freedome, oligarchs for wealth, others for
nobleness of birth, and the aristocratic party for virtue.").
162. See id. at 113 ("[M]oney
has come to be, by general agreement, a representative of
Demand: and the account of its Greek name [nomisma] is this,
that it is what it is not naturally but by custom or law
([nomos]), and it rests with us to change its value, or make it
wholly useless.").
163. Id. at 108-11.
And
the remaining one is the Corrective... [T]he Just which arises
in transactions between men is an equal in a certain sense,
and the Unjest an unequal, only not in the way of that
proportion but of arithmetical. Because it makes no difference
whether a robbery, for instance, is committed by a good man on
a bad or by a bad man on a good, nor whether a good or a bad
man has committed adultery: the law looks only to the
difference created by the injury.... [T]his Unjust, being
unequal, the judge endeavours to reduce to equality again,
because really when the one party has been wounded and the
other has struck him, or the one kills and the other dies, the
suffering and the doing are divided into unequal shares; well,
the judge tries to restore equality by penalty, thereby taking
from the gain.... So then the Just we have been speaking of is
a mean between loss and gain arising in involuntary
transactions that is, it is the having the same after the
transaction as one had before it took place.
Id.
164. See Thomas
Hobbes, Leviathan 91 (Richard Tuck ed., Cambridge
University Press) (1996).
Id.
165. See id.
A
law of nature, (Lex Naturalis,) is a Precept, or general Rule,
found out by Reason, by which a man is forbidden to do, that,
which is destructive of his life, or taketh away the means of
preserving the same: and to omit, that, by which he thinketh
it may be best preserved. For though they that speak of this
subject, use to confound Jus, and Lex, Right and Law; yet they
ought to be distinguished; because RIGHT, consisteth in
liberty to do, or to forbear; whereas LAW, determineth, and
bindeth to one of them: so that Law and Right, differ as much,
as Obligation, and Liberty; which in one and the same matter
are inconsistent.
Id.
166. Oliver
Wendell Holmes, The Path of the Law, 110 Harv. L. Rev. 991,
993 (1997) (Reprint of address Justice Holmes of the Supreme
Judicial Court of Massachusetts delivered at the dedication of the
new hall of the Boston University School of Law on Jan. 8, 1897).
167. See Thomas Hobbes,
Leviathan 88-89 (Richard Tuck ed., Cambridge Univ. Press 1996)
(1651).
Id.
168. See The Works of
Aristotle Translated into English, Politics,
Book I, 1253a (Benjamin Jowett ed., Oxford Univ. Press
1966) ("The
proof that the state is a creation of nature and prior to the
individual is that the individual, when isolated, is not
self-sufficing; and therefore he is like a part in relation to
the whole.").
169. See id. at 1252b ("[M]an
is by nature a political animal."). See also id. at 1253a ("A
social instinct is implanted in all men by nature.").
170. The Court in Sosa
also reiterates the U.S. view on the sources of international law
found in The Paquette Habana:
171. See Sosa, 124 S.Ct.
at 2760.
Id.
172. See id. at 2762.
When § 1350 was enacted, the
accepted conception was of the common law as "a transcendental
body of law outside of any particular State but obligatory
within it unless and until changed by statute." Now, however, in
most cases where a court is asked to state or formulate a common
law principle in a new context, there is a general understanding
that the law is not so much found or discovered as it is either
made or created.
Id. (citations omitted).
173. 304
U.S.
64 (1938).
174. See Sosa, 124 S.Ct.
at 2762 ("Erie R. Co. v. Tompkins... was the watershed in which we
denied the existence of any federal "general" common law... which
largely withdrew to havens of specialty, some of them defined by
express congressional authorization to devise a body of law
directly.").
175. See id. at 2771
(Scalia, J., concurring in part and concurring in the judgment) ("Because
post-Erie federal common law is made, not discovered, federal
courts must possess some federal-common-law-making authority
before undertaking to craft it.").
176. See William
Shakespeare, The Merchant of Venice act 2, sc. 2 ("[M]urder cannot
be hid long; a man's son may, but at the length truth will out.").
177. See Sosa, 124 S.
Ct. at 2765-66.
Id. (citations omitted).
178. See id. at 2771
(Scalia, J., concurring in part and concurring in the judgment).
Id. (citations omitted).
179. U.S.
Const.
amend. IX ("The
enumeration in the Constitution, of certain rights, shall not be
construed to deny or disparage others retained by the people.").
180. "When in doubt,
freedom." (author's translation).
181. Notwithstanding the
expedient, if not opportunist, decisions of the court, there is a
general federal common law, as the United States is a successor
state to the British crown, having fought a revolution to
guarantee the common law liberties of its citizens
182. Aristotle was also
the source of the idea of courts of equity, of cause-in-fact,
efficient causality, and of a few other ideas such as botany,
grammar and logic.
183. "From what comes
after." Black's Dictionary 105 (8th ed. 2004).
184. "From what is
before." Id. at 111.