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Law of Nations

Case: Sosa v. Alvarez-Machain (2004; US)

Facts/Background: see United States v. Alvarez-Machain


• There is CIL against this kind of kidnapping.

○ Alvarez argues that b/c treaty doesn’t explicitly mention about
kidnapping, etc., so we should use CIL as gap-filler.
○ Since it's CIL, it doesn’t need to be explicitly mentioned, it is
understood you can't do this.
○ CIL would color the interpretation of the extradition treaty, and that's
how it relates to this treaty
• Here, Alvarez brings a civil suit
• Here the court is sill welcoming for the use of CIL in certain circumstances
• When can we, and cannot, use CIL? Specifically in the context of the Alien Tort
Statute (ATS)?
○ ATS also known as ATCA (Alien Tort Claims Act)
• Counsel for Dr Alvarez:
○ The statute says "the courts shall gave 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 US"
○ In this case, kidnapping violates the law of nations (like piracy or
torture in filartiga)
• Counsel for Mr Sosa
○ Statute only confers jurisdiction; no private right of action in statute,
and not intended by founders
§ Founders intended jurisdiction only on torts committed by foreigners
in federal court
§ Doesn’t lay out substantive grounds for a tort, only procedural
§ Congress would have to enact additional legislation on what
substantive claims could be tied into ATS
• Majority doesn’t agree totally with either Alvarez or Sosa
○ They take a middle course
○ Reject Sosa's argument that its purely procedural
§ They look at legislative history, and its pretty clear drafters
intended it to have immediate substantive effect
• So what violations of CIL should be covered by ATS?
○ Only covers torts related to law of nations in the 1700s (only what
drafters intended)
○ "Law of nations" is a living term (Living term - where the way we look at
terms, evolves over time)
§ Alvarez argues this.
§ Court doesn’t totally agree
• ATS not limited to only piracy, torture, etc., but they will open the door to
new claims very narrowly.
○ TEST: Pg. 253 IV - we think courts should require any claim based on the
present-day law of nations rest on a norm of international character accepted by
the civilized world and defined with a specificity comparable to the features of
the 18th century.
○ Does Alvarez's abduction satisfy this test? - No.
§ There has to be a specificity. Abduction doesn’t have that
§ Court looks at treatises, what other countries are doing, etc. Want
to see if norm is specific enough. It's not.
• Pg 261, note 4. Praises Judge in this case.

• First case - court wont take into consideration CIL, but in 2nd case, court will
take Cil into consideration b/c ATS specifically says to look at it, but will only
look at it very narrowly