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Cite as: Eric Allen Engle, Alvarez Machain v. United States and Alvarez Machain v Sosa: The Brooding Omnipresence of Natural Law, 13 Willamette J. Int'l L. & Disp. Resol. 149 (2005).

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I. Introduction. 150

A. The issues presented to the Supreme Court in Sosa. 152

B. The unsettled issues which caused the Sosa Court to grant certiorari. 154

1. What substantive law is to be applied?. 154

2. Does the ATS only apply to violations of jus cogens?. 155
II. Practical Analysis: The issues the Justice Department and its Agent Sosa presented. 156

A. "Whether federal law enforcement officers, and agents of the Drug Enforcement Administration in particular, have authority to enforce a federal criminal statute that applies to acts perpetrated against a United States official in a foreign country by arresting an indicted criminal suspect on probable cause in a foreign country." . 156

1. Customary International Law prohibits abduction by one State of any person in another State absent consent of that State. 157

2. Customary International Law as part of the Common Law. 158

a. Comparative Law. 159

b. Legal History. 160

i. Blackstone. 160

ii. Coke. 162

3. The Government's abduction, while illegal under International Law, may have been legal under national law if a statute had displaced the customary law. In all events, the Government's abduction was Constitutional. 164

B. "Is the Alien Tort Statute solely a grant of jurisdiction, or does it provide a cause of action for aliens who are victimized by tortious violations of international law?" . 167

C. "If it is proper to imply or create a cause of action under the ATS, whether those actions should be limited to suits for violations of international legal norms to which the United States has assented." . 174

1. Plain Meaning Argument. 176

2. Historical Argument. 176

3. Systemic Argument.. 177

4. Individual Rights under International Law. 178

a. Abduction. 178

b. State Action. 179
III. Theoretical Synthesis: The natural law/positivism dichotomy in Sosa. 183

A. The false dichotomy of positivism and naturallaw. 184

1. Aristotle. 184

2. Hobbes. 187

B. The implications of re-cognizing the false dichotomy of "naturalism v. positivism" . 190

C. Examining the ATS in light of the false dichotomy. 192
IV. Conclusion. 193

1. Aristotle and Hobbes. 194

2. Sosa and Machain. 195


*150 I. Introduction

A criminal combination kidnaps and tortures a DEA agent in Mexico. A physician, Dr. Alvarez, is suspected of having worked as an agent of the criminal combination. Namely, he is believed to have acted to keep the captive DEA agent alive so that the agent can be tortured further. Consequently, the United States procures the kidnapping of Dr. Alvarez. Let us presume that the kidnapping only involved a brief detention and little violence. Clearly, the kidnapping is in violation of international law, and Mexico has a right to a remedy against the United States. Does Dr. Alvarez have a right to compensation in tort from the United States?

Such, in sum, are the facts of the cases of Alvarez-Machain v. United States, 1 and Alvarez-Machain v. Sosa, 2 which address some of the difficult issues in universal jurisdiction before U.S. courts. Based on a painstaking textual and historical analysis, the Supreme Court reached an intellectually honest and logically defensible conclusion to the substantive law: in limited cases the Alien Tort Statute (ATS) 3 provides a *151 remedy before U.S. courts for tortious violations of international law - possibly only for cases of violations of jus cogens 4 norms, but at least for such heinous violations of international law. 5 The Supreme Court in Sosa reached a principled and prudential decision of restrained judicial activism. 6 The Court explicitly stated the international laws which could be the basis of a claim under the ATS must be clearly determined existing norms or de lege lata 7 and not emerging norms of international law 8 or de lege ferenda. 9

Unfortunately, the Court did not use these Latin terms of international law. The Court did however, specifically uphold the decision of Filartiga v. Pena Irala: 10 International law for the Alien Tort Statute must not be understood as frozen in time in 1789, when the ATS was enacted, but rather as evolving over time. If the Court's neo-formalist result was a perfect example of judicious equipoise; balancing implicitly the conflict between presidential power and individual liberty, and a minor victory for human rights, it was built on the quicksand of a *152 false dichotomy between natural law and positivism - a dichotomy which has needlessly bedevilled legal scholarship in the last century.

In Part I, the Introduction outlines the issues presented, the issues the Court decided, the unsettled issues which caused the Sosa Court to grant certiorari, and the issues the U.S. Justice Department and the Court ignored. Part II consists of a practical legal analysis of the exact issues the U.S. Justice Department and its agent Sosa presented to the Supreme Court in Sosa. Part II includes both a comparative law analysis, examining other common law jurisdictions, and a historical analysis based on the writings of Blackstone and Coke to help determine the meaning torts in violation of the law of nations. Finally, in Part III, I present a theoretical synthesis of the implications of the false dichotomy of positivism and natural law by looking at Aristotle and Hobbes. Aristotle and Hobbes both show that the supposed dichotomy of natural law and positivism does not in fact exist. Consequently, the presumption that the Court in Sosa makes is wrong. The court presumes that it cannot engage in a holist analysis of the common law and international law to develop synergies between them in the interest of justice. Thus, the Court concludes it must limit the future interpretations of the ATS to existing positive law (de lege lata) and cut off any normative application of international law (de lege ferende). However, since the main premise of the Court, that natural law does not exist, or is inevitably vague, inchoate, prescientific, or otherwise flawed, is wrong, the consequence of that premise, that the court cannot theologically interpret normative content into the ATS, is not only no longer inevitable, it is downright questionable. The Court thus continues to follow a failed heuristic that has plagued it since Erie, which was also wrongly decided. The failure of the Court to understand that positive law and natural law complement each other as parts of a unified theory of justice is due to the Court's ignorance of Aristotle. A proper understanding of Aristotle's theory of justice and of his theory of teleological interpretation would enable the Court to do exactly what it claims it cannot: Lead the World in the defense of Human Rights.


A. The issues presented to the Supreme Court in Sosa

The Justice Department presented the following questions to the Supreme Court: 11 (1) Whether federal law enforcement officers, and agents of the Drug Enforcement Administration in particular, have authority to enforce a federal criminal statute applying to acts perpetrated *153 against a U.S. official in a foreign country by arresting an indicted criminal suspect on probable cause in a foreign country? That is, in plain language, whether the U.S. executive may exercise jurisdiction to enforce overseas, in violation of the law of nations and in violation of the law of foreign states. (2) Whether the Alien Tort Statute creates a private cause of action allowing aliens redress 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. (3) Whether the actions the ATS authorized are limited to suits for violations of jus cogens norms of international law. (4) Whether Dr. Alvarez' abduction constitutes a tort in violation of the law of nations actionable under the ATS.

Both cases reached the Supreme Court because of split decisions in the circuit courts over some of these issues, which are very well summarized in Flores v. Southern Peru Copper Corp. 12 The Court was also asked to decide whether the Federal Tort Claims Act would bar an action for false arrest due to the fact that the FTCA bars "[a]ny claim arising in a foreign country. . . ." 13 This paper does not address that issue but briefly discusses the remaining four.

To a certain extent, the Justice Department miscast the issues before the Court. This may be due to a basic misunderstanding or ignorance of principles of international law and the history of the common law vis- -vis international law. Common law lawyers often misunderstand international law because the sources of law, their hierarchization, and the methods used to derive and apply them are not the same in international law and the common law. In fact, international law resembles the national legal structure of pre-codification civilian legal systems. This means stare decisis is not a rule of international law, 14 and case law has no binding precedential value, but may be persuasive evidence of the law. Conversely, general principles of law, a key *154 element of civilian legal systems and international law, are not a source of law in the common law. 15 Scholarly writings in international law are a source of law; 16 however, in the common law, legal scholarship is at best merely persuasive. Finally, concepts proper to international law do not necessarily have corresponding concepts in domestic law and vice versa. 17


B. The unsettled issues which caused the Sosa Court to grant certiorari

Though some issues in Sosa were miscast by the Justice Department, there were important issues undecided prior to Sosa: First, what substantive law applies under the ATS? Second, does the ATS only remedy violations of jus cogens?

1. What substantive law is to be applied?

Prior to Sosa, it was not determined whether the ATS itself created *155 a new independent cause of action under U.S. law, in addition to permitting claims under international law to be heard before U.S. courts or instead, whether it merely permitted U.S. courts to take jurisdiction as to tortious violations of international law. The Supreme Court rightly took the second view. However, the Justice department attempted to argue, unconvincingly, that the ATS did not contain any substantive element at all, whether under national or international law. That argument, which the court rejected, seems spurious, as a plain text reading of the statute and a consideration of its history reveal. This was not the only unanswered question compelling the Supreme Court to hear the Sosa case. Another issue, still explicitly unresolved, is whether the ATS only applies to jus cogens norms, or in the better view, whether it also applies to ordinary rules of international law.

2. Does the ATS only apply to violations of jus cogens?

The Supreme Court did not directly answer whether the ATS only applies to violations of jus cogens. The Court does imply, however, that jus cogens claims will be heard and that they may also be the only claims it hears.

Although the Supreme Court reached proper results on the merits, the Justice Department miscast the issues; consequently, the court missed an opportunity to dispel more confusion. Worse, because the issues were not properly presented, the court unknowingly choked on a false dichotomy of "natural law versus positivism." I discuss the issues as presented and the proper presentation to rectify some of the misunderstandings. In the first half of the paper, "Practical Analysis," I examine the issues presented to the court. In the second half, "Theoretical Synthesis," I look at the theoretical framework within which the court determined its answers to these questions.


*156 II. Practical Analysis: The Issues the Justice Department and its Agent Sosa Presented


A. "Whether federal law enforcement officers, and agents of the Drug Enforcement Administration in particular, have authority to enforce a federal criminal statute that applies to acts perpetrated against a United States official in a foreign country by arresting an indicted criminal suspect on probable cause in a foreign country." 18

The Government's brief in Sosa miscasts the legal issues in a desire to compel its desired outcome. It states the issue as: "Whether federal law enforcement officers, and agents of the Drug Enforcement Administration in particular, have authority to enforce a federal criminal statute that applies to acts perpetrated against a United States official in a foreign country by arresting an indicted criminal suspect on probable cause in a foreign country." 19 The issue ignores the fact that the arrest was illegal under international law as an invasion of Mexico's sovereignty. Nor does the government consider the legality of abduction under international law. Finally, the government does not present the issue in terms of its jurisdiction to enforce.

The government could have presented the issue as whether the U.S. executive branch may, through its police power, constitutionally exercise jurisdiction to enforce overseas in violation of the law of nations and the law of foreign states. Perhaps surprisingly, the honest quick answer to this question is "yes." 20

The government's temerity here was unnecessary; ironically, miscasting the issue deprived the Court of a chance to affirm the self-help rights of the United States under international law with regard to fugitives. The power of the executive to conduct foreign policy, within *157 the limits of the Constitution, is exclusive and nearly, in the Hobbesian sense, despotic. 21 Thus, an exercise of jurisdiction to enforce overseas is constitutionally permissible, though such exercise is illegal under customary international law. Yet, the constitutionally permissible exercise of jurisdiction to enforce overseas, if illegal under international law, may also be illegal in national law for, absent contrary statute, customary international law is a part of the common law. 22 To reiterate, international law prohibits abduction of any person by a state. Customary international law is one element of the common law. However, as to conflicts between the constitution and ordinary laws, whether customary (and here is where international law enters the picture) or statutory, the constitution shall control.

1. Customary International Law prohibits abduction by one State of any person in another State absent consent of that State

Under international law it is clear that the United States, as the cause of Alvarez-Machain's kidnapping, acted contrary to well-established principles of international law. Specifically, the U.S.-instigated kidnapping violated at least the principles of sovereign equality of nations, 23 the principle of non-intervention, 24 and perhaps, also a norm against arbitrary arrest and detention. 25 The U.S. abduction *158 of Alvarez-Machain was illegal under international law and likely under Mexican law as well. Mexico strenuously protested the illegal but possibly constitutional act. 26 The illegality of an unconsented exercise of jurisdiction to enforce on foreign territory under international law as an invasion of another state's sovereignty is obvious. However, that entails the less obvious conclusion that - barring contrary statute - unconsented extraterritorial abduction is also illegal in U.S. common law because customary international law is a part of the common law. Essentially, the President requires Congress' permission to legally violate international law, at least as to the unlawful exercise of jurisdiction to enforce - here, abduction.

2. Customary International Law as part of the Common Law: The kidnapping of Alvarez-Machain was illegal under Common Law

The Sosa Court addressed this issue, the role of international law in the common law, only indirectly in its discussion of federal common law post-Erie. However, due to the confusion Erie R.R. Co. v. Tompkins generated, 27 that issue persists and was in no way settled or even directly addressed by the Sosa court.

At least prior to the destruction of the World Trade Center, it was well-settled 28 that customary international law was a part of the common law in the United States 29 and the basis of claims for violations of the ATS. 30 If customary international law is part of the common law, then *159 absent contrary statute the United States also violated its own domestic law in abducting Alvarez-Machain.

Professors Curtis A. Bradley and Jack L. Goldsmith recently questioned this well-settled fact that customary international law is an integral part of the common law, arguing erroneously that the idea of customary international law as a part of U.S. common law is a modern position. 31 Thus, a discussion of history and comparative law is necessary to demonstrate what should be obvious: customary international law is a part of the common law.

a. Comparative Law: Customary International Law is an integral part of the Common Law in Britain, Canada, and Australia

Legal history reveals the obvious fact that common law, based on customary law, includes customary international law. Furthermore, looking at the practice of other common law jurisdictions confirms this fact. Customary international law is an integral part of the common law of England 32 and a part of Canadian national common law as well. 33 In Canada, treaties require an enabling act to operate domestically; 34 however, customary international law is part of the common law and requires no enabling act--it is directly effective. 35 This is also the case in Britain, Australia, 36 the United States, and likely all other common law jurisdictions. This is understandable, as Canada, like the United States and other former British dominions, received British common *160 law. 37 So the idea of customary international law as one element of the common law is hardly idiosyncratic. To gain insight into the meaning of the ATS and to answer whether this is a "modern position," I briefly examine legal history.

b. Legal History: Customary International Law has been part of the Common Law for centuries

The Court in Sosa correctly looks at legal history, including the works of learned scholars such as Blackstone, to determine the content of the ATS. 38 Its analysis of Blackstone, though cursory, cannot be called superficial. However, it could have also gone further. Accordingly, let us extend this analysis and also consider the writings of Coke. Both Coke and Blackstone regarded customary international law as an integral part of the common law - namely, as another element of customary law.

i. What Blackstone can tell us about the ATS

Understanding the ATS requires serious examination of Blackstone. As the leading legal commentator at the time the ATS was drafted, he was almost certainly known by the authors of the ATS. Blackstone tells us exactly what "the law of nations" (jus gentium) is:

The law of nations is a system of rules, deducible by natural reason, and established by universal consent among the civilized inhabitants of the world; in order to decide all disputes, to regulate all ceremonies and civilities, and to insure the observance of justice and good faith, in that intercourse which must frequently occur between two or more independent states, and the individuals belonging to each. 39 What was true when Blackstone wrote remains, mutatis mutandis, 40 true today: the law of the nations generally regulates only state conduct vis-à-vis other states but, exceptionally, governs individual conduct as well. This is because "offences against the law of nations can rarely be the object of the criminal law of any particular state. For offences against this law are principally incident to whole states or nations . . . ." 41
Even more importantly, Blackstone notes that customary *161 international law is an integral part of the common law - a perfectly logical position, since the common law is but customary law:

In arbitrary states this law [i.e., the law of nations], wherever it contradicts or is not provided for by the municipal law of the country, is enforced by the royal power: but since in England no royal power can introduce a new law, or suspend the execution of the old, therefore the law of nations (wherever any question arises which is properly the object of it's jurisdiction) is here adopted in its full extent by the common law, and is held to be a part of the law of the land. 42 And those acts of parliament, which have from time to time been made to enforce this universal law, or to facilitate the execution of its decisions, are not to be considered as introductive of any new rule, but merely as declaratory of the old fundamental constitutions of the kingdom . . . . 43
Thus, it is in no way a "modern" or idiosyncratic view that customary international law is an integral part of the common law.

This is still true today: International customary law is a part of the common law. Statutory law is presumed consistent with customary international law interpreted, where possible without doing violence to the terms of the statute, consistently with international law. Statutory law can however displace the common law, including customary international law.

Customary international law is a part of "the law of the land." These exact words, guaranteed by the Magna Charta, are also guaranteed word for word under the U.S. Constitution. 44 This is unsurprising since *162 American colonists fought for the same rights as Englishmen, namely those constitutional elements of lex non scripta such as habeas corpus, trial by jury, and most famously, taxation only with consent. Because of this, one could argue customary international law is constitutional and clearly customary international law is a part of the law of the land, even post-Erie.

A reading of Blackstone makes the significance of the ATS term "law of nations" blindingly clear. Blackstone even gives insight into which torts could also be violations of the law of nations: "in all disputes relating to prizes, to shipwrecks, to hostages, and ransom bills, there is no other rule of decision but this great universal law . . . ." 45 i.e., the law of nations. Again, this explains why the framers of the ATS explicitly wanted to vest jurisdiction in the federal courts: these claims were otherwise exclusively international and could not be handled by the states as the federal government has exclusive foreign policy power.

Blackstone also discusses international criminal law, which may be used to adduce more "torts in violation of the law of nations" since each corresponding common law crime implied a corresponding common law intentional tort. 46 Blackstone enumerates: "T[he] principal offences against the law of nations, animadverted on as such by the municipal laws of England, are of three kinds; 1. Violation of safe-conducts; 2. Infringement of the rights of embassadors [sic]; and, 3. Piracy." 47

ii. What Coke can tell us about the ATS

Blackstone is not alone in clarifying the role of customary international law in the common law. Earlier, Coke also regarded the law of nations, or jus gentium, as a part of the common law. 48 Coke influenced Blackstone's definition of piracy; particularly the idea of the *163 pirate as hostes humani generis 49 and liable by implication to universal jurisdiction. Blackstone goes so far as to quote Coke. 50 Coke also clarifies, as does Blackstone, 51 that the definition of a tort still means an injury against one's rights, i.e., a non-consensual relation. 52 Piracies, per Coke, are subject to forfeiture. 53 Coke also gives us further insight into the meaning of the ATS:

Where divers did in the reign of the late Queen Elizabeth commit Piracy and Robbery upon the high Sea, of divers Merchants of Venice in amity with the said Queen, and after the Pirates, being not known, obtained a pardon granted at the Coronation of King James, whereby the King pardoned them all felonies (inter alia) first, that before this Statute, Piracy or Robbery on the high Sea was no felony whereof the Common Law took any knowledge, for that it could not be tried, being out of all Towns and Counties, but was only punishable by the Civil Law, as by the Preamble it appeareth; the attainder by which Law brought no forfeiture of lands, or corruption of blood. Secondly, that this Statute did not alter the offence, or make the offence felony, but leaveth the offence as it was before this Act, viz a felony only by the Civil law, but giveth a mean of triall by the Common law, and inflicteth such pains of death as if they had been attained of any felony etc. 54
Here, we see Parliament expressly transposing a claim in the Admiralty courts (i.e., under international law) 55 into the common law courts to avoid procedural injustice. This is exactly what the ATS seeks! However, while the anti-piracy statute Coke examined does provide for *164 forfeiture, that forfeiture might have been granted not to the victim of the crime, but to the sovereign. Moreover, Coke states the claim against the pirate in Admiralty (i.e., the international court) was "only punishable by the Civil law." One could argue, wrongly, that the definition of "Civil law" equals what is meant today - a claim not in crime, but in tort. I believe, however, what is meant here by "Civil law" is the Admiralty courts: International law in its sources and structures mirrors civilian legal systems and civil law concepts continue to hold influence in the common law in Admiralty and Equity courts. Alternatively, the reference to "Civil law" may mean not ecclesiastic courts, but royal courts.

Whatever conclusion these points lead to, this much is clear: Coke's analysis of this statute explains why Congress wanted to enact the ATS. Congress meant to transfer a claim from Admiralty, and possibly from state courts, to the civil courts to avoid procedural difficulties and irregularities leading to a lack of remedy for substantive injustice. Lest critics underrate the importance of Coke, even today the U.S. Supreme Court still cites his writings, among others, as persuasive evidence of the law. 56

3. The Government's abduction, while illegal under International Law may have been legal under national law if a statute had displaced the customary law. In all events, the Government's abduction was constitutional

The abduction of Alvarez-Machain was clearly a violation of international law. 57 That does not mean, however, the U.S. government does not have the constitutional power to breach international law. 58 Constitutionally, it is clear that although U.S. law should be interpreted consistently with international law, U.S. law can conflict with international law and nevertheless be constitutional. 59 It is also clear that *165 customary international law is a part of the common law, 60 but federal statute may overrule it. So it is possible that U.S. actions, while clearly a violation of international law, are not necessarily a violation of U.S. domestic law. That would depend on whether any U.S. statutes in question operate to abrogate the common law. If any federal statute abrogated the common law on extraterritorial abduction then the actions were legal and constitutional. But constitutional power is not exercised *166 in a vacuum. All states are subject to the command of international law: No state may exempt themselves from international laws which are also jus cogens through persistent objection thereto. 61 Thus, the United States has the power to abduct, 62 but lacks a legal right to do so. Indeed, when it does so, it will incur the wrath of its allies and risk worsening an already isolated global position. 63 Legally, other states will be entitled to the self-help remedies of retorsion 64 and reprisals. 65 Thus, the U.S. executive violates international law at its own peril and the peril of the republic. Federal law enforcement officers have constitutional power to enforce U.S. law overseas. 66 They do not, however, have the legal right to do so when such exercise of jurisdiction to enforce also constitutes a violation of international or foreign laws. The act may be legal in the domestic laws of the United States, but it would nevertheless be illegal under international law.


*167 B. "Is the Alien Tort Statute solely a grant of jurisdiction, or does it provide a cause of action for aliens who are victimized by tortious violations of international law?" 67

Again, the Justice Department miscast the issue, for although the ATS is "merely" jurisdictional, it grants jurisdiction for substantive claims in violation of the law of nations. 68 This is facially apparent by reading the plain language of the statute. This was also the conclusion the Supreme Court in Sosa reached. 69 Some of the U.S. Courts of Appeals had at least implied that the ATS created a supplementary domestic cause of action in addition to the substantive international cause of action. However, the better view, taken by the majority of the circuit courts and affirmed by the Supreme Court in Sosa, 70 is that the ATS is a purely jurisdictional statute and does not itself create any new independent cause of action. 71 The Court reached this result through a textual 72 and historical 73 analysis of the ATS. It also considered a systemic analysis, placing the ATS in the context of the judiciary act - a jurisdictional law - to reach the logical conclusion that the act does not create an independent cause of action under U.S. law. 74 On the basis of this solid black letter analysis, the Court concluded that the statute permits U.S. courts to adjudicate tortious violations of international law. 75

Although the ATS does not create an independent cause of action under U.S. law, this does not mean no remedy exists for a private person *168 when their rights under international law are violated. Rather, it means that the international law is the basis of the substantive claim. 76

As well as the ATS claim, one could claim an independent, implied private cause of action for violation of jus cogens norms and constitutional torts as a possible remedy for international human rights violations. 77 Such a claim, however, would likely fail. The Court in Sosa continued the trend of limiting Bivens claims (i.e., claims for constitutional torts). 78

A substantive claim for a "violation of the law of nations or a treaty of the United States" 79 litigated before U.S. courts should be considered "derived" from international law. 80 Sosa addressed a split of authority on this issue between U.S. Courts of Appeals. The Court's plain meaning interpretation yielded the conclusion that the ATS does not grant an independent cause of action, but rather provides U.S. federal courts the *169 jurisdiction to hear claims for violations of international law which are also torts injuring aliens. The ATS states that "[t]he 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." 81 The illegality to be remedied under the ATS is violation of international law or the law of nations, i.e., jus gentium. 82 The ATS does not envision ordinary torts which injure aliens, which would be "private law," but rather tortious violations of international law. 83

Also, attempts to infer the limits and meaning of the ATS from the Torture Victim Protection Act of 1991 (TVPA) are problematic at best: Congress enacted the TVPA hundreds of years after the ATS. Furthermore, the ATS and TVPA differ in that the ATS addresses international law. 84 In contrast, the TVPA is a creation of American law, not international law. International law may be persuasive evidence of the content of the TVPA, but it is not the source of the claim. 85 This distinction is clouded by the fact that customary international law grows out of state practice. If all states recognized claims like the TVPA, then an independant cause of action would exist based on international law for the same set of facts that may be remedied in U.S. law under the TVPA.

It is better to look at the ATS in its own terms to understand its meaning. The only two law sources explicitly mentioned in the ATS were the law of nations, not U.S. law, and treaties of the United States, 86 both of which are sources of international law, custom, and treaty. The evidentiary role of the TVPA in interpreting the ATS should be seen only in negative terms; the Supreme Court regards the TVPA as evidence that Congress did not disapprove of use of the ATS. 87 However, the Court *170 goes further by raising a rather unpersuasive argument that Congress must somehow explicitly authorize the Court to enforce laws it has enacted. 88 It would certainly be more logical to presume that all laws enacted are also meant to be enforced, unless Congress explicitly stated a law was merely an "enabling act" or similar preparatory legislation. It would be a strange interpretation of separation of powers for the Court to simply refuse to adjudicate the laws Congress enacted.

The doctrine of expressio unius 89 reinforces the plain meaning interpretation. 90 Logical arguments also support the interpretation that the substantive aspects of the ATS are based in international law and not in domestic law. What purpose would be served by creating two causes of action, one based in domestic substantive law and the other in international law within one legislative act, particularly since both causes of action would be almost exactly coextensive? Why would the ATS authors want to "mirror" all international law claims with equivalent domestic claims? There seems to be no sensible reason to do so. Thus, a reductio ad absurdam 91 argument also leads to the logical conclusion that the ATS is purely procedural, but vests in U.S. courts the power to remedy violations of international law. The substantive component of the ATS is found in international law, while the procedural aspects are found in U.S. law.

Statutes, like treaties, 92 are to be interpreted not in isolation, 93 but *171 rather in light of the Constitution, 94 congressional intent, international law, and other statutes with the goal of giving full effect to all of their provisions. Statutes are to be interpreted wherever possible to be consistent with treaties and the U.S. constitution. 95 There is very little evidence of legislative intent as to the scope and purpose of the ATS. 96 The Supreme Court in Sosa did however, do the best job possible to analyze what little historical evidence it could find. 97 Interpreting the ATS as creating an independent substantive cause of action in addition to claims under international law would not be inconsistent with U.S. treaties or the constitution, but such an interpretation would contradict maxims of statutory construction such as "plain meaning" interpretation and expressio unius est exclusio alterius.

Statutes are also to be interpreted according to their plain meaning. 98 The ATS does not explicitly state creation of an independent cause of action, but rather explicitly uses the terms "committed in violation of the law of nations or a treaty of the United States." 99 No more, no less. Had Congress wished to create an independent cause of action under domestic U.S. legislation or domestic common law, it would have said so, as it did in the Torture Victim Protection Act 100

*172 The ATS opens U.S. courts to alien litigants to redress substantive violations of international law to overcome the key limitation of international law: the absence of enforcement mechanisms. International courts and tribunals are only partial answers to the problem of unenforced international laws because international tribunals are themselves limited by the question of their legitimacy and thus reveal the second main problem of international law: the absence of a single sovereign. International law is also limited because, as a general rule it addresses itself principally to nations and not individuals. 101 However, an independent cause of action would not need to be created to grant individuals, as opposed to states, remedies for certain well defined violations of international law. 102 But, some violations of international law injure individuals, yet no individual remedy is recognized.

This conundrum leads to the central issue: whether a claim for a violation of international law, the remedy of which is held only by a state (e.g., abduction as an exercise of jurisdiction to enforce), would nonetheless also create a right to an individual remedy under United States domestic law? Unfortunately, the better answer is "no." The issue of when and whether an international norm applies to individuals is not without controversy. 103 This controversy, however, is due to a lack of *173 understanding of international law or perhaps scepticism at the proof of international custom. 104 Such proof necessarily calls before the court texts from foreign legal systems, which are often, but not always, in foreign languages. 105 With a proper understanding of the general rule that international law governs only relations among states inter se, 106 but does exceptionally recognize rights and duties of individuals, delimiting these exceptions becomes possible. But finding the exceptional individual rights under international law does nothing to remedy those individual injuries where in fact no individual remedy is recognized, such as kidnapping.

The problem of determining whether a claim for a violation of international law creates an individual right under international law becomes manageable by understanding that the sources and methods of common law and European continental civilian law are in fact similar. International law generally does not create individual rights because the rights it creates are held by states, which then mediate the complaints of individuals. Normally, individuals can only complain of a violation of international law through the intermediary of their state. 107 Violations of the rights *174 of non-intervention and sovereign equality, for example, are not within the limited, but well-recognized, exceptions where individuals have directly enforceable claims under international law. U.S. law could recognize a novel individual claim for a violation of international law by relying on the argument that the ATS only imports international substantive law and not international procedural law and the question of who has a right to a remedy is a procedural, not substantive question. Yet, if the international claim does not recognize a private cause of action, why would it do so under the ATS? Furthermore, the argument relies on formalist distinctions between "substance" and "procedure," which have been shown to be manipulable and thus untenable. In all events, for political reasons, the Supreme Court in Sosa wished to limit ATS. Thus, it is unlikely that the circuit courts would adopt this line of argument.


C. "If it is proper to imply or create a cause of action under the ATS, whether those actions should be limited to suits for violations of international legal norms to which the United States has assented." 108

The issue is again somewhat miscast because it ignores the category of norms erga omnes. 109 There are international obligations of all states inter se which are not derogable. Those are laws jus cogens. However, obligations of all states to the international system as a whole also exist: 110 Those are norms erga omnes. 111

*175 The distinction 112 may seem unimportant; one might be able to subsume erga omnes norms into jus cogens. 113 U.S. law may no longer recognize the distinction between jus cogens norms and erga omnes norms, 114 but the distinction still persists internationally. Jus cogens norms are those rules of international law which no state may violate. 115 They are duties owed to other states and individuals. 116 Norms erga omnes are those norms which no state may violate because they are duties owed to the international community as a whole. 117 The distinction may be relevant for the determination of whether a state may exercise universal jurisdiction. At any rate, the Supreme Court in Sosa does not address the distinction between jus cogens and erga omnes. In fact, neither term even appears in the Supreme Court's decision! Elsewhere, U.S. courts have held that although no state may violate jus *176 cogens norms, 118 neither is any state obligated to remedy violations of such norms, 119 although states are under a duty to extradite or punish international criminals in their territory. 120

1. Plain Meaning Argument - The ATSe facially does not distinguish between jus cogens norms and other rules of international law

Regardless of the contours of the distinction between norms erga omnes and norms jus cogens, a distinction in all events not directly addressed by the court in Sosa, clarifying the distinction between erga omnes norms and jus cogens norms is not necessary to determine whether only jus cogens rules can be the basis of an ATS claim. A plain meaning interpretation of the ATS disposes of that question. The ATS does not facially distinguish between violations of jus cogens and ordinary international law. The text of the ATS only distinguishes customary norms from other customary norms based on whether they are torts. The implication from the text is that no criminal remedy may be imposed.

2. Historical Argument - At the time of drafting of the Alien Tort Statute International Law did not distinguish between jus cogens norms and ordinary rules of international law.

Not only does a plain meaning argument lead to the conclusion that the ATS does not distinguish between jus cogens violations and other violations of international law, a historical argument leads to the same conclusion. The concept of norms erga omnes or jus cogens basically dates from the 20th Century, long after enactment of the ATS. Erga omnes appears to date from the International Court of Justice (ICJ) decision in Barcelona Traction. 121 The concept of jus cogens appears first in the Vienna Convention on Treaties in the 1960s, 122 a treaty to *177 which the United States is not a signatory. Nonetheless, the concept has since become a part of customary international law, recognized by the United States due to the U.S. government's non-objection to the custom. 123

Whatever the origins, contours, and impact of the concepts of jus cogens and erga omnes in customary international law, the fact is the concept of non-derogable norms binding all states, without exception under any circumstances (whether called erga omnes or jus cogens), was not a part of international law in 1789. So the ATS in 1789 would have remedied any violation of international law, at least where there was a private cause of action (the case of piracy for example, 124 but also the case of injuries to diplomatic personnel.) 125

3. Systemic Argument - The hermetic separation of the international legal system into a "public-state" and "private-individual" sphere did not exist at the time of the drafting of the ATS, is increasingly ignored today, and provides no argument that the ATS address only jus cogens violations.

Some argue, correctly, that the hermetic division of the legal system into separate private and public legal orders, likely a result of continental pandecticism and codification, was in fact a development of the mid-19th century and not at all a feature of law in 1789. 126 That is an argument in favor of continuing the contemporary trend of ignoring this division.

On the other hand, one could argue that the ATS's substantive content does evolve with international law. 127 However, the creation of concepts of jus cogens norms and norms erga omnes enhances and does not reduce the protection of persons under law. Thus, it would be entirely backwards to argue that the development of norms so *178 fundamental that no state under any circumstance may violate them somehow justifies permitting states to violate other norms with impunity. It is a strange argument indeed that the creation of norms intended to protect individuals against the worst breaches of international law somehow denudes the rest of international law (and by extension the ATS) of substantive protections of lesser breaches of international law. The ATS clearly applies both to claims for violation of jus cogens and for claims of ordinary violations of international law.

4. Individual Rights under International Law

This shows that the relevant issue is whether international law recognizes an individually enforceable right, in which case, the ATS would grant a remedy. International law in principle addresses only states. Exceptionally, though increasingly, 128 international law does recognize individual rights and duties, not only as to violations of jus cogens but also for violations of ordinary international law. 129 Further, whether international law grants rights and duties to individuals does not necessarily turn on whether the right in question is a jus cogens norm.

a. Abduction

Presently, international law, does not recognize a right of an individual to make a claim against a state for violating the integrity of another state. Thus, the remedy for the violation of international law, the violation of Mexican sovereignty, can be invoked only by the Mexican government and not by Alvarez-Machain. Therefore, in the cases of Israel v. Eichmann, 130 Argoud, 131 and United States v. Noriega, 132 though the abductions were illegal under international law, the abductee had no *179 remedy because the injured states did not object. Though Alvarez-Machain has no international law remedy for abduction, the distinction is not whether the injury is a violation of jus cogens. The principles of sovereign equality 133 and non-intervention are likely themselves jus cogens norms! 134 The distinction is whether international law recognizes a right inhering in an individual and not merely mediated by the state of which the individual is a citizen. 135 Certain violations of jus cogens, such as slavery, piracy, and torture committed by state actors, also create a directly enforceable private cause of action under international law. 136 And these norms are indeed also jus cogens. However, there are international rules which are directly enforceable by individuals, yet which are not jus cogens. 137

b. State Action

The question whether the ATS only provides remedies for *180 violations of jus cogens appears to arise due to miscasting the ATS in terms of "state action" when dealing with non-state actors. Historically, however, non-state actors, whether pirates or mobs, could be held liable as individuals for their torts against other individuals in violation of the law of nations. So the state action requirement, a result of the unsuccessful attempt in the 1800s to render international law the exclusive province of states, is really misplaced in ATS cases. There is, logically speaking, no "state action" requirement under international law. Unfortunately, this confusion was neither addressed nor resolved in Sosa.

Courts that erroneously impose a "state action" requirement on the ATS, 138 a requirement which figures nowhere in that statute, usually do so operating from assumptions of, and analogies to, U.S. civil rights laws 139 (which are wholly inappropriate to norms of international law), or on the principle that international law as a general rule only grants rights and duties to states 140 (a principle with many exceptions). They seem to be operating under an implicit and erroneous presumption that international law only grants direct rights and duties to individuals in cases of jus cogens violations. 141 This is in spite of the fact that no *181 requirement of "state action" or "color of law" appears anywhere in the text of the ATS, or the TVPA for that matter. In actuality, under international law no requirement of "state action" to find violations of international law exists. 142 International law does not look at "state action" to determine whether a right exists or was violated.

Despite confusion stemming from inappropriate attempts to transpose U.S. domestic law into international law, or simply misunderstanding of international law, some courts do reach the correct results for the proper reasons. 143 This might be because states are responsible to the international community not only to govern their own behavior, but also that of their subjects. So illegal private action could, under international law, rightly be attributed to the nonfeasance or misfeasance of a state.


D. "Whether a detention that lasts less than 24 hours, results in no physical harm to the detainee, and is undertaken by a private individual under instructions from senior United States law enforcement officials, constitutes a tort in violation of the law of nations actionable under the ATS." 144

As already stated, it is quite clear that the abduction itself was a violation of international law. This is not because the abduction was particularly violent, but simply because Mexico is a sovereign state. Any abduction, no matter how violent, would violate Mexico's sovereignty and be illegal under international law. Again, the issue is miscast *182 perhaps by failing to understand basic principles of international law and projecting U.S. concepts onto international law which are not actually found in that body of law. The U.S. government appears to be arguing that if the abduction was not particularly violent, there would be no violation of international law. That is the wrong issue. The violence of the abduction goes to whether the abduction constituted torture, which is a separate claim from the claim of abduction. Thus, the issue as cast confused not only international and domestic law, but also the facts at bar. At any rate, the United States cannot successfully argue that it did not cause Alverez-Machain to be kidnapped because of the principle "qui facit per alium facit per se." 145 The abduction, whether direct or indirect, was instigated by the United States and is an example of the exercise of jurisdiction to enforce. 146

However, merely because the abduction was a violation of international law does not necessarily mean that Alvarez-Machain has a right to a remedy. Again, the question seems miscast. International law only exceptionally grants individuals remedies. There were, however, always exceptions to this rule, and there are an increasing number of such exceptions. As stated, the abduction of Alvarez-Machain, while constitutional and perhaps legal in U.S. law, was nonetheless illegal under international law. However, the remedy for this abduction is not Alvarez-Machain's, but Mexico's. The issue is not whether Alvarez-Machain has a right to a remedy for abduction under international law; he does not. Alvarez-Machain's sole remedy under international law for the abduction would be to ask his state, Mexico, to intervene on his behalf. 147 But abduction is not Alvarez-Machain's only claim. He is also making a claim for a remedy of torture. The issue then is whether Alvarez-Machain has a remedy for torture (and thus implicitly whether there was torture). If Alvarez-Machain's captors tortured him, then he would have a right to a remedy under international law, regardless of whether torture is a norm jus cogens - though it is. Thus, the fourth issue is actually two issues, and must be recast by the Court.


*183 III. Theoretical Synthesis: The Natural Law/Positivism Dichotomy in Sosa

Not only are the issues as presented to the Court miscast and confused, the theoretical framework within which the Court analyzes these issues is incomplete. In determining the questions presented, the Supreme Court in Sosa considers legal history - the opinion of Blackstone, as well as legislative evidence circa 1789 and legal theory. The Court notes that the dominant legal theory in 1789 was natural law (jus naturale), but that the dominant contemporary legal theory is positivism; this influences the Court's analysis. 148 The Court is unwilling to empower the circuit courts to "discover justice" in some vague nous. 149 Instead, the Court wishes to limit the action of the circuits by requiring the circuits to exercise their function prudentially and judiciously. Thus, it is perhaps unsurprising that the Court favors the dominant contemporary trend to positivism.

However, by doing so the Court falls victim to a false dichotomy. It presumes, as has most of legal discourse since Justice Holmes, that positivism and natural law are antithetical. However, this is not at all the case. To show that positivism and natural law are compatible, even complementary, we look to Aristotle's thorough and penetrating analysis of justice. To show that Aristotle is not alone in seeing positivism and natural law as complementing each other, we then look at Hobbes. After exposing the theoretical framework which the modern courts have consistently ignored since Holmes, we then look at how this false dichotomy has led U.S. law down a constitutional dead end since the Court's decision in Erie.


*184 A. The false dichotomy of positivism and natural law

The opposition of positivism to natural law is a false dichotomy. This basic fact, though easily proven, remains the greatest stumbling block in contemporary legal philosophy. This proposition, simple on its face, is on closer examination rendered complex by the multiple meanings of natural law. Further, both positivism and natural law can be regarded as either descriptive theories of what law is, prescriptive theories of what law ought to be, or even how legal science ought to be done. Because of this multiplicity of meanings it is all too easy to "lose the forest for the trees." However, we can maintain a holistic view of the law by considering a classical thinker, Aristotle, and a more modern thinker, Hobbes.

1. Aristotle

Aristotle believed that there was a natural world (physis), inevitable and unchanging. 150 This physical world could not be otherwise than it is. He also believed there was a man-made world, the artificial (tekhne), which could be other than it is. 151 This ontology only appears to be dualistic: each of these "different" worlds is a complementary part of a whole which is greater than either alone. This ontology, dialectical opposition of competing principles synthesized into a whole greater than either alone, is reflected in Aristotle's theory of justice. For Aristotle, some laws were natural - they could not be otherwise. 152 Yet other laws were conventional, i.e., positive. 153 Aristotle correctly recognized that while some acts would be illegal in all societies, for example unprovoked murder, others would only be wrongful in certain societies. Aristotle even recognized that the narrow and common view that justice must either be natural or positive is erroneous: "Further, this last-mentioned *185 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

Failure to understand that these two different types of justice are mutually complementary and are reconciled through dialectical synthesis is the source of the false dichotomy. This blind spot in modern thought was a result of Cartesian scepticism which, along with nominalism and atomism, saw the world only in terms of constituent elements and not in terms of the whole which arises therefrom. 155.

Aristotle's ontology, which sees nature (physis) and art (tekhne) as complementary parts of a greater whole, is reflected in his treatment of justice in the particular (i.e., justice not in the abstract but as a specific relation). Aristotle saw particular justice as of two types, natural and positive. 156 Natural justice applied to nature; those things which could not be otherwise (thus corresponding to physis). Positive justice applied as a result of human convention and was man made (thus corresponding to tekhne). Those laws which were positive were the result of social justice, which Aristotle called proportional justice, described as a geometric relation between two unlike things mediated by a positive common element. 157 This mean, a variable, could be otherwise. Thus in the communist society of Sparta, equality of property was the mean determinant of social justice. Although citizens were unequal in other rights and duties, their commonality of property was seen as a factor that bound them together and also prevented the state from becoming decadent. 158 In contrast, the mean element in liberal Athens was *186 excellence. 159 Thus, persons of different ability would have different shares in social wealth according to their virtues. 160

As to social justice, i.e., the proportion of shares of social wealth distributed to each individual, which Aristotle called distributive justice, Aristotle was clear--it was determined by positive law and would vary from society to society. 161 Aristotle even points out the conventional nature of the value of money as indicated by its name "nomos," which is nearly the same word in Greek as the name for the concept of law. 162

Distributive justice in Aristotle's thought, in my opinion, corresponds to positive justice, since different societies chose to share out their wealth according to different measures. But there is also an invariant, natural justice which for Aristotle inevitably results from nature. This, in my opinion, corresponds to his concept of arithmetic justice. Arithmetic justice, that is justice in transactions, exists where each party to a transaction receives an equal benefit for an equal burden. 163 Thus, for example, where a person trades shoes for shirts they *187 should receive the same amount of shirts whether in Athens or Sparta.

For Aristotle, in sum, there is a positive justice as to those things which could be otherwise, for example, traffic ordinances. And there is a natural justice as to those things which are determined by human nature, such as parricide. We can already see that the dichotomy of natural and positive justice, that justice must be either positivist or naturalist, is false. As to those invariables, those things which cannot be otherwise, there is a natural justice. But to those things which are variable, which depend on climate, geography or culture, there is a positive justice which could be otherwise but is conventionally so in this particular society.

2. Hobbes

Aristotle is not alone in showing us that the supposed dichotomy of natural law versus positivism is a false one. According to Hobbes, there is such a thing as natural law, which he calls jus naturale, but it is the law of the jungle--the right of self preservation. 164 Hobbes distinguishes between natural law and natural justice. Natural law is the law of the strongest, while natural justice is the use of reason to derive commands of positive law, the first of which are directly related to natural law, such as the right to self-defense. 165

*188 Again, we can see that Hobbes, like Aristotle, provides a plausible explanation of how positive and natural law co-exist. Hobbes' natural law, the law of the jungle, is in fact identical to some accounts of positive law, notably "the bad man theory." 166 Accordingly, people obey law, ultimately, because of the fear of sanction. When we understand "natural law" as meaning "the law of the jungle," we see that the distinction between positivism and naturalism simply disappears.

Of course, Hobbes' view of natural law is not the only one. His is a descriptive view of natural law and does not argue that the law of the jungle should be the human law. Indeed, Leviathan is an argument for an "artificial man" - the state - which will replace the natural law of the jungle with a conventional (positive) law. Where Hobbes and Aristotle diverge, however, is that Hobbes postulates the possible existence of a "state of nature,," of persons outside of a state. For Aristotle such would be a physical impossibility. Aristotle recognizes, correctly, that man (he was a sexist) is a social animal and could not live in isolation without debasing himself. For Aristotle, the individual is not self-sufficient - as proven by example in newborn humans. This postulated state of nature is, however, central to the American concept of democracy. Its falsehood explains the failure of the American constitutional order, as reflected in recurring constitutional crises shored up by ever more desperate constitutional fiats issued by nine elderly, unelected, learned judges, most of whom are white men, and all of whom are wealthy.

Hobbes' "state of nature," his "war of all against all," 167 is in fact impossible because individuals, even adult individuals, are not self-sufficient. 168 Homo sapien is a social animal 169 and consequently, "the *189 state of nature" is impossible. Still, if natural law is identical to the law of the jungle, then we can avoid the false dichotomy which opposes naturalism and positivism a second way. However, Aristotle's explanation is at once more elegant and has greater explanatory power and correspondence to material reality, and thus, to a materialist scientist, is the better answer.

How does this understanding of the relationship of positivism and natural law affect our understanding of legal science? First of all, it obviates a majority of the discourse of U.S. legal theory in the last century. Since Holmes, at least, U.S. law has taken the position that there is a "positive" law capable of scientific exposition and analysis and that "natural" law is ambiguous at best, a charade at worst. That view has been shown to be false. Positivism, despite its claim to scientificity, is an amoral theory. But law is an inherently normative discipline. Legal science is a master science, for it determines which science is to be studied and to what degree.

We can also see the enduring relevance of natural law in the greatest failure of the last two millennia in the collapse of fascism. Fascism proved the normative folly of divorcing law and morality. Consequently, natural law thinking pervades the German constitution to this day and rightly so, for the consequences of an amoral law were 15 million dead Germans and over 20 million dead Russians. Yet the failure of peoples who have not yet endured fascist tyranny or have been its victim to appreciate the moral character of law is perhaps understandable. Given the life and death stakes, however, such an error is unforgivable.

This failure of positivism to adequately describe reality can also be seen in the post-war Nuremburg judgments. There is no doubt that the crimes of the accused at the Nuremburg and Tokyo tribunals were not crimes under any positive law in 1939. Consequently, the only plausible argument was that the accused were guilty of violating laws unwritten in the law books but inscribed on every human heart. The natural law elements of the Nuremburg tribunals emerge, usually reluctantly. This reluctance to defend the moral virtue of natural law is due to either the multiple meanings of natural law ("the law of reason," "the law of nature," and "the law of God"), the perceived unscientific character of natural law, or both. As evidenced in our brief exposition of Aristotle, *190 scientificity and naturalism go well together.

A final legal development, which should conclusively prove the enduring character of naturalist theories of law, is the idea of "jus cogens." Jus cogens norms, those rules of international law 170 that are non-derogable, are basically a post-war phenomenon. Again, it is unclear how to justify the punishment of individuals by another state for unwritten laws unless those unwritten laws were somehow binding and universally enforceable. While universal jurisdiction could be traced to piracy, the idea that there are universal laws which can be violated by no one is the essence of natural law thinking.

In the post-war era, it does not take much insight to realize that there was a quiet, and absolutely necessary, revival of natural law as a healthy reaction to the excesses of national socialism. U.S. legal theory would do well here to consider the lead taken by European and international legal scholarship and grapple further with Aristotle on natural law and positivism.


B. The Implications of Re-Cognizing the False Dichotomy of "Naturalism v. Positivism"

All this may seem like abstract philosophy with no legal significance. However, to make this more practical, contrast the determination whether law is "discovered" "out there," i.e., a naturalist view, with the view that law is legislated positively by a legislator. For the naturalist, the common law has a "brooding omnipresence" and is discoverable by reason. 171 But the idea that law is either positive or *191 natural, a dichotomy which has dominated the last century of legal reasoning with the emergence of the dominance of positivism, 172 is, as has been explained, a false dichotomy.

This fact has important implications for legal practice. If the positivist/naturalist dichotomy is, or at least can be, a false dichotomy, then that puts into question decisions such as Erie Railroad Co. v. Tompkins, 173 which abrogated the existence of a general federal common law. 174 Erie presumes the positivist/naturalist dichotomy and accords it a decisive role in decision-making. 175 The positivist decisions of the early 20th century were justified by the idea that a positive legal science was possible and it was, moreover, desirable as a naturalist legal science would be at best superstition, at worst charlatanism. But a naturalism based not on the view of natural law as the will of God, but rather as the deliberative result of logic (Cicero's right reason in accord with nature - the deist approach taken by the founding fathers), or a harsher view of natural law as inevitable in human nature or the world (the nasty and brutish view taken by Hobbes - natural law as the law of the jungle, positive law as attempts to tame it), shows us that science and two of the three main variants of natural law are perfectly compatible. But most importantly, when we situate positivism and naturalism within the schema of justice described by Aristotle, we see that natural law and positive law are complementary, and we cannot understand justice with either alone. Roughly simplified, positive law corresponds to social justice and natural law corresponds to justice in the particular, i.e., individual transactions among physical persons.

Because Erie was based on a false dichotomy, it was wrongly *192 decided. That reopens the possibility, and necessity, of federal common law received by the United States as a successor state to the British Crown. So the recognition of naturalism, whether in Aristotle, Cicero, Hobbes, Coke, Blackstone or any of the other great legal minds, and its application to modern legal thought, should be obvious. Yet "natural law" is regarded as superstitious nonsense and unscientific charlatanism?

Recognizing naturalism explicitly as described and advocated in this article would reopen vast tracts of legal terrain to argument. This is, however, no argument in a legal system which is increasingly regarded as illegitimate due to its isolation from democratic impulses and its own historical roots. The truth will out. 176


C. Examining the ATS in light of the false dichotomy

The Court in Sosa v. Alvarez-Machain implies that the Alien Tort Statute may only be applicable to those norms which violate jus cogens, 177 but that is where the Court trips over the false dichotomy. On the one hand, the Court justifies a static view of positive law embodied in Erie due to the rejection of naturalism by Holmes and his successors. On the other hand, it justifies its decision to limit the application of the ATS by relying on a natural law concept, jus cogens! That is a contradiction: You simply cannot have it both ways.

The Court does recognize that international law is a part of the common law, but it also ignores a major problem--after Erie there is no general common law. 178 Yet international law is a part of the common law and all foreign policy competences in the U.S. Constitution are *193 vested in the federal government. So, if we accept the Erie decision, the only coherent solution would be to regard customary international law as part of a (supposedly non-existent) federal common law. Or preferably, we can recognize the logical facts: the United States is a successor state to the British government. It did not specifically abrogate the common law. Quite the opposite, the formula of Magna Charta, "the law of the land," is explicitly used in the U.S. Constitution, which, moreover, specifically guarantees elements of the common law and states that the enumeration of some rights does not imply the exclusion of other rights 179. In dubitas, pro libertas 180 is the logic of the U.S. Constitution, at least as written by the founders. As the revolution was fought, in part, to preserve the civil rights of the colonists as British subjects under the unwritten British Constitution, it would be a peculiar thing to deny the applicability at the federal level of the common law which guarantied their liberties. The states could not always guarantee the liberties of the citizen under the common law because some powers, notably foreign policy, were reserved to the federal government. Thus, whether there is a general federal common law, 181 there is certainly a customary international law applied by the federal government as common law.


IV. Conclusion

The seemingly basic questions presented in Sosa in fact lead to complex issues of legal history, comparative law, and legal theory. Superficially, the Court's decision appears well reasoned. However, an in depth analysis reveals that the Court's decision is predicated on an erroneous presumption. Consequently, no synopsis of the case can be satisfying; the Court's work here is incomplete.

Although a conclusion is not possible in the sense of a climactic resolution of dramatic tension, it is possible to summarize the basis of the author's critique of the Court in order to cast light on paths for future research. Sosa is important not because it reaches conclusive answers. Rather, it reaches inconclusive answers, particularly when we recognize it is founded on several false propositions: that law must be either positive or natural and that natural law can, should, and has been *194 rejected. Sosa reveals a certain bankruptcy in the courts' thinking, a certain impasse that U.S. political and constitutional thought finds itself in, which also is due, incidentally, to a false presumption of the existence of a mythical "state of nature" and "social contract." Though no conclusion is possible, a summary may help highlight how these issues should be resolved.

1. Aristotle and Hobbes

Legal theory for the last 150 years has been trapped in positivist discourse due to the multiple meanings associated with the concept "natural law." Positivists, correctly, associate one line of natural law theory with pre-scientific religious thinking, and rightly reject it as unscientific superstitious nonsense. But that is like throwing out the baby with the bathwater. A scientific natural law theory based not on religious faith or superstition but rather on empirical observation is not only possible, Aristotle actually employed it over 2000 years ago. The idea that positivism and natural law are mutually exclusive propositions, which predicated the decision in Sosa, and Erie for that matter, is a false dichotomy. Aristotle, though describing positive law and natural law and assigning each a different role in a just state, never conceived of the two as being in conflict.

The dichotomy can also be escaped, albeit rather nastily and brutishly, as Hobbes does. He subsumes positive law into natural law by defining the law of nature as the law of the jungle - survival of the strongest. He then complements his jus naturale with the idea of a conventional lex naturalis which arises therefrom through contractual agreement. Thus, for Hobbes the ideas of fairness which we usually associate with natural law are in fact associated with the positive law. For Hobbes it is natural law, not positive law, which is cruel and indifferent! However Hobbes' conventional law is not in conflict with his natural law; rather, it flows therefrom.

Hobbes is of course completely wrong about the idea of a social contract. There never was, nor ever could be, a "state of nature." His law of the jungle ignores the basic truth Aristotle presents - man is a social animal unable to meet all his needs alone (so much for individualism). Thus, one escapes the false dichotomy with much less baggage simply by looking to Aristotle. 182 Still, since social contract theory is the foundational stone of the U.S. republic I thought it might be *195 easier for the reader to digest these hard truths by looking at someone a little less brilliant who does not reject the erroneous and unrealistic individualistic presumptions which characterize thinking in the United States. Rejecting social contract reasoning because it is factually untrue gives us the means to resolve the constitutional crisis because we can a) ask the right questions - what type of social organization leads to the good life and b) stop asking false questions (e.g., how to integrate black persons into a non-existing social contract to which they were never a party even in myth). Both Aristotle and Hobbes compel us to conclude that there is no dichotomy of positive law as opposed to natural law. Simply figuring out that conclusion would be one step forward in American constitutionalism.

2. Sosa and Machain

Unfortunately, the Court in Sosa appears to be blissfully ignorant of Aristotle and reaches a decision predicated on a false dichotomy. It makes this mistake because it is trying to escape the theoretical problem of pre-scientific thinking which does exist in some schools of natural law thinking. The result however is that the Court denies itself the power of normativity. Thus, the Court jumps from the frying pan (pre-scientific law) into the fire (the normative vacuum of positivism) and does not vindicate the rights of those wrongly injured, even though the proper role of the court is as the last peaceful resort for those wrongfully injured.

Once we recognize that the dichotomy of natural law and positive law that underlies the Court's reasoning is a false one, we escape from the mistaken presumption of the Court. Instead of cutting ourselves off from all naturalist thinking (people like Cicero, Aquinas, Aristotle) to avoid the superstitious, we avoid pre-scientific thinking through methodic empiricism. That allows us to do exactly what the Court believes it cannot--we can ask ourselves what substantive content of international law can be deduced from the totality of our empirical experiences and understanding. This is the function of the judge: to determine, a posteriori, 183 the law to be applied to this particular person. In contrast, the legislator's role is to determine objective rules of law a priori 184 that are valid for all persons. By abdicating normativity due to the false dichotomy of positivism vs. natural law, the right wing of the Court cripples its role in democracy exactly at the time when the left wing of the Court, via legal realism, overreaches its role and acts as *196 super-legislator! That, of course, is the most grave but least visible, and least violent, of the multiple crises currently facing the Republic. Judicial self-abnegation through positivism, i.e., denying the normative role of law in the sense of law as moral force, cripples the body politic just as much as judicial overreaching. Both wings of the Court undermine the role of the Court in democracy. One by overreaching, the other by under-achieving. Were America not facing several converging economic and political crises, this might be tolerable. But in a time of crisis the Court's misapprehension of its role exacerbates dangerous trends that threaten the health of the Republic.

a1. J.D., St. Louis University; DEA Paris II; DEA Paris X, Nanterre; L.L.M Eur. UniversitÃt Bremen. He teaches international and comparative law at the UniversitÃt 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.
Id. at 1150 (quoting Committee of U.S. Citizens Living in Nicaragua v. Reagan ("CUSCLUN"), 859 F.2d 929, 940 (D.C. Cir. 1988)).

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.
Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 461 (1963) (White, J., dissenting).

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).
The issue is carefully outlined, but remains unanswered, as noted in Sampson v. Federal Republic of Germany:
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.
250 F.3d 1145, 1153 n.4 (7th Cir. 2001) (citations omitted).
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).
The district court... reasoned that "it is international law, not the ATCA," that gives individuals fundamental rights. Therefore, a claim under the ATCA is based on a violation of international law, not of the ATCA itself. This reading is consistent with the Supreme Court's reasoning in U.S. v. Smith.... The language of 1350 creates no obligations or duties. Admittedly, the ATCA differs from the Gonzalez Act in that it creates a cause of action for violations of international law, whereas the Gonzalez Act limited the common law liability of doctors.... Nonetheless, we find nothing in this distinction to cause us to deviate from the plain language of the statute.
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).
The House Report on the torture victim bill did state that 1350 "should remain intact to permit suits based on other norms that already exist or may ripen in the future into the rules of customary international law." But the statement of one congressional committee is by no means a statement of "Congress," as some have supposed; the wish expressed in the committee's statement is reflected in no language Congress enacted; it does not purport to rest on an interpretation of 1350; and the statement itself is legislative dictum.
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).
Whether or not customary international law may be used by individuals to assert rights against state or private actors is a somewhat unsettled proposition. The Sixth Circuit, in Buell v. Mitchell, held that the determination of whether customary international law prevents a State from carrying out the death penalty, when the State otherwise is acting in full compliance with the Constitution, is a question that is reserved to the executive and legislative branches of the United States government, as it [is] their constitutional role to determine the extent of this country's international obligations and how best to carry them out. However, in Buell, the Sixth Circuit expressly limited its holding to the context of the case stating that it took "no position on the question of the role of federal courts to apply customary international law as federal law in other contexts, a subject of recent lively academic debate."
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:
[A]n essential distinction should be drawn between the obligations of a State towards the international community as a whole, and those arising vis-à-vis another State in the field of diplomatic protection. By their very nature the former are the concern of all States. In view of the importance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations erga omnes... Such obligations derive, for example, in contemporary international law, from the outlawing of acts of aggression, and of genocide, as also from the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination. Some of the corresponding rights of protection have entered into the body of general international law; others are conferred by international instruments of a universal or quasi-universal character.
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.
The substantive rules of international law may evolve and perhaps courts may apply those new rules, but that does not solve the problem of the existence of a cause of action. If plaintiffs were explicitly provided with a cause of action by the law of nations, as it is currently understood, this court might--subject to considerations of justiciability--be required by section 1350 to entertain their claims. But, as discussed below, international law today does not provide plaintiffs with a cause of action.
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.
Now of Particular Justice, and the Just involved in it, one species is that which is concerned in the distributions of honour, or wealth, or such other things as are to be shared among the members of the social community (because in these one man is compared with another may have either an equal or an unequal share), and the other is that which is Corrective in the various transactions between man and man.
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).
The state, as I was saying, is a plurality which should be united and made into a community by education; and it is strange that the author of a system of education which he thinks will make the state virtuous, should expect to improve his citizens by regulations of this sort, and not by philosophy or by customs and laws, like those which prevail at Sparta and Crete respecting common meals, whereby the legislator has made property common
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).
The right of nature, which writers commonly call Jus Naturale, is the liberty each man hath to use his own power as he will himself[ ], for the preservation of his own Nature; that is to say, of his own Life; and consequently, of doing any thing which, in his own Judgement and reason, he [ ] shall conceive to be the aptest means thereunto.
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).
Hereby it is manifest that during the time men live without a common power to keep them all in awe, they are in that condition which is called war; and such a war as is of every man against every man. For war consisteth not in battle only, or the act of fighting, but in a tract of time, wherein the will to contend by battle is sufficiently known: and therefore the notion of time is to be considered in the nature of war, as it is in the nature of weather. For as the nature of foul weather lieth not in a shower or two of rain, but in an inclination thereto of many days together: so the nature of war consisteth not in actual fighting, but in the known disposition thereto during all the time there is no assurance to the contrary. All other time is peace.
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:
[W]here 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; and, as evidence of these, to the works of jurists and commentators, who by years of labor, research and experience, have made themselves peculiarly well acquainted with the subjects of which they treat. Such works are resorted to by judicial tribunals, not for the speculations of their authors concerning what the law ought to be, but for trustworthy evidence of what the law really is.
Sosa v. Alvarez-Machain, 124 S.Ct. 2739, 2766-67 (2004) (quoting The Paquete Habana, 175 U.S. 677, 700 (1900)).

171. See Sosa, 124 S.Ct. at 2760.
[I]n the late 18th century... positive law was frequently relied upon to reinforce and give standard expression to the "brooding omnipresence" of the common law then thought discoverable by reason. As Blackstone clarified the relation between positive law and the law of nations, "those acts of parliament, which have from time to time been made to enforce this universal law, or to facilitate the execution of [its] decisions, are not to be considered as introductive of any new rule, but merely as declaratory of the old fundamental constitutions of the kingdom; without which it must cease to be a part of the civilized world."
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.
This limit upon judicial recognition is generally consistent with the reasoning of many of the courts and judges who faced the issue before it reached this Court. And the determination whether a norm is sufficiently definite to support a cause of action should (and, indeed, inevitably must) involve an element of judgment about the practical consequences of making that cause available to litigants in the federal courts.
Id. (citations omitted).

178. See id. at 2771 (Scalia, J., concurring in part and concurring in the judgment).
Federal courts, unlike state courts, are not general common-law courts and do not possess a general power to develop and apply their own rules of decision. The general rule as formulated in Texas Industries is that "[t]he vesting of jurisdiction in the federal courts does not in and of itself give rise to authority to formulate federal common law." This rule applies not only to applications of federal common law that would displace a state rule, but also to applications that simply create a private cause of action under a federal statute.
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.