Ghosts of Horace Gray: Customary International Law as Expectation in Human Rights Litigation

Abstract:     
This Article examines the application of international law and human rights norms in American federal courts. There has been an extensive academic debate regarding the status of customary international law within the common law of the United States. There is disagreement over whether and how contemporary norms of customary international law are actionable under the Alien Tort Statute (28 U.S.C. 1350). Ryan Koslosky takes a policy-oriented approach to examining the nature of customary international law in as well as its status within the American legal system. In light of the epistemology of the Alien Tort Statute, this Article analyzes social and power relationships to view international law as a series of reciprocal transnational expectations. As such critics of post-Erie v. Tompkins Railroad Alien Tort Statute jurisprudence have overemphasized the role of both sovereignty and legal positivism in the application of international system and America courts. This Article takes the approach that in light of the history of the Alien Tort Statute and the nature of international law, all contemporary human rights norms are part of American jurisprudence and fully enforceable in federal courts.

Keywords: Alien Tort Statute, Customary International Law, Policy Sciences, Federal Courts, Human Rights Litigation

JEL Classifications: K19, K33, K49

Accepted Paper Series