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

See all articles by Kenneth C. Randall

Kenneth C. Randall

University of Alabama - School of Law

Chimène Keitner

University of California Hastings College of the Law

Date Written: July 15, 2010

Abstract

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

Suggested Citation

Randall, Kenneth C. and Keitner, Chimène, Sabbatino, Sosa, and 'Supernorms' (July 15, 2010). LOOKING TO THE FUTURE: ESSAYS ON INTERNATIONAL LAW IN HONOR OF W. MICHAEL REISMAN, Mahnoush H. Arsanjani, ed., Martinus Nijhoff, October 2010. Available at SSRN: https://ssrn.com/abstract=1876721

Kenneth C. Randall

University of Alabama - School of Law ( email )

P.O. Box 870382
Tuscaloosa, AL 35487
United States

Chimène Keitner (Contact Author)

University of California Hastings College of the Law ( email )

200 McAllister Street
San Francisco, CA 94102
United States

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