20 Pages Posted: 12 Feb 2005
Although the Alien Tort Claims Act of 1789 establishes concurrent jurisdiction of federal and state courts in actions by aliens for torts that violate "the law of nations," and although in 1789 the law of nations was much broader than what later came to be called "international law," none of the opinions of the U.S. Supreme Court justices in Sosa v. Alvarez-Machain, and none of the briefs of counsel for the parties or of friends of the court, refer to the distinction between the two, and all treat the 1789 statute as though it said "international law" or "customary international law." The terms "international" and "international law" were neologisms invented by Jeremy Bentham in the 1780s for the express purpose of replacing both the name and the concept of a law of nations that transcends inter-state treaties and agreements.
The Article traces briefly the evolution of the concept of a law of nations from its source in the ancient Roman jus gentium to its culmination in the late 18th century. The great American jurists who drafted the United States Constitution and the 1789 Judiciary Act on which the Alien Tort Claims Act was based were steeped in the European writings on the law of nations, which included not only inter-state treaties and agreements, called jus inter gentes, but also the law common to all nations, called jus intra gentes. The Founding Fathers were also strongly influenced by Blackstone's 4-volume "Commentaries on the Laws of England", published in 1765 to 1769, in which Blackstone wrote that the law of nations is part of English common law and that it includes not only such inter-state matters as rights of ambassadors and rights of safe conduct under passports but also such universal intra-state matters as maritime law and the law merchant.
In the new American Republic, the law of nations was understood to be part of both federal common law and state common law. The United States Constitution gave Congress the power to enact laws that defined and punished piracy and other crimes that violate the law of nations, and the 1789 Judiciary Act gave federal courts concurrent jurisdiction over civil actions by aliens for torts that violated the law of nations if the amount in controversy exceeded $500. Thus most types of violations of the law of nations were left in the sole competence of state courts. Also the law of nations itself, in the broad sense in which it was understood, contained rules of competence of courts and of conflict of laws that gave jurisdiction in most types of criminal and civil cases to courts of the place where the crime was committed or the place where the civil obligation arose.
Although the Article does not analyze the Sosa case, it does take issue with a statement in the concurring opinion of Justice Scalia in which he accuses "20th century internationalist law professors and human-rights activitists" of "redefining" the law of nations "to mean the consensus of states on any subject." It is not, however, the consensus of states but the consensus of mankind, and not on any subject but on some subjects, that can indeed give rise to liability under the law of nations as it was understood in 1789 and as it has been revived in recent times. Such consensus exists with respect to state sponsored torture. It is suggested that it may also exist with respect to state sponsored kidnapping of a foreign suspect in order to avoid the likelihood of failure to obtain extradition under an extradition treaty.
Suggested Citation: Suggested Citation
Berman, Harold, The Alien Tort Claims Act and the Law of Nations. Emory International Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=666146