Sabbatino, Sosa, and 'Supernorms'
LOOKING TO THE FUTURE: ESSAYS ON INTERNATIONAL LAW IN HONOR OF W. MICHAEL REISMAN, Mahnoush H. Arsanjani, ed., Martinus Nijhoff, October 2010
Posted: 9 Jul 2011
Date Written: July 15, 2010
In this essay, which is available in the published collection of essays in honor of our former teacher, W. Michael Reisman, we explore how the New Haven School helps to explain and define the contribution to world public order of U.S. civil jurisdiction over certain international law claims. We suggest that the U.S. Supreme Court's foundational decisions in Banco Nacional de Cuba v. Sabbatino and Sosa v. Alvarez-Machain demonstrate the Court's application of a consistent, overarching principle of restraint: a U.S. courts should adjudicate only claims involving what we call "supernorms." In short, a supernorm is an international legal prohibition that has become so crystallized and entrenched as to be effectively unquestionable and inviolable either by sovereign entities or by individuals, particularly those acting under color of state authority. International law sources, on their face, clearly define an array of profoundly important rights that merit protection from infringement by sovereigns and sovereign actors, as well as private actors in certain instances. The implementation of these rights is consistent with the judiciary's responsibilities in both the domestic and world legal orders.
Keywords: Sabbatino, Sosa, customary international law, alien tort
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