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Lessons from the Alien Tort Statute: Jus Cogens as
the Law of Nations
DR. THOMAS WEATHERALL*
This Note considers a judicial practice that identifies jus cogens as the law of
nations by evaluating Alien Tort Statute jurisprudence. While it is generally accepted that a norm belonging to jus cogens is sufficient to fall within the jurisdictional scope of the Alien Tort Statute, this Note examines the stronger claim that jus
cogens constitutes an external restriction on the application of the Alien Tort Statute
by undertaking a comprehensive analysis of the treatment of jus cogens in Alien Tort
Statute jurisprudence. After considering historical, constitutional, and doctrinal
implications of such a relation—and the absence of clear guidance by the Supreme
Court or Congress—this Note ultimately endorses a practice that identifies jus
cogens as the law of nations. This Note is intended to provide scholars and
practitioners with a resource to better understand and apply a coherent strand in an
otherwise winding U.S. jurisprudence under the Alien Tort Statute.
TABLE OF CONTENTS
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1360
I. THE LAW OF NATIONS AND JUS COGENS . . . . . . . . . . . . . . . . . . . . .
1361
A.
THE LAW OF NATIONS
..............................
1361
B.
JUS COGENS
.....................................
1362
II. INTERPRETATION OF THE ATS . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1365
A.
TEXTUALISM
....................................
1366
B.
CONTEXTUALISM
..................................
1367
III. CONSTRUCTION OF THE ATS . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1370
A.
THE DEVELOPMENT OF JUS COGENS AFTER WORLD WAR II
.......
1371
B.
THE LAW OF NATIONS AND JUS COGENS IN DOMESTIC COURTS
....
1373
1.
Explicit Reference to Jus Cogens . . . . . . . . . . . . . . . . .
1373
2.
Implicit Reliance on Jus Cogens . . . . . . . . . . . . . . . . . .
1375
* Georgetown University Law Center, J.D. 2015; University of Cambridge (King’s College), Ph.D.
2012; University of Oxford (Worcester College), M.Sc. 2009. © 2015, Thomas C. Weatherall. The
views expressed herein are the author’s own and not necessarily those of the Department of State or the
U.S. Government. I am grateful to Representative Eleanor Holmes Norton for her comments on an
earlier draft of this Note.
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IV. IMPLICATIONS OF JUS COGENS AS THE LAW OF NATIONS . . . . . . . . . .
A.
1378
HISTORICAL ASPECTS OF THE LAW OF NATIONS AS AN EXTERNAL
..................................
1378
......
1380
...........
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CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1386
SOURCE OF LAW
B.
CONSTITUTIONAL CONSIDERATIONS OF JUDICIAL PRACTICE
C.
CRITIQUE OF JUS COGENS AS THE LAW OF NATIONS
INTRODUCTION
In 1789, the first Congress ratified the Alien Tort Statute (ATS), granting
federal courts jurisdiction to adjudicate tort claims by aliens for violations of the
“law of nations.”1 Congress declined to define the law of nations pursuant to its
Article I power and the Statute went virtually unused for 170 years. After the
Second World War, the doctrine of jus cogens emerged in international law
delineating fundamental international norms from which no derogation is permitted.2 Shorty after the emergence of this doctrine in international law, litigation
for violations of the law of nations under the ATS burgeoned. Throughout this
period, however, textual and contextual modes of statutory interpretation have
revealed little about the content of the law of nations. Congressional action in
1991 to buttress the ATS provided no substantive guidance,3 and in Sosa v.
Alvarez-Machain,4 the Supreme Court articulated only an ambiguous standard it
repeated nearly a decade later in Kiobel v. Royal Dutch Petroleum Co.5
Although it is generally accepted that a norm belonging to jus cogens would
satisfy the Supreme Court’s standard for the law of nations, this Note posits that
the conclusion to be drawn from ATS jurisprudence is that jus cogens is the law
of nations. In turn, this Note proposes that federal courts should expressly apply
jus cogens as an external, restrictive qualification of ATS claims for violations
of the law of nations. Relying on jus cogens to give meaning to the law of
nations provides for predictable and uniform jurisprudence across the federal
judiciary and narrows subject-matter jurisdiction under the ATS consistently
with the object and purposes of the Statute. Moreover, because it remains true
today that the majority of suits brought under the ATS are dismissed—most
often for failure to state a cause of action6—jus cogens has the great benefit of
1. Act of Sept. 24, 1789, ch. 20, § 9, 1 Stat. 73, 77.
2. Documents of the Fifth Session Including the Report of the Commission to the General Assembly,
[1953] 2 Y.B. Int’l L. Comm’n 155, U.N. Doc. A/CN.4/SER.A/1953/Add.1 [hereinafter Documents of
the Fifth Session]. See also Vienna Convention on the Law of Treaties art. 53, opened for signature
May 22, 1969, 1155 U.N.T.S. 331 (entered into force Jan. 27, 1980) [hereinafter Vienna Convention].
3. Torture Victim Protection Act of 1991, Pub. L. No. 102-256, 106 Stat. 73 (1992) (codified at 28
U.S.C. § 1350 note (1994)).
4. 542 U.S. 692 (2004).
5. 133 S.Ct. 1659 (2013).
6. BETH STEPHENS ET AL., INTERNATIONAL HUMAN RIGHTS LITIGATION IN U.S. COURTS 21 (2d ed. 2008).
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providing clarity to litigants and judges at the outset of ATS litigation. A jus
cogens approach to the ATS successfully repels scholarly criticisms that it
would constitute a mere judge-made limitation that unduly circumscribes the
scope of the ATS.
Part I of this Note introduces the U.S. law concept of the law of nations and
the international law doctrine of jus cogens. Next, this Note presents the canons
of statutory interpretation used by courts to effectuate the ATS, which have
looked to textualism, congressional intent, and contextualism to give meaning
to the law of nations under the ATS. Part III addresses the jurisprudence of
federal courts, which reveals that in applying this guidance courts have expressly and implicitly referred to jus cogens to define the law of nations. This
Note concludes by weighing the practical implications of jus cogens as the law
of nations from historical and constitutional perspectives and endorses the
approach, while also considering the main heads of critique.
I. THE LAW OF NATIONS AND JUS COGENS
A. THE LAW OF NATIONS
The concept of the law of nations is of natural law origin.7 Hugo Grotius,
Samuel Pufendorf, and Emerich de Vattel each advanced theories of the law of
nations as natural law applied to the relations of states.8 This law of nations has
long formed a part of U.S. jurisprudence.9 At the founding of the United States,
respect for the law of nations was recognized as requisite to joining the ranks of
sovereign states.10 In The Federalist No. 3, John Jay implored that “[i]t is of
high importance to the peace of America that she observe the laws of nations
towards all . . . powers.”11 At that time, the newly independent states were
flagrantly violating certain rights of foreigners, most notably property interests
of British citizens, to such an extent as to make “a mockery of the federal
government’s authority, . . . compromising the security of the nation.”12 Jay saw
7. HERSCH LAUTERPACHT, AN INTERNATIONAL BILL OF THE RIGHTS OF MAN 41 (1945) (“We can trace the
same mutuality of influence in the relations of international law and the law of nature.”).
8. HUGO GROTIUS, DE JURE BELLI AC PACIS LIBRI TRES (James Brown Scott ed., Francis Kelsey trans.,
1925) (1646); SAMUEL PUFENDORF, DE JURE NATURAE ET GENTIUM LIBRI OCTO (James Brown Scott ed.,
C.H. Oldfather & W.A. Oldfather trans., 1934) (1688); EMER DE VATTEL, LE DROIT DES GENS, OU,
PRINCIPES DE LA LOI NATURELLE APPLIQUIE´ S A` LA CONDUITE ET AUX AFFAIRES DES NATIONS ET DES SOUVERAINS
(James Brown Scott ed., Charles G. Fenwick trans., 1916) (1797).
9. See, e.g., Act of Sept. 24, 1789, ch. 20, § 9, 1 Stat. 73, 77; Sosa, 542 U.S. at 715–16 (“Before
there was any ATS, a distinctly American preoccupation with these hybrid international norms had
taken shape owing to the distribution of political power from independence through the period of
confederation.”); Al Bahlul v. United States, 767 F.3d 1, 54 (D.C. Cir. 2014) (Brown, J., concurring in
the judgment in part and dissenting in part) (“Both the drafters of the Constitution and their eighteenthcentury audience would have had more than a passing familiarity with Blackstone and Locke—and,
perhaps, Vattel, Grotius, and other theorists . . . .”).
10. THE FEDERALIST NO. 3 (John Jay).
11. Id. at 37 (Clinton Rossiter ed., 1961).
12. Tara Helfman, The Law of Nations in The Federalist Papers, 23 J. LEGAL HIST. 107, 115 (2002).
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respect for basic norms of international law as a key to peaceful international
relations, and a national government as the most effective means to that end.13
In this vein, Hamilton and Madison contemplated that a federal representative
should be acquainted with the law of nations,14 and that a federal judiciary
should be competent to hear cases arising not only from treaties but also under
the laws of nations.15
Both the U.S. Constitution and the first Judiciary Act of 1789 reflect the
predilection of the founders toward the law of nations. Article I of the Constitution grants to the legislative branch of the federal government the power “[t]o
define and punish Piracies and Felonies committed on the high Seas, and
Offences against the Law of Nations.”16 The ATS, enacted by the first Congress
as part of the Judiciary Act of 1789, provided that district courts “shall also have
cognizance, concurrent with the courts of the several States, or the circuit
courts, as the case may be, of all causes where an alien sues for a tort only in
violation of the law of nations or a treaty of the United States.”17 While the ATS
has since been amended, it still confers Article III jurisdiction to district courts
over claims by aliens arising under the law of nations: “The district courts shall
have 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 United States.”18
The Statute reflects an early concern over respect for the law of nations with
particular regard to foreigners.19 The law of nations, to which the ATS gives
effect, constitutes “a sphere in which [the] rules binding individuals for the
benefit of other individuals overlapped with the norms of state relationships.”20
B. JUS COGENS
The doctrine of jus cogens was formally codified in the 1969 Vienna Convention on the Law of Treaties.21 Literally translating from Latin as “compelling
law,” the concept is of Roman law origin and refers to fundamental principles
and rules that cannot be compromised by the will of parties to a contract.22 Jus
cogens fits naturally within the law of treaties because the scope of permissible
treaties, like contracts, is inherently limited. The concept was introduced into
the law of treaties by Hersch Lauterpacht, the second of four Special Rappor-
13. THE FEDERALIST NO. 3 (John Jay).
14. THE FEDERALIST NO. 53 (Alexander Hamilton or James Madison).
15. THE FEDERALIST NO. 80 (Alexander Hamilton).
16. U.S. CONST. art. I, § 8, cl. 10.
17. Act of Sept. 24, 1789, ch. 20, § 9, 1 Stat. 73, 77.
18. 28 U.S.C. § 1350 (2006); see also Sosa v. Alvarez-Machain, 542 U.S. 692, 713 (2004) (“As
enacted in 1789, the ATS gave the district courts ‘cognizance’ of certain causes of action, and the term
bespoke a grant of jurisdiction . . . .”).
19. See Sosa, 542 U.S. at 718–20.
20. Id. at 715.
21. Vienna Convention, supra note 2.
22. Egon Schwelb, Some Aspects of International Jus Cogens as Formulated by the International
Law Commission, 61 AM. J. INT’L L. 946, 948 (1967).
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teurs of the International Law Commission responsible for drafting the law of
treaties, who identified the existence of norms “expressive of rules of international morality so cogent that an international tribunal would consider them as
forming part of the principles of law generally recognized by civilized nations.”23 The subsequent Special Rapporteur, Gerald Fitzmaurice, similarly
acknowledged such a category of norms in “cases where the position of the
individual is involved, and where the rules contravened are rules instituted for
the protection of the individual.”24 Fitzmaurice continued, “[A] feature common
to them, or to a great many of them, evidently is that they involve not only legal
rules but considerations of morals and of international good order.”25 The final
text of Article 53 of the Vienna Convention, concerning jus cogens, provides
that a “treaty is void if, at the time of its conclusion, it conflicts with a
peremptory norm of general international law.”26 It further defines a peremptory
norm as “a norm accepted and recognized by the international community of
States as a whole as a norm from which no derogation is permitted.”27
Although jus cogens was formally codified in the context of treaties, Article
53 has very rarely been invoked to invalidate a treaty in conflict with jus
cogens.28 This suggests that the provision was not primarily intended to forestall states from concluding treaties pursuant to campaigns of genocide or
slavery (though the Article clearly has that effect). Instead, Article 53 served as
a vessel to codify the concept in a structurally logical area of international law,
as indicated by the chairman of the drafting committee of the Vienna Convention.29 The principle of non-derogation articulated by Article 53 of the Vienna
Convention has been subsequently interpreted to prevent states from deviating
from jus cogens norms at any time (even during national emergencies), reinforcing application of the concept beyond the law of treaties.30
In effect, jus cogens constrains the range of conduct the state may authorize,
23. Documents of the Fifth Session, supra note 2.
24. Documents of the Tenth Session including the Report of the Commission to the General
Assembly, [1958] 2 Y.B. Int’l L. Comm’n 40, U.N. Doc. A/CN.4/SER.A/1958/Add.1.
25. Id. at 41.
26. Vienna Convention, supra note 2, at 344.
27. Id.
28. Two rare cases illustrate the point. The first applies an overly broad conceptualization of jus
cogens to reach the derogation question. See Corte Suprema de Justicia de la Nacio´n [CSJN] [National
Supreme Court of Justice], 5/12/1983, “Cabrera, Washington J.E. c. Comisio´n Te´cnica Mixta de Salto
Grande,” Fallos (1993-305-2150) (Arg.) (finding a headquarters agreement granting immunity from
judicial process to a corporation violated a supposed peremptory norm guaranteeing access to judicial
protection codified in the Argentine Constitution). The second considers a 1762 treaty containing a
slavery arrangement invalid under Article 64 of the Vienna Convention on the Law of Treaties as
conflicting with a subsequent peremptory norm. See Aloeboetoe et al. v. Suriname, Reparations, and
Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 15, ¶¶ 55–58 (Sept. 10, 1993).
29. United Nations Conference on the Law of Treaties, Vienna, Austria, Mar. 26–May 24, 1968,
Summary Records of the Plenary Meetings and of the Meetings of the Committee of the Whole, ¶ 21,
U.N. Doc. A/CONF.39/11/Add.1 (May 4, 1968).
30. U.N. Human Rights Comm., General Comment 29, States of Emergency (Article 4), ¶ 11, U.N.
Doc. CCPR/C/21/Rev.1/Add.11 (2001).
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giving rise to obligations erga omnes owed to the international community as a
whole,31 by virtue “of the importance of the rights involved, [whereby] all
States can be held to have a legal interest in their protection.”32 The performance of such obligations arising from jus cogens requires states to prevent and
punish violations of peremptory norms.33 Jus cogens is closely related to the
doctrine of international criminal law, and violation of a norm belonging to jus
cogens constitutes an international crime.34 To this end, individual responsibility is at the core of the legal regime of jus cogens, as discussed by the
International Criminal Tribunal for the former Yugoslavia (ICTY) in the seminal
Furundzˇija case.35 One legal effect of jus cogens is to provide universal
jurisdiction over international crimes,36 pursuant to obligations erga omnes of
states that require punishment of individual violators of jus cogens by prosecution or, in the alternative, extradition.37 Universal jurisdiction provides an
alternative to the traditional bases of jurisdiction—territory, nationality, protection, and passive personality38—granting states jurisdiction over international
crimes which is arguendo applicable equally to criminal and civil proceedings.39 The ICJ has recognized the prohibitions of slavery,40 war crimes,41
31. See, e.g., Questions Relating to Obligation to Prosecute or Extradite (Belg. v. Sen.), 2012 I.C.J.
422, ¶ 69 (July 20); Application of Convention on Prevention and Punishment of Crime of Genocide
(Bosn. & Herz. v. Serb. & Montenegro), 2007 I.C.J. 47, ¶¶ 147, 162 (Feb. 26); Armed Activities on
Territory of Congo (New Application: 2002) (Dem. Rep. Congo v. Rwanda), 2006 I.C.J. 6, ¶¶ 64, 125
(Feb. 3); Legal Consequences of Construction of Wall in Occupied Palestinian Territory, Advisory
Opinion, 2004 I.C.J. 136, ¶¶ 88, 155–57 (July 9); East Timor (Port. v. Austl.), 1995 I.C.J. 90, ¶ 29 (June
30); Barcelona Traction, Light & Power Co. (New Application: 1962) (Belg. v. Spain), 1970 I.C.J. 3, ¶¶
33–34 (Feb. 5); Responsibility of States for Internationally Wrongful Acts arts. 40–41, [2001] 2 Y.B.
Int’l L. Comm’n (Part 2) 26, U.N. Doc. A/56/49(Vol. I)/Corr.4.
32. Barcelona Traction, Light & Power Co., 1970 I.C.J. ¶ 33.
33. Application of Convention on Prevention and Punishment of Crime of Genocide (Bosn. & Herz.
v. Yugoslavia), 1996 I.C.J. 595, ¶ 31 (July 11).
34. Jochen Abr. Frowein, Jus Cogens, in 3 ENCYCLOPEDIA OF PUBLIC INTERNATIONAL LAW 65, 68
(Rudolf Bernhardt ed., 1997) (“A crime in this sense is seen as a violation of basic rules of jus
cogens.”).
35. Prosecutor v. Furundzˇija, Case No. IT-95-17/1-T, Judgment, ¶ 156 (Int’l Crim. Trib. for the
Former Yugoslavia Dec. 10, 1998).
36. See, e.g., R v. Bartle, ex parte Pinochet Ugarte, [2000] 1 A.C. 147 (H.L.) [198] (appeal taken
from Eng.) (Browne-Wilkinson, L.) (“The jus cogens nature of the international crime of torture
justifies states in taking universal jurisdiction over torture wherever committed. International law
provides that offences jus cogens may be punished by any state because the offenders are ‘common
enemies of all mankind and all nations have an equal interest in their apprehension and prosecution.’”
(quoting Demjanjuk v. Petrovsky, 603 F. Supp. 1468 (N.D. Ohio 1985))).
37. Questions Relating to the Obligation to Prosecute or Extradite (Belg. v. Sen.), 2012 I.C.J. 422, ¶
95 (July 20); see also Mads Andenas & Thomas Weatherall, II. International Court of Justice:
Questions Relating to the Obligation to Extradite or Prosecute (Belgium v. Senegal) Judgment of 20
July 2012, 62 INT’L & COMP. L.Q. 753, 762–64 (2013). States are of course free to conclude agreements
to extradite or prosecute offenders of rules not belonging to jus cogens. See, e.g., 1988 Protocol for the
Suppression of Unlawful Acts Against the Safety of Fixed Platforms Located on the Continental Shelf
art. 3(4), opened for signature Mar. 10, 1988, 1678 U.N.T.S. 304 (entered into force Mar. 1, 1992).
38. RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW § 404 cmt. a (1987).
39. See Sosa v. Alvarez-Machain, 542 U.S. 692, 762–63 (2004) (Breyer, J., concurring).
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crimes against humanity,42 aggression,43 genocide,44 systematic racial discrimination,45 and torture46 to belong to jus cogens. Extensive regional and domestic
jurisprudence has reinforced this catalogue, to which piracy47 and terrorism48
may be added.
II. INTERPRETATION OF THE ATS
The founders perceived the law of nations to be necessary to peaceful
international relations. To them, failure to provide judicial remedy for violations
of such international norms was a cause for war.49 At the very least, respect for
the law of nations was necessary to join the early international community.50
Notwithstanding the apparent importance of the ATS to this end, only one case
was heard under the Statute in the 170 years following its enactment.51 It was
not until 1980 that the Second Circuit, in Filartiga v. Pena-Irala, signaled new
relevance of the Statute in contemporary jurisprudence.52 The case was brought
by the parents of Joelito Fila´rtiga, a seventeen-year-old kidnapped and tortured
to death in March 1976 by Ame´rico Norberto Pen˜a Irala, the Inspector General
of Police in Asuncio´n, Paraguay. The Second Circuit determined that the
prohibition against torture belonged to the law of nations because it had been
universally recognized by all nations.53 The Fila´rtigas were accordingly awarded
$10.4 million.54
In its judgment, the Second Circuit observed that the “paucity of suits
successfully maintained under the section is readily attributable to the statute’s
40. See Jurisdictional Immunities of State (Ger. v. It.: Greece Intervening), 2012 I.C.J. 99, ¶ 93
(Feb. 3).
41. See id. ¶ 95 (noting that the Arrest Warrant case concerned “criminal violations of rules which
undoubtedly possess the character of jus cogens”); Legal Consequences of Construction of Wall in
Occupied Palestinian Territory, Advisory Opinion, 2004 I.C.J. 136, ¶ 157 (July 9); Arrest Warrant of 11
April 2000 (Dem. Rep. Cong. v. Belg.), 2002 I.C.J. 3, ¶ 13 (Feb. 14).
42. See Jurisdictional Immunities of State, 2012 I.C.J. ¶ 95; Arrest Warrant of 11 April 2000, 2002
I.C.J. ¶ 13.
43. See Accordance with International Law of Unilateral Declaration of Independence in Respect of
Kosovo, 2010 I.C.J. 403, ¶ 81 (July 22).
44. See Application of Convention on Prevention and Punishment of Crime of Genocide (Bosn. &
Herz. v. Serb. & Montenegro), 2007 I.C.J. 47, ¶¶ 147, 162 (Feb. 26); Armed Activities on Territory of
Congo (New Application: 2002) (Dem. Rep. Congo v. Rwanda), 2006 I.C.J 6, ¶¶ 64, 125 (Feb. 3).
45. See Armed Activities on Territory of Congo, 2006 I.C.J ¶ 78.
46. See, e.g., Questions Relating to Obligation to Prosecute or Extradite (Belg. v. Sen.), 2012 I.C.J.
422, ¶ 99 (July 20).
47. See, e.g., R v Tang [2008] HCA 39, ¶ 111 (Austl.) (Kirby, J.).
48. See, e.g., Cour de cassation [Cass.] [supreme court for judicial matters] 2e civ., Mar. 9, 2011,
Bull. civ. II, No. 09-14743 (Fr.); Prosecutor v. Galic´, Case No. IT-98-29-T, Judgment, ¶ 98 (Int’l Crim.
Trib. for the Former Yugoslavia Dec. 5, 2003).
49. See supra Part I.A.
50. See THE FEDERALIST NO. 3 (John Jay).
51. See Sosa v. Alvarez-Machain, 542 U.S. 692, 712 (2004).
52. 630 F.2d 876 (2d Cir. 1980).
53. Id. at 881.
54. Filartiga v. Pena-Irala, 577 F. Supp. 860, 867 (E.D.N.Y. 1984).
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requirement of alleging a ‘violation of the law of nations’ . . . at the jurisdictional threshold.”55 Indeed, prior to the second half of the twentieth century,
there was no clear body of international law to which courts might turn to
identify causes of action within the scope of the ATS. The text and historical
context of the Statute provide some guidance, as does the test set out by the
Supreme Court in Sosa v. Alvarez-Machain.56 This Part examines each of these
elements which, even taken together, provide little conclusive guidance for
federal courts interpreting the law of nations.
A. TEXTUALISM
When confronted with questions of statutory construction, courts attempt to
“determine congressional intent,”57 and to do so, the “starting point is the
language of the statute.”58 In construing the ATS, courts contemplate the Statute
as a grant of subject-matter jurisdiction to federal courts where three elements
are satisfied: (1) an action is brought by an alien, (2) for a tort, and (3) in
violation of the law of nations.59 The Second Circuit noted in this context that it
is not “extraordinary” for a court to entertain tort claims for acts occurring
outside its territorial jurisdiction,60 and the text of the Statute is equally unambiguous in its applicability to actions brought by aliens. Consequently, by
contrast to the clarity of the first two elements of the ATS, the “threshold
question on the jurisdictional issue is whether the conduct alleged violates the
law of nations.”61 To this end, a “violation of the law of nations” provides a
cause of action that satisfies this third element and permits invocation of the
ATS.62 While one might naturally read this grant of federal jurisdiction over
violations of the law of nations in relation to the Article I power of Congress to
define offenses against the law of nations, the legislature has declined to
exercise this power.63 This has not, however, prevented courts from exercising
jurisdiction under the ATS. To entertain actions under the Statute, courts have
necessarily employed other methods of statutory interpretation.
Although interpretation begins with the text of a statute, courts also “look to
the provisions of the whole law, and to its object and policy” to ascertain textual
meaning.64 The ATS, which was contained in the ninth section of the 1789
55. Filartiga, 630 F.2d at 887.
56. 542 U.S. 692 (2004).
57. NLRB v. United Food & Commercial Workers Union, Local 23, 484 U.S. 112, 123 (1987).
58. Schreiber v. Burlington N., Inc., 472 U.S. 1, 5 (1985).
59. Filartiga, 630 F.2d at 887.
60. Id. at 885.
61. Id. at 880.
62. Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 779 (D.C. Cir. 1984).
63. Moreover, the ATS itself is not an exercise of the Define and Punish Clause, but merely a grant
of federal jurisdiction. See Filartiga, 630 F.2d at 886–87.
64. Massachusetts v. Morash, 490 U.S. 107, 115 (1989) (quoting Pilot Life Ins. Co. v. Dedeaux, 481
U.S. 41, 51 (1987)); see also Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 220–21 (1986)
(holding that meaning of a phrase is clarified by language and purpose of act as a whole).
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Judiciary Act, merely reinforced the subject-matter jurisdiction of federal courts
with respect to matters arising under the “law of nations.”65 Its placement in the
Judiciary Act indicates that the ATS is only jurisdictional in nature and did not
create new rights enforceable by aliens.66 Relatedly, Article III, Section 2 of the
Constitution contains a grant of jurisdiction to federal courts specifically over
cases “affecting Ambassadors, other public Ministers and Consuls.”67 The
Judiciary Act reinforced original jurisdiction over suits by diplomats,68 and
provided for alienage jurisdiction.69 Therefore, when supplemented by consideration of the Judiciary Act as a whole, and indeed the jurisdiction of federal
courts at the founding more generally, the ambiguity of the text of the ATS
regarding the subject matter over which it grants federal jurisdiction is compounded: its wholly jurisdictional character deprives the text of internal substantive content.
B. CONTEXTUALISM
The historical origins of the ATS lie in the need to harmonize the adjudication
of matters of international law across the Union and, pursuant to this end, the
Statute grants federal courts jurisdiction over cases involving aliens that implicate the law of nations.70 One particular event, the Marbois Incident of May
1784, is thought to have spurred the need for such jurisdiction. The incident
concerned the assault of the Secretary of the French Legion in Philadelphia by a
French adventurer, De Longchamps; Secretary Jay reported to Congress that
“the federal government does not appear . . . to be vested with any judicial
Powers competent to the Cognizance and Judgment of such Cases.”71 The
inability of the U.S. judiciary to provide judicial remedy in this instance was an
embarrassment to the United States.72 It was recognized by the founders that
violations of the law of nations, if not adequately redressed, could escalate to an
issue of war.73 Yet prior attempts to resolve the matter, namely a congressional
65. See Sosa v. Alvarez-Machain, 542 U.S. 692, 717 (2004).
66. See Filartiga, 630 F.2d at 887.
67. U.S. CONST. art. III, § 2.
68. Act of Sept. 24, 1789, ch. 20, § 13, 1 Stat. 73, 80.
69. Id. § 11.
70. See Filartiga, 630 F.2d at 887 (“Under the national government, treaties and articles of treaties,
as well as the laws of nations, will always be expounded in one sense and executed in the same
manner—whereas adjudications on the same points and questions in the thirteen States . . . will not
always accord or be consistent.” (quoting THE FEDERALIST NO. 3 (John Jay) (Clinton Rossiter ed.,
1961))).
71. Sosa v. Alvarez-Machain, 542 U.S 692, 717 (2004) (quoting William R. Casto, The Federal
Courts’ Protective Jurisdiction over Torts Committed in Violation of the Law of Nations, 18 CONN. L.
REV. 467, 494 n.152 (1986)).
72. See Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659, 1668–69 (2013).
73. See Sosa, 542 U.S. at 715 (“It was this narrow set of violations of the law of nations, admitting
of a judicial remedy and at the same time threatening serious consequences in international affairs, that
was probably on minds of the men who drafted the ATS with its reference to tort.”); THE FEDERALIST NO.
80 (Alexander Hamilton)) (“As the denial or perversion of justice . . . is with reason classed among the
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resolution calling on state legislatures to protect individual rights arising under
the law of nations, had been ineffective.74 The ATS was part of a federal
solution to the problem—in addition to Article III, Section 2 of the Constitution,
and alongside other provisions of the first Judiciary Act—expressly granting
subject-matter jurisdiction to federal courts to adjudge claims by aliens for
violations of the law of nations.
Although it was not uncommon for legislation at the time of the founding to
be accompanied by substantial pre- and post-enactment legislative history,75 the
ATS is accompanied by no such record. According to the Court, there is neither
legislative history concerning what causes of action might fall within the scope
of the ATS, nor any indication in the Congressional Record of a need for further
legislation to implement the jurisdictional grant.76 The logical inference drawn
from this omission has been that the law of nations referred to by the ATS is a
category of international law recognized at common law, a point so obvious to
the framers of the Statute as to require no further comment. As the Supreme
Court noted in Sosa:
But holding the ATS jurisdictional raises a new question, this one about the
interaction between the ATS at the time of its enactment and the ambient law
of the era. Sosa would have it that the ATS was stillborn because there could
be no claim for relief without a further statute expressly authorizing adoption
of causes of action. Amici professors of federal jurisdiction and legal history
take a different tack, that federal courts could entertain claims once the
jurisdictional grant was on the books, because torts in violation of the law of
nations would have been recognized within the common law of the time. We
think history and practice give the edge to this latter position.77
This conclusion indicates that the law of nations refers to a body of international
law incorporated as federal common law.
The historical context of the period reveals the kind of norms that would have
been recognized at common law as belonging to the law of nations.78 These
were norms recognized in Blackstone’s Commentaries as “offenses against
the law of nations addressed by the criminal law of England: violation of safe
conducts, infringement of the rights of ambassadors, and piracy.”79 International
just causes of war, it will follow that the federal judiciary ought to have cognizance of all causes in
which the citizens of other countries are concerned.”).
74. See Sosa, 542 U.S. at 716.
75. See, e.g., District of Columbia v. Heller, 554 U.S. 570 (2008) (debating substantial legislative
history surrounding ratification of the Second Amendment). But see McDonald v. City of Chicago, 561
U.S. 742, 834 (2010) (Thomas, J., concurring) (“That said, the record of the debates—like most
legislative history—is less than crystal clear.”).
76. See Sosa, 542 U.S. at 718–19.
77. Id. at 714 (internal citation omitted).
78. See Filartiga v. Pena-Irala, 630 F.2d 876, 885 (2d Cir. 1980) (“The constitutional basis for the
Alien Tort Statute is the law of nations, which has always been part of the federal common law.”).
79. Sosa, 542 U.S. at 715 (citing 4 WILLIAM BLACKSTONE, COMMENTARIES *68).
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law, just as any other law, progresses and evolves with the society from which it
emanates, a proposition long recognized by U.S. courts.80 Therefore, the contemporary law of nations is ascertainable by analogy. As noted by the Second
Circuit in Filartiga, “courts must interpret international law not as it was in
1789, but as it has evolved and exists among the nations of the world today.”81
Not long after the Filartiga decision, Congress adopted the Torture Victim
Protection Act of 1991 (TVPA).82 Enacted as a note appended to the ATS, the
TVPA codified the holding of Filartiga83 and responded to the dismissal by the
D.C. Circuit of a cause of action arising under the law of nations recognized in
Filartiga.84 The TVPA was intended to “enhance the remedy already available”
under the ATS by expanding federal jurisdiction over claims arising from torture
in violation of the law of nations filed by U.S. citizens in addition to aliens.85
By supplementing the ATS with the TVPA, Congress approved and defended
the emerging judicial practice under the ATS, which is expressly indicated in
relevant reports by the House and Senate Judiciary Committees.86 The House
Report indicated that “claims based on torture or summary executions do not
exhaust the list of actions that may appropriately be covered by section 1350.
That statute should remain intact to permit suits based on other norms that
already exist or may ripen in the future into rules of customary international
law.”87 The Senate Report echoed that of the House.88 By enacting the TVPA,
Congress overtly endorsed emerging ATS jurisprudence while apparently leaving the subject matter of that jurisprudence to the courts.
Congress has thus acted twice to provide jurisdiction for violations of the law
of nations: first, in response to the absence of judicial remedy, and then, two
centuries later, to preserve that judicial remedy. These legislative measures
suggest that Congress’ willingness to act is limited to situations in which it has
been compelled to ensure remedies for serious violations of international law.
However Congress remains, as in 1789, unwilling to delineate the particular
violations of the law of nations falling within the scope of the ATS, perhaps out
of recognition that these international norms change and evolve as any other
80. See Filartiga, 630 F.2d at 881 (citing Ware v. Hylton, 3 U.S. (3 Dall.) 199, 229 (1796)
(distinguishing between “ancient” and “modern” law of nations)).
81. Id.
82. Torture Victim Protection Act of 1991, Pub. L. No. 102-256, 106 Stat. 73 (1992) (codified at 28
U.S.C. § 1350 note (1994)).
83. See Jones v. United Kingdom, 2014 Eur. Ct. H.R. at ¶ 114.
84. Tel-Oren v. Libyan Arab Republic, 726 F.2d 774 (D.C. Cir. 1984); see also S. REP. NO. 102-249,
at 5 (1991).
85. H.R. REP. NO. 102-367, at 4 (1991).
86. See STEPHENS ET AL., supra note 6, at 17; Philip Mariani, Assessing the Proper Relationship
Between the Alien Tort Statute and the Torture Victim Protection Act, 156 U. PA. L. REV. 1383, 1392–93
(2008).
87. H.R. REP. NO. 102-367, at 4.
88. S. REP. NO. 102-249, at 5 (1991) (“[C]laims based on torture or summary executions do not
exhaust the list of actions that may appropriately be covered by section 1350. Consequently, that statute
should remain intact.” (footnote omitted)).
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body of common law. A consequence of this congressional restraint is the lack
of guidance as to the particular norms that fall within the jurisdictional scope of
the ATS. Delineation of the law of nations has accordingly been the province of
courts.
III. CONSTRUCTION OF THE ATS
In 2004, the Supreme Court decided its first ATS case, Sosa v. AlvarezMachain, where it established a standard by which to identify causes of action
falling within the scope of the ATS.89 The case was brought by Humberto
Alvarez-Machain, a Mexican physician, who had been abducted by a group of
Mexican citizens, including Jose Francisco Sosa, in connection with the murder
of a U.S. Drug Enforcement Administration agent.90 The Court reversed a
judgment affirmed by the Ninth Circuit that had awarded damages to Alvarez
for arbitrary arrest and detention in violation of the law of nations.91 The Court
based its ruling on the norm in question, which it held to fall beyond a specific
category of actionable norms of a “definable, universal and obligatory” character.92 Just as in Filartiga, this holding indicates that the law of nations is not
equated with all contemporary international law, but rather, refers only to a
particular subset of international law that embodies comparable international
weight to Blackstone’s three offenses against the law of nations recognized in
1789.93 A cause of action under the ATS must, according to the Court, “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 paradigms we have
recognized.”94 The standard established by the Court essentially imposes the
object and purpose of the ATS as a guide to the international norms actionable under the Statute, a position reiterated in the Court’s only other treatment
of the ATS, Kiobel v. Royal Dutch Petroleum Co.95 However, the Court did little
to specify which particular international norms fall within the contemporary law
of nations, leaving the category to be borne out in application of the ATS by
lower courts as a matter of federal common law.96
Application of the ATS reveals that the judiciary has frequently relied on the
international law doctrine of jus cogens to interpret the law of nations in
89. Sosa v. Alvarez-Machain, 542 U.S. 692, 725 (2004).
90. Id. at 697–98.
91. See id. at 699.
92. Id. at 732 (citing In re Estate of Marcos, Human Rights Litig., 25 F.3d 1467, 1475 (9th Cir.
1994)).
93. Id. at 715 (citing 4 WILLIAM BLACKSTONE, COMMENTARIES *68); see supra text accompanying
notes 78–80.
94. Sosa, 542 U.S. at 725; see also id. at 760 (Breyer, J., concurring) (“[T]o qualify for recognition
under the ATS a norm of international law must have a content as definite as, and an acceptance as
widespread as, those that characterized 18th-century international norms prohibiting piracy.”).
95. See 133 S. Ct. 1659, 1666 (2013).
96. See id. at 1663 (noting that federal courts “may ‘recognize private claims [for violations of the
law of nations] under federal common law’” (quoting Sosa, 542 U.S. at 732)).
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contemporary jurisprudence. The Supreme Court made no reference to jus
cogens in Sosa or Kiobel, and the decision by the Ninth Circuit in Sosa
expressly rejected the argument that a claim under the ATS requires a jus cogens
violation.97 Even so, the standard endorsed by the Supreme Court has been
conceived, at least in practical effect, to limit the scope of the law of nations
under the ATS to jus cogens.98 More importantly, broader construction of the
ATS by lower courts reveals support for the proposition that jus cogens has
significantly guided judicial interpretation of the law of nations. Three discrete
points of connection between jus cogens and the ATS warrant attention. A
linkage between jus cogens and the law of nations may be inferred by the
revival of the ATS shortly after the codification of the category of jus cogens in
international law; it is also reflected both explicitly in judicial practice and
implicitly in the coextensive content of each category of law. This Part considers each of these points in turn.
A. THE DEVELOPMENT OF JUS COGENS AFTER WORLD WAR II
Following the Second World War, the International Law Commission (ILC)
was established under the auspices of the United Nations to promote the
development of international law.99 At its first session in 1949, the ILC adopted
the law of treaties as its first drafting priority,100 and in this context, the concept
of jus cogens formally entered into international law. In March 1968, the U.N.
General Assembly convened the Conference on the Law of Treaties in Vienna to
formally codify the Draft Articles developed by the ILC.101 The United States
was an early proponent of jus cogens, as “[t]here was nothing very radical in the
basic concept of the existence of certain rules from which no derogation by way
of treaty could be tolerated . . . . It was easy to say that jus cogens existed
because a treaty promoting slavery or piracy was clearly unenforceable in
existing international life . . . .”102 The concept of jus cogens reflected the most
significant international legal developments following the Second World War:
97. Alvarez-Machain v. United States, 266 F.3d 1045, 1050 (9th Cir. 2001), vacated en banc, 331
F.3d 604 (9th Cir. 2003), rev’d sub nom. Sosa v. Alvarez-Machain, 542 U.S. 692 (2004). Of course, this
decision was reversed because the cause of action at issue, which fell outside jus cogens, was found by
the Court to fall outside the law of nations. Sosa, 542 U.S. at 738.
98. See ALEXANDER ORAKHELASHVILI, PEREMPTORY NORMS IN INTERNATIONAL LAW 123 (2008); Ryan
Goodman & Derek P. Jinks, Filartiga’s Firm Footing: International Human Rights and Federal
Common Law, 66 FORDHAM L. REV. 463, 495 (1997); Saman Zia-Zarifi, Suing Multinational Corporations in the U.S. for Violating International Law, 4 UCLA J. INT’L L. & FOREIGN AFF. 81, 91 (1999).
99. G.A. Res. 174 (II), U.N. Doc. A/RES/174(II) (Nov. 21, 1947).
100. Report of the International Law Commission on the Work of Its First Session, 12 April 1949,
Official Records of the General Assembly, Fourth Session, Supplement No. 10, [1949] 1 Y.B. Int’l L.
Comm’n 281, U.N. Doc. A/CN.4/13 and Corr. 1–3.
101. G.A. Res. 2287 (XXII), U.N. Doc. A/RES/2287(XXII) (Dec. 6, 1967).
102. United Nations Conference on the Law of Treaties, Vienna, Austria, Apr. 9–May 22, 1969,
Summary Records of the Plenary Meetings and of the Meetings of the Committee of the Whole, ¶¶
20–21, U.N. Doc. A/CONF.39/SR.20 (May 12, 1969).
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the crystallization of individual legal personality in international law,103 the first
international criminal prosecutions at Nuremburg104 and Tokyo,105 and the
formal recognition by the International Court of Justice that obligations with
respect to fundamental norms of international law exist beyond the consent of
states.106 Article 53, which contained the concept of jus cogens, was adopted by
the Conference in 1969.107
Jurisprudence under the ATS emerged not long after incorporation of jus
cogens in the Vienna Convention on the Law of Treaties, which entered into
force in 1980,108 and primarily codified customary international law.109 Federal
courts have broadly recognized the concept of jus cogens, as aptly described by
the Ninth Circuit in Siderman de Blake v. Republic of Argentina:
The universal and fundamental rights of human beings identified by Nuremberg—rights against genocide, enslavement, and other inhumane acts—are
the direct ancestors of the universal and fundamental norms recognized as jus
cogens. In the words of the International Court of Justice, these norms, which
include “principles and rules concerning the basic rights of the human person,” are the concern of all states; “they are obligations erga omnes.”110
The fact that the ATS went virtually unused following its enactment in 1789
and then burgeoned immediately after the formal codification of the category of
jus cogens suggests a possible relationship between the law of nations and jus
cogens. To be sure, the aftermath of the Second World War saw a radical
transformation of international relations with the establishment of the United
Nations and development of human rights as a priority of the international
community.111 Although the revival of the ATS in the latter part of the twentieth
century may be viewed through this general “human rights movement,” ATS
jurisprudence establishes that the individual protections cognizable under the
103. See, e.g., U.N. Charter pmbl. (“We the peoples of the United Nations determined . . . to reaffirm
faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of
men and women and of nations large and small . . . .”).
104. Charter of the International Military Tribunal at Nuremberg, art. I, Aug. 8, 1945, 59 Stat. 1544,
82 U.N.T.S. 284.
105. Charter of the International Military Tribunal for the Far East, art. I, Jan. 19, 1946, T.I.A.S. No.
1596.
106. Reservations to Convention on Prevention and Punishment of Crime of Genocide, Advisory
Opinion, 1951 I.C.J. 15, 23 (May 28).
107. United Nations Conference on the Law of Treaties, supra note 102, ¶ 65.
108. Vienna Convention, supra note 2.
109. See, e.g., RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW pt. III, intro. note (1987) (noting that
the Vienna Convention “is already generally recognized as the authoritative guide to current treaty law
and practice”).
110. Siderman de Blake v. Republic of Argentina, 965 F.2d 699, 715 (9th Cir. 1992) (citations
omitted) (quoting Barcelona Traction, Light & Power Co. (New Application: 1962) (Belg. v. Spain),
1970 I.C.J. 3, ¶ 32 (Feb. 5)).
111. See generally THEODOR MERON, HUMAN RIGHTS LAW-MAKING IN THE UNITED NATIONS (1986); Jack
Donnelly, International Human Rights: A Regime Analysis, 40 INT’L ORG. 599 (1986).
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Statute encompass only human rights constituting customary international law.112
Moreover, duties arising from such human rights belonging to customary
international law have been understood by U.S. courts in relation to international criminal prosecutions since the International Military Tribunal at Nuremberg. This implies a linkage to international criminal law, the scope of which is
far narrower than human rights generally.113 This Note posits that the establishment of a category of jus cogens norms demarcated the contemporary law of
nations, which U.S. courts have ascertained with some confidence as norms of
contemporary international law comparable in stature to the eighteenth-century
law of nations.114
B. THE LAW OF NATIONS AND JUS COGENS IN DOMESTIC COURTS
Filartiga, the first successful ATS claim in contemporary jurisprudence, did
not directly refer to the category of jus cogens in international law.115 And, as
noted above, the Supreme Court remained silent on jus cogens in the first two
ATS cases to come before it, perhaps to avoid other complex legal implications
of jus cogens.116 Even so, lower courts have demonstrated a willingness to look
to jus cogens to give meaning to the law of nations. This reliance is demonstrated both explicitly—by express reference to the category of jus cogens—and
implicitly—by delineating a category of jus cogens coextensive with the law of
nations and actionable under ATS jurisprudence.
1. Explicit Reference to Jus Cogens
Since the 1990s, several federal courts of appeals have expressly relied upon
the doctrine of jus cogens to assess whether jurisdiction under the ATS is
appropriate. One of the earliest references to jus cogens in ATS jurisprudence is
the In re Estate of Marcos, Human Rights Litigation.117 The Marcos litigation
112. See, e.g., Sosa v. Alvarez-Machain, 542 U.S. 692, 738 (2004); Kiobel v. Royal Dutch Petroleum
Co., 621 F.3d 111, 148 (2d Cir. 2010), aff’d, 133 S. Ct. 1659 (2013).
113. See, e.g., Doe I v. Nestle USA, Inc., 766 F.3d 1013, 1020 (9th Cir. 2014); Doe VIII v. Exxon
Mobil Corp., 654 F.3d 11, 51–52 (D.C. Cir. 2011); Kiobel, 621 F.3d at 148.
114. See Sosa, 542 U.S. at 725 (noting that a cause of action under ATS must “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 paradigms we have recognized”).
115. Filartiga v. Pena-Irala, 630 F.2d 876, 885 (2d Cir. 1980).
116. The complicated interaction between jus cogens and jurisdictional immunity is one such
implication. Compare Yousuf v. Samantar, 699 F.3d 763, 776 (4th Cir. 2012) (“American courts have
generally followed the foregoing trend, concluding that jus cogens violations are not legitimate official
acts and therefore do not merit foreign official immunity but still recognizing that head-of-state
immunity, based on status, is of an absolute nature and applies even against jus cogens claims.”), with
Ye v. Zemin, 383 F.3d 620, 627 (7th Cir. 2004) (“The Executive Branch’s determination that a foreign
leader should be immune from suit even when the leader is accused of acts that violate jus cogens
norms is established by a suggestion of immunity.”), and Princz v. Fed. Republic of Germany, 26 F.3d
1166, 1174 (D.C. Cir. 1994) (“We have no warrant, therefore, for holding that the violation of jus
cogens norms . . . constitutes an implied waiver of sovereign immunity under the FSIA.”).
117. 25 F.3d 1467, 1471–72 (9th Cir. 1994); In re Estate of Marcos, Human Rights Litig., 978 F.2d
493 (9th Cir. 1992).
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was brought by families of victims of torture, execution, and disappearance
against the former President of the Philippines, Ferdinand Marcos,118 and his
daughter, Imee Marcos-Manotoc,119 who fled to Hawaii in 1986. Claimants, as
aliens—citizens of the Philippines living in Hawaii—relied upon the ATS to
engage the jurisdiction of the Federal District Court for the District of Hawaii.
In affirming a judgment in favor of the claimants in the 1992 litigation against
Marcos-Manotoc, the Ninth Circuit concluded that the “violation of a jus
cogens norm of international law, properly invokes the subject-matter jurisdiction of the federal courts under § 1350.”120 Similarly, in the 1994 litigation
against former President Marcos, the Ninth Circuit affirmed subject-matter
jurisdiction under the ATS by finding that “[t]he allegations in this case satisfy
the specific, universal and obligatory standard. ‘Under international law, . . . official torture violates jus cogens.’”121
The Ninth Circuit reiterated this position more than a decade later in Sarei v.
Rio Tinto, PLC, a claim brought by residents of Papua New Guinea against
mining company Rio Tinto for, inter alia, crimes against humanity and war
crimes—jus cogens violations—arising from a mine uprising and the ten-year
civil war that followed.122 The Ninth Circuit held in part that “[p]laintiffs here
have alleged several claims asserting jus cogens violations that form the least
controversial core of modern day [ATS] jurisdiction.”123 The Sixth Circuit
observed the converse in Taveras v. Taveraz, namely that where a jus cogens
norm is not in question, then ATS jurisdiction is likely not properly engaged.124
The Sixth Circuit explained that the case, which concerned a cross-border child
abduction by a parent with full custody, “does not present any jus cogens or
otherwise binding customary norm of international law which gives rise to a
violation of the law of nations under the ATS.”125 These parameters set out by
the Sixth and Ninth Circuits demonstrate that the violation of a jus cogens norm
is at least sufficient to engage federal subject-matter jurisdiction under the ATS
as a violation of the law of nations. These cases also demonstrate the utility of
reference to jus cogens to determine the law of nations, and as discussed in the
section to follow, there is little indication in current jurisprudence that circuit
courts are prepared to venture beyond the content of jus cogens for purposes of
interpreting the law of nations.126
Federal district courts have mirrored the reasoning of the circuits by relying
on jus cogens to interpret the law of nations under the ATS. In 1995, the District
118. In re Estate of Marcos, 25 F.3d at 1469.
119. In re Estate of Marcos, 978 F.2d at 495.
120. Id. at 503.
121. In re Estate of Marcos, 25 F.3d at 1475 (quoting Siderman de Blake v. Republic of Argentina,
965 F.2d 699, 717 (9th Cir. 1992)).
122. 487 F.3d 1193, 1197 (9th Cir. 2007).
123. Id. at 1202.
124. 477 F.3d 767, 782 (6th Cir. 2007).
125. Id.
126. See infra Part III.B.2.
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Court for the District of Massachusetts observed in Xuncax v. Gramajo that the
case at bar, which concerned torture and other cruel, inhuman, and degrading
treatment, “concerns the proper characterization of the kind of wrongs meant to
be addressed under § 1350: those perpetrated by hostis humani generis (‘enemies of all humankind’) in contravention of jus cogens (peremptory norms of
international law).”127 In Sandhu v. Burke, the Southern District of New York
interpreted Filartiga as linking ATS jurisdiction to jus cogens, holding that
“Filartiga recognized that the ATS granted federal courts jurisdiction to hear
tort claims alleging violations of jus cogens norms of international law.”128 The
Northern District of California echoed this connection in Doe v. Qi, finding that
“[c]onduct which violates jus cogens—norms of international law that are so
fundamental and universally recognized that they are binding on nations even if
they do not agree to them—constitutes a violation of the ‘law of nations.’”129 In
2009, the Southern District of Texas concluded that “human trafficking and
forced labor, whether committed by states or private individuals, have been
recognized as violations of jus cogens norms, and therefore fall within the
jurisdictional grant of the ATS.”130 The Northern District of Georgia has
suggested that the jus cogens status of a norm of international law is sufficient,
but not necessary, to engage the jurisdiction of the ATS, saying “[t]o be
actionable under the [ATS], these norms must be specific, universal and obligatory. A jus cogens violation satisfies, but is not required, to meet this standard.”131 Thus, although district courts appear comfortable consulting jus cogens
to determine the law of nations for the purposes of ATS jurisdiction, they have
also stopped short of expressly limiting jurisdiction under the ATS to violations
of that category of norms. Even so, ATS jurisdiction has not been extended to
international norms beyond the category of jus cogens.
2. Implicit Reliance on Jus Cogens
In many instances, federal courts do not expressly reference the doctrine of
jus cogens to interpret the law of nations for purposes of jurisdiction under the
ATS. Even so, broader judicial practice reinforces this connection for purposes
of statutory construction insofar as the causes of action recognized by federal
courts are coextensive with the doctrine of jus cogens. In contemporary international law, nine peremptory norms have been accepted and recognized by the
international community as belonging to jus cogens: the prohibitions against
piracy,132 slavery,133 war crimes (grave violations of humanitarian law),134
127. 886 F. Supp. 162, 183 (D. Mass. 1995).
128. No. 97 Civ. 4608(JGK), 2000 WL 191707, at *10 n.11 (S.D.N.Y. Feb. 10, 2000).
129. 349 F. Supp. 2d 1258, 1277 (N.D. Cal. 2004) (internal quotation marks omitted).
130. Adhikari v. Daoud & Partners, 697 F. Supp. 2d 674, 686 (S.D. Tex. 2009).
131. Mehinovic v. Vuckovic, 198 F. Supp. 2d 1322, 1344 (N.D. Ga. 2002) (citations omitted)
(internal quotation marks omitted).
132. See, e.g., R v Tang [2008] HCA 39, ¶ 111 (Austl.) (Kirby, J.).
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crimes against humanity,135 aggression,136 genocide,137 torture,138 apartheid
(racial discrimination),139 and terrorism.140 Similarly, federal courts have identified the contemporary law of nations to provide causes of action for piracy,141
slavery,142 war crimes,143 crimes against humanity,144 genocide,145 torture,146
apartheid,147 and terrorism,148 eight of the nine jus cogens norms. In many of
133. See, e.g., Barcelona Traction, Light & Power Co. (New Application: 1962) (Belg. v. Spain),
1970 I.C.J. 3, ¶ 34 (Feb. 5); Armed Activities on Territory of Congo (New Application: 2002) (Dem.
Rep. Congo v. Rwanda), 2006 I.C.J 6, ¶ 10 (Feb. 3) (separate opinion of Judge Dugard).
134. See, e.g., Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1986
I.C.J. 14, ¶ 220 (June 27); Legality of Threat or Use of Nuclear Weapons, Advisory Opinion, 1996
I.C.J. 226, ¶¶ 10, 21, 83 (July 8).
135. See, e.g., Armed Activities on Territory of Congo, 2006 I.C.J. ¶ 11 (separate opinion of Judge
Dugard); Cass., sez. un., 11 marzo 2004, n. 5044, Foro it. 2004, ¶¶ 9–9.1 (It.).
136. See, e.g., Accordance with International Law of Unilateral Declaration of Independence in
Respect of Kosovo, 2010 I.C.J. 403, ¶ 81 (July 22); Barcelona Traction, Light & Power Co., 1970 I.C.J.
¶ 34.
137. See, e.g., Application of Convention on Prevention and Punishment of Crime of Genocide
(Bosn. & Herz. v. Serb. & Montenegro), 2007 I.C.J. 47, ¶¶ 147, 162 (Feb. 26).
138. See, e.g., Questions Relating to Obligation to Prosecute or Extradite (Belg. v. Sen.), 2012 I.C.J.
422, ¶ 99 (July 20).
139. See, e.g., Armed Activities on Territory of Congo, 2006 I.C.J. ¶ 78; Juridical Condition and
Rights of the Undocumented Migrants, Advisory Opinion OC-18/03, Inter-Am. Ct. H.R. (ser. A) No.
18, ¶¶ 97–101, 110–11 (Sept. 17, 2003).
140. See, e.g., Cour de cassation [Cass.] [supreme court for judicial matters] 2e civ, Mar. 9, 2011,
Bull. Civ. II, No. 09-14743 (Fr.), 150 I.L.R. 630, 631, 634 (2012) (Paris Assizes Court delivered both
criminal and civil judgments against six Libyan nationals for jus cogens violation of terrorism in March
1999); Prosecutor v. Galic´, Case No. IT-98-29-T, Judgment, ¶ 98 (Int’l Crim. Trib. for the Former
Yugoslavia Dec. 5, 2003).
141. See, e.g., Inst. of Cetacean Research v. Sea Shepherd Conservation Soc’y, 725 F.3d 940,
943–44 (9th Cir. 2013) (reversing dismissal of ATS suit finding “piracy under the law of nations”);
United States v. Dire, 680 F.3d 446, 454 (4th Cir. 2012) (noting that lower court “focused on piracy’s
unusual status as a crime defined by the law of nations”).
142. See, e.g., Doe I v. Unocal Corp., 395 F.3d 932, 945 (9th Cir. 2002) (noting that “slavery [is a]
jus cogens violation[] and, thus, [a] violation[] of the law of nations”); Sampson v. Fed. Republic of
Germany, 250 F.3d 1145, 1154 n.5 (7th Cir. 2001) (“The fact [is] that some jus cogens norms are
beyond question, such as the norm against slavery . . . .”).
143. See, e.g., Sarei v. Rio Tinto, PLC, 487 F.3d 1193, 1202 (9th Cir. 2007) (noting that war crimes
“form the least controversial core of modern day [ATS] jurisdiction”); Kadic v. Karadzic, 70 F.3d 232,
243 (2d Cir. 1995) (affirming “jurisdiction pursuant to the [ATS] over appellants’ claims of war crimes
and other violations of international humanitarian law”).
144. See, e.g., Sarei, 487 F.3d at 1202 (noting that crimes against humanity also is one of “the least
controversial core of modern day [ATS] jurisdiction”).
145. See, e.g., Abelesz v. Magyar Nemzeti Bank, 692 F.3d 661, 676 (7th Cir. 2012) (“The universal
and fundamental rights of human beings identified by Nuremberg—rights against genocide, enslavement, and other inhumane acts—are the direct ancestors of the universal and fundamental norms
recognized as jus cogens.” (quoting Siderman de Blake v. Republic of Argentina, 965 F.2d 699, 715
(9th Cir. 1992))).
146. See, e.g., Doe I, 395 F.3d at 945 (noting that “torture . . . [is a] jus cogens violation[] and, thus,
[a] violation[] of the law of nations”); In re Estate of Marcos, Human Rights Litig., 25 F.3d 1467, 1475
(9th Cir. 1994) (noting that “torture violates jus cogens”).
147. See, e.g., Sarei v. Rio Tinto, PLC, 671 F.3d 736, 770 (9th Cir. 2011) (“We assume . . . that a
claim akin to apartheid would be cognizable under the ATS . . . .” (emphasis added)); In re S. African
Apartheid Litig., 617 F. Supp. 2d 228, 240–41 (S.D.N.Y. 2009) (discussing “the law of nations [and] the
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these cases, courts have recognized the jus cogens status of the relevant norm
under international law. The exclusion of aggression from this list follows
logically from the special regime of prosecution of aggression under international law arising from its immediate relation to state conduct and resultant
denial of jurisdiction to third-states.149 Importantly, courts have denied jurisdiction under the ATS for causes of action not belonging to the international law
category of jus cogens, such as illegal detention,150 environmental abuse,151
cultural genocide,152 and child abduction.153 This jurisprudence suggests that,
although a jus cogens violation is sufficient to constitute a violation of the law
of nations under the ATS,154 in practice, a jus cogens violation is also necessary
to state a claim under the ATS.155 Jurisprudence further indicates that, although
the “definable, universal, and obligatory standard” may indeed remain the
prevalent test for subject-matter jurisdiction under the ATS, it might be effectively subsumed by a jus cogens standard.156
Judicial construction of the ATS provides evidence of the way in which
courts have interpreted violations of the law of nations under the ATS in the
absence of clear legislative or judicial guidance. The three elements discussed
in this Part support the proposition that, in contemporary jurisprudence, jus
cogens is the law of nations. The ATS remained virtually dormant after its
adoption by the First Congress in 1789; however, shortly after the codification
of jus cogens in the 1969 Vienna Convention on the Law of Treaties, federal
claims under the ATS burgeoned. In many instances, courts have looked to the
jus cogens status of a norm to determine jurisdiction under the ATS for offenses
against the law of nations. What is more, the content of the law of nations under
ATS jurisprudence has evolved coextensively with the content of jus cogens in
international law. Taken together, this evidence indicates not merely that jus
role of American courts in enforcing universal norms of international law, and the legacy of South
African apartheid”).
148. See, e.g., Mwani v. Laden, 947 F. Supp. 2d 1, 5 (D.D.C. 2013); Flatow v. Islamic Republic of
Iran, 999 F. Supp. 1, 23 (D.D.C. 1998) (noting that “terrorism has achieved the status of almost
universal condemnation, as have slavery, genocide, and piracy”).
149. See Draft Code of Crimes Against the Peace and Security of Mankind, [1996] 2 Y.B. Int’l L.
Comm’n 30, ¶ 14, U.N. Doc. A/CN.4/SER.A/1996/Add.l.
150. Sosa v. Alvarez-Machain, 542 U.S. 692, 738 (2004).
151. Beanal v. Freeport-McMoran, Inc., 197 F.3d 161, 167 (5th Cir. 1999).
152. Id. at 168.
153. Taveras v. Taveraz, 477 F.3d 767, 782 (6th Cir. 2007).
154. See Kurtis A. Kemper, Annotation, Construction and Application of Alien Tort Statute (28
U.S.C.A. § 1350)—Tort in Violation of Law of Nations or Treaty of United States, 64 A.L.R. FED. 2d
417 (2012).
155. Contra Stephen Fohn, Do DEA Field Agents Have the Power to Unilaterally Execute A
Trans-Border Abduction?: The Ninth Circuit’s Take on Alvarez-Machain v. United States, 27 HOUS.
J. INT’L L. 221, 239 n.79 (2004) (“There appears to be no disagreement among the circuit courts that jus
cogens norms and the ‘laws of nations’ are distinct concepts.”).
156. Cf. MICHAEL KOEBELE, CORPORATE RESPONSIBILITY UNDER THE ALIEN TORT STATUTE 23, 50 (2009)
(describing jus cogens as a possible standard to determine actionable norms under the ATS alongside
the “definable, universal, and obligatory standard”).
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cogens is coextensive with the law of nations, but further, that jus cogens is the
law of nations.
IV. IMPLICATIONS OF JUS COGENS AS THE LAW OF NATIONS
There are principally three issues that arise from an understanding of the law
of nations as jus cogens. First, this judicial practice requires courts to rely upon
an external source of law—international law—to determine the scope of subjectmatter jurisdiction granted to federal courts by a provision of U.S. law. Second,
reference to the law of nations as federal common law raises potential separation of powers concerns in light of the Article I authority of Congress to define
and punish violations of the law of nations. Finally, some academics maintain
that the doctrine of jus cogens is an unsatisfactory analog to the law of nations
because it is overly restrictive and based in common law. This Part addresses
each of these issues by considering the historical, constitutional, and doctrinal
implications of the recognition of jus cogens as the law of nations in U.S. law.
A. HISTORICAL ASPECTS OF THE LAW OF NATIONS AS AN EXTERNAL SOURCE OF LAW
U.S. jurisprudence since the time of the founding has contemplated the law of
nations as an external source of U.S. law. Chief Justice Jay, in a charge to a
grand jury, indicated that the laws of the United States could be “classed under
three heads of descriptions”: treaties concluded by the United States, the law of
nations, and the Constitution and statutes of the United States.157 In a debt
dispute before the Supreme Court three years later, between an American citizen
and a British subject, Justice Wilson observed that “[w]hen the United States
declared their independence, they were bound to receive the law of nations, in
its modern state of purity and refinement.”158 Justice Marshall consulted the law
of nations in an 1814 dispute over cargo shipped immediately before the
outbreak of war between Britain and the United States, describing “[t]he law of
nations [as] a law founded on the great and immutable principles of equity and
natural justice.”159 The next year, in The Nereide, Justice Marshall concluded
that “the Court is bound by the law of nations which is a part of the law of the
land” unless, and until, Congress passes an act.160 The law of nations, regularly
arising in admiralty cases, was later employed to determine whether slavery and
the slave trade “[were] prohibited by the law of nations.”161 Justice Story
consulted “the general principles of right and justice, applied to the concerns of
individuals, and thence to the relations and duties of nations,” to find that the
slave trade, like piracy, was “interdicted by public law” as it “is repugnant to the
157.
158.
159.
160.
161.
Henfield’s Case, 11 F. Cas. 1099 (C.C.D. Pa. 1793) (No. 6,360).
Ware v. Hylton, 3 U.S. 199, 281 (1796).
The Venus, 12 U.S. (8 Cranch) 253, 297 (1814).
13 U.S. (9 Cranch) 388, 412, 423 (1815).
United States v. The La Jeune Eugenie, 26 F. Cas. 832 (C.C.D. Mass. 1822) (No. 15,551).
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general principles of justice and humanity.”162 Trade in slaves was “contrary to
the general law of nations” and “an offence against the universal law of
society.”163
Although the ATS itself went virtually unused during the founding era,
jurisprudence of the late-eighteenth and early-nineteenth centuries demonstrates
that the nation’s leading jurists readily consulted the law of nations and considered it to be an external source of U.S. law. This practice has continued into the
modern era. The contemporary expression of the authority of customary international law as binding law in the United States is the seminal Paquete Habana
case of 1900, where the Court concluded that “[i]nternational law is part of our
law, and must be ascertained and administered by the courts of justice of
appropriate jurisdiction as often as questions of right depending upon it are duly
presented for their determination.”164 The conclusion, therefore, “that jus cogens norms of international law are part of the laws of the United States,”
follows a long history of recognizing the law of nations as part of domestic
law.165 Reference to international law to identify analogues to the eighteenthcentury paradigms recognized by the framers of the ATS is, in principle,
consistent with the broader recognition of international law in domestic courts.
Particular reference to jus cogens to give meaning to the law of nations also
appears to be consistent with the object and purpose of the ATS itself. The
historical context of the ATS suggests that the rationale underlying its adoption
was to ensure that fundamental norms recognized by the international community as a whole would be safeguarded in the United States, and that federal
courts would adjudicate violations of these norms even amongst aliens.166 The
original paradigm of the law of nations at the adoption of the ATS was limited
to particularly serious violations of international law recognized at common
law, likely constituting violations of safe conducts, infringement of the rights of
ambassadors, and piracy.167 Analogously, the norms recognized as belonging to
jus cogens are similarly limited to the most serious violations of contemporary
international law recognized and accepted by the international community as a
whole.168 Reference to this category of international law to give meaning to the
law of nations is consistent with the object and purpose of the jurisdiction
granted to federal courts under the ATS to permit aliens to seek redress for
162. Id. at 846.
163. Id. at 846–47. In 1825, Justice Marshall overruled this decision in The Antelope by determining
that the slave trade “is contrary to the law of nature, but is not prohibited by the positive law of
nations.” The Antelope, 23 U.S. (10 Wheat) 66, 66 (1825).
164. The Paquete Habana, 175 U.S. 677, 700 (1900); see also Texas Indus. v. Radcliff Materials,
Inc., 451 U.S. 630, 641 (1981) (holding “international disputes implicating . . . our relations with
foreign nations” is one of the “narrow areas” in which federal common law continues to exist).
165. Hawkins v. Comparet-Cassani, 33 F. Supp. 2d 1244, 1255 (C.D. Cal. 1999), rev’d in part, 251
F.3d 1230 (9th Cir. 2001).
166. See supra Part II.B.
167. See Sosa v. Alvarez-Machain, 542 U.S. 692, 715 (2004).
168. See text accompanying notes 132–40.
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violations of the most sacrosanct international norms as an external legal
authority.169
B. CONSTITUTIONAL CONSIDERATIONS OF JUDICIAL PRACTICE
Notwithstanding clear judicial precedent, reference to the international law
doctrine of jus cogens to give meaning to the law of nations under the ATS
raises potential separation of powers issues. Article I of the Constitution grants
Congress the authority to “define and punish . . . Offences against the Law of
Nations.”170 Therefore, the authority to define offenses against the law of
nations lies ostensibly within the realm of enumerated congressional authority.
As if to pay deference to this grant of legislative power, the Court acknowledged in Sosa that the federal judiciary has “no congressional mandate to seek
out and define new and debatable violations of the law of nations.”171 Consistent with the Define and Punish Clause, then, Congress retains the power to
“shut the door to the law of nations” via “treaties or statutes that occupy the
field,”172 suggesting control not merely of the jurisdiction of federal courts, but
also over the subject matter cognized by the ATS.173 Ultimately, therefore,
Congress has the effective authority to “modify or cancel any judicial decision
so far as it rests on recognizing an international norm as such.”174
The Court’s language does not indicate a separation of powers concern. The
Court has long recognized the power of Congress to affect obligations arising
under the law of nations, and otherwise binding upon the United States, by
legislative action.175 But Congress’s power to modify the “common law of
nations” by statute or treaty for purposes of U.S. law does not also stand for the
proposition that judicial construction of the law of nations contravenes an
enumerated power of Congress. In Sosa, the Court observed that “the door is
still ajar subject to vigilant doorkeeping, and thus open to a narrow class of
international norms today.”176 Presumably, had the Court perceived the matter
as one running afoul of its delegated constitutional authority, it would not
advance “vigilant doorkeeping” as the remedy to such infringement of the
separation of powers. Moreover, in Kiobel, the Court articulated a presumption
against extraterritorial application of the ATS, suggesting that “[i]f Congress
169. Cf. Louis Henkin, The Invasion of Panama Under International Law: A Gross Violation, 29
COLUM. J. TRANSNAT’L L. 293, 311 (1991) (attributing to Former State Department Legal Adviser
Abraham Sofaer the position that the United States, as any other state, is entitled to make its own
determination of the content of customary international law).
170. U.S. CONST. art. I, § 8, cl. 10.
171. Sosa, 542 U.S. at 728.
172. Id. at 731.
173. The ATS itself is an exercise of the Article III power of Congress to grant federal courts
jurisdiction over suits “arising under the Constitution, laws, or treaties of the United States.” See
STEPHENS ET AL., supra note 6, at 41.
174. Sosa, 542 U.S. at 731.
175. See, e.g., The Nereide, 13 U.S. (9 Cranch) 388, 423 (1815).
176. Sosa, 542 U.S. at 729.
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were to determine otherwise, a statute more specific than the ATS would be
required.”177 In its antipathy, the Court would likely not have hesitated to recuse
the judiciary from further recognizing violations of the law of nations under the
ATS if it perceived an imposition upon the Article I power of Congress.
This appears to be the correct conclusion given that Article I and the ATS
refer to the law of nations in different ways, a distinction that ultimately
resolves any separation of powers issue. The Define and Punish Clause delineates the power of Congress to criminalize offenses against the law of nations, a
syntax that reflects Blackstone’s construction of “specific offenses against the
law of nations addressed by the criminal law of England.”178 This suggests not
that domestic criminal law defines what the law of nations is for purposes of
international law, but instead that Congress has the express authority to recognize violations of international law as domestic criminal offenses. Thus, as
Justice Story wrote in 1820, congressional enumeration under the Define and
Punish Clause deviating from the law of nations would be “without inconvenience to the law of nations.”179 His understanding of the clause remains in
force today.180 As such, the law of nations as international law remains a
distinct body of law at once independent of domestic legislation, and to which
domestic legislation may give particular effect181—like the ATS does by extending federal jurisdiction over the claims of aliens.182
Thus, as the Court observed in Sosa, the ATS was not stillborn upon its
enactment due to the failure of Congress to define the law of nations by statute:
Rather, the reasonable inference from history and practice is that the ATS was
intended to have practical effect the moment it became law, on the understanding that the common law would provide a cause of action for the modest
number of international law violations thought to carry personal liability at
the time . . . .183
This interpretation reflects the position of founding-era jurists discussed
above that the law of nations was an externally derived part of the law of the
United States.184 Through this reasoning, contemporary reference by the federal
judiciary to jus cogens to interpret offenses against the law of nations for
177. Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659, 1669 (2013).
178. Sosa, 542 U.S. at 715.
179. United States v. Smith, 18 U.S. (5 Wheat) 153, 158 (1820).
180. See Al Bahlul v. United States, 767 F.3d 1, 57 (D.C. Cir. 2014) (“Thus, both the history and the
placement of the clause demonstrate the power to define and punish was intended to give Congress
flexibility in protecting national security, not to constrain the country’s ability to act by reference to
international norms.”).
181. Id.
182. See Filartiga v. Pena-Irala, 630 F.2d 876, 887 (2d Cir. 1980) (considering that the ATS was not
an exercise of the Define and Punish Clause, but merely a grant of federal jurisdiction.).
183. Sosa, 542 U.S. at 694.
184. See supra Part IV.A.
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purposes of jurisdiction under the ATS is consistent with the premise of the
Statute and does not infringe upon the Article I power of Congress to define and
punish offenses against the law of nations.185 Judicial deference to congressional authority in this area is not indicative of a separation of powers issue;
instead, it signals an invitation to Congress to modify or cancel the ATS if it is
unsatisfied with the way in which the law of nations—interpreted through the
doctrine of jus cogens—has shaped the subject matter over which federal courts
are granted jurisdiction under the ATS.
C. CRITIQUE OF JUS COGENS AS THE LAW OF NATIONS
Although it is uncontroversial that jus cogens norms fall within the substantive scope of the ATS,186 scholars have not embraced a methodology that
applies jus cogens to give meaning to the law of nations.187 The critique of such
an approach is ultimately unavailing. It has been suggested that the linkage
between jus cogens and the law of nations is merely a sign of confusion on the
part of the federal judiciary.188 The evidence marshaled in Part III of this Note
indicates instead that reliance upon jus cogens to give meaning to the ATS is not
only deliberate, but also consistent with the broader object and purpose of the
ATS. Even so, the law of nations as jus cogens has been criticized as a
“judicially imposed” limitation,189 or worse, “a judicial modification” of the
ATS.190 However, given the paucity of statutory guidance, any judicial construction of the law of nations for purposes of the ATS—made necessary by
congressional silence—would similarly constitute a judicially imposed limita-
185. See Michael T. Morley, Note, The Law of Nations and the Offenses Clause of the Constitution:
A Defense of Federalism, 112 Yale L.J. 109, 142 (2002) (arguing that “jus cogens is the best
compromise approach to both the ATCA and the Offenses Clause” as one that satisfies federalism
considerations through its limited substantive scope).
186. See, e.g., PETER HENNER, HUMAN RIGHTS AND THE ALIEN TORT STATUTE: LAW, HISTORY AND
ANALYSIS 126–28 (2009) (observing jus cogens constitutes a minimum of the scope of subject-matter
jurisdiction of the ATS); KOEBELE, supra note 156, at 23 (noting jus cogens constitutes a possible
standard to determine actionable norms under the ATS).
187. See Gordon A. Christenson, Customary International Human Rights Law in Domestic Court
Decisions, 25 GA. J. INT’L & COMP. L. 225, 230–31 (1995); William S. Dodge, Which Torts in Violation
of the Law of Nations?, 24 HASTINGS INT’L & COMP. L. REV. 351, 358 (2001); Goodman & Jinks, supra
note 98; Richard L. Herz, Litigating Environmental Abuses Under the Alien Tort Claims Act: A
Practical Assessment, 40 VA. J. INT’L L. 545, 554 (2000); Joshua Ratner, Back to the Future: Why a
Return to the Approach of the Filartiga Court Is Essential to Preserve the Legitimacy and Potential of
the Alien Tort Claims Act, 35 COLUM. J.L. & SOC. PROBS. 83, 106–09 (2002); Pamela J. Stephens, A
Categorical Approach to Human Rights Claims: Jus Cogens as a Limitation on Enforcement?, 22 WIS.
INT’L L.J. 245 (2004); Russell Unger, Brandishing the Precautionary Principle Through the Alien Tort
Claims Act, 9 N.Y.U. ENVTL. L.J. 638, 675–76 (2001); Mark W. Wilson, Comment, Why Private
Remedies for Environmental Torts Under the Alien Tort Statute Should Not Be Constrained by the
Judicially Created Doctrines of Jus Cogens and Exhaustion, 39 ENVTL. L. 451, 454 (2009).
188. Ratner, supra note 187, at 103.
189. Dodge, supra note 187, at 358.
190. Wilson, supra note 187, at 465.
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tion.191 Statutory construction is entirely appropriate as a general proposition,
and is especially so where application of a statute more than two centuries old is
at issue. That the category of jus cogens was not recognized as such at the
enactment of the ATS in 1789 does not discount reference to that modern
doctrine by analogy to the eighteenth-century law of nations.192
Opponents of a law of nations jurisprudence that relies upon jus cogens also
draw attention to two purported shortcomings: the lack of precision in the
content of jus cogens in international law, and the limiting effect of such a
linkage to the scope of claims that might be brought under the ATS.193 The first
point, a well-rehearsed criticism of the doctrine of jus cogens, reflects the basis
of jus cogens in customary international law rather than treaty.194 Although a
parallel critique might be leveled with equal force against the common law as
compared to statutory law, courts are well-positioned to determine the common
law. In analogous fashion, the international law of jus cogens has evolved
through the judgments of domestic and international courts as a form of
international common law,195 and courts frequently look to the assessments of
customary international law carried out by other judicial organs to determine
whether a peremptory norm has crystallized in international law.196 Indeed, that
the critique of imprecision is accompanied by concern over the limiting effect
of the doctrine weakens the criticism by its tacit acknowledgment that jus
cogens actually constitutes a quite narrow and identifiable category of norms
accepted and recognized under international law that would, if anything, limit
the substantive scope of the ATS.197
The second related head of criticism maintains that the category of jus cogens
is arguably narrower than the specific category of actionable norms of a
191. One author in fact adopts that critique; however, it is unclear how any construction originating
from the courts could evade this criticism. See Dodge, supra note 187, at 357–58 (“It is as hard to
justify limiting jurisdiction under the Alien Tort Statute to jus cogens norms as it is to justify limiting
the Statute to rules that are ‘universal, definable, and obligatory.’”).
192. Compare Stephens, supra note 187, at 262 (“[T]he concept of jus cogens was not wellestablished at the time of the First Judiciary Act and the drafting of the [ATS].”), with Filartiga v.
Pena-Irala, 630 F.2d 876, 881 (2d Cir. 1980) (“[C]ourts must interpret international law not as it was in
1789, but as it has evolved and exists among the nations of the world today.”).
193. See Stephens, supra note 187, at 271–72.
194. See, e.g., Sampson v. Fed. Republic of Germany, 250 F.3d 1145, 1150 (7th Cir. 2001);
Siderman de Blake v. Republic of Argentina, 965 F.2d 699, 714–17 (9th Cir. 1992).
195. See supra text accompanying notes 141–48.
196. In this respect, proponents of a customary-international-law approach to defining the law of
nations argue that a linkage to jus cogens would constitute a form of “judicial law making”; however,
either process requires analysis of the same customary international law sources. Compare Ratner,
supra note 187, at 109–10 (arguing that identifying jus cogens, but not customary international law,
involves judicial law making), with Sampson, 250 F.3d at 1150, and Siderman de Blake, 965 F.2d at
714–17 (noting that identification of jus cogens requires reference to the same sources of customary
international law).
197. It is also strange that the imprecision critique has been leveled in support of a law of nations
jurisprudence including the whole of customary international law in opposition to limitation to jus
cogens only, as both arise from customary international law. See Ratner, supra note 187, at 106–09.
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“definable, universal, and obligatory” character identified by the Court in
Sosa.198 If this were the case, reliance on the category would result in a more
narrow application of the ATS than conceivably envisioned by Congress in
1789.199 In this vein, it is argued that jus cogens needlessly introduces a
consideration of hierarchy into causes of action under international law that fall
within the scope of the ATS200 by including some causes of action to the
exclusion of others. Such a restrictive function is, however, consistent with the
object and purpose of the ATS to provide jurisdiction not over any violation of
international law, but only over violations of international norms universally
recognized by all nations.201 Moreover, in light of the Court’s limited construction of the Statute’s substantive scope in Sosa,202 restraining the content of the
law of nations to the narrow category of jus cogens protects against unwarranted application.203 And given the narrow interpretation of the extraterritorial
application of the ATS in Kiobel,204 a limited reading of the Statute’s substantive scope is consistent with the Court’s restrictive treatment of the ATS more
generally.
Finally, a jus cogens approach to the law of nations is argued to have the
consequence of limiting corporate liability under the ATS.205 Corporate liability
under the ATS was the central issue of the Kiobel litigation, in which the Second
Circuit resolved the question of corporate liability for violations of the law of
nations in the negative.206 The Second Circuit was correct in its conclusion in
relation to international criminal responsibility, which arises against individuals
for violations of jus cogens norms,207 but for which there is no precedent for
prosecuting corporations,208 or states for that matter.209 Although denial of
corporate liability under the ATS is consistent with the regime of jus cogens, it
need not be conceived as a shortcoming or direct consequence of a jus cogens
approach to the law of nations. This is because international law does not
198. Sosa v. Alvarez-Machain, 542 U.S. 692, 732 (2004).
199. Cf. Stephens, supra note 187, at 271–72.
200. Ratner, supra note 187, at 110–13; Wilson, supra note 187, at 454.
201. Sosa, 542 U.S. at 725.
202. See, e.g., id. at 738 (finding illegal detention does not violate the law of nations).
203. Goodman & Jinks, supra note 98, at 497.
204. Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659, 1669 (2013).
205. See KOEBELE, supra note 156, at 23 n.34 (noting that a jus cogens standard to identifying
actionable norms under the ATS “would definitely restrict [ATS litigation against transnational corporations] substantially”).
206. Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111, 145 (2d Cir. 2010), aff’d, 133 S. Ct. 1659
(2013) (“[I]mposing liability on corporations for violations of customary international law has not
attained a discernible, much less universal, acceptance among nations of the world in their relations
inter se.”).
207. See supra text accompanying notes 34–37.
208. Kiobel, 621 F.3d at 143–44.
209. See James Crawford, International Crimes of States, in THE LAW OF INTERNATIONAL RESPONSIBILITY 405, 405–14 (James Crawford et al. eds., 2009) (discussing how international law does not admit
crimes of states).
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recognize corporate liability for violations of customary international law.210
The purported shortcomings leveled by critics of a jus cogens approach to the
law of nations are unavailing. Federal courts should therefore refer to jus cogens
when determining the contemporary law of nations, and they should do so
unambiguously. In addition to fidelity to the object and purpose of the ATS, a
practical effect of reliance on jus cogens is to promote a jurisprudence that is
predicable and uniform. In this respect, the “definable, universal, and obligatory” standard is of little help to litigants or judges. Of course, this standard has
been conceived to be an oblique reference to jus cogens,211 one having the
practical effect of limiting jurisdiction under the ATS to the jus cogens subset of
customary international law.212
Anticipating that federal courts will only recognize violations of jus cogens
as causes of action under the ATS provides claimants with certainty as to
whether they have properly invoked federal subject-matter jurisdiction under
the ATS. Although hundreds of claims have been filed under the ATS since
Filartiga, a great many have been dismissed for failure to state a cause of action
under the Statute. Clear reliance on jus cogens thereby lends itself to fewer ATS
claims dismissed at the trial level or reversed by appellate courts due to
litigation brought by aliens for breaches of international law not constituting jus
cogens.213 Persistent and explicit reference to jus cogens to interpret the law of
nations comports with current ATS jurisprudence and supports judicial economy.
Moreover, uniform reliance by federal courts on jus cogens prevents forum
shopping where different circuits develop disparate interpretations of the law of
nations by declining to rely upon an identifiable corpus of law. Finally, the
International Court of Justice has dispelled any concern that a jus cogens
approach to the law of nations would implicitly waive the jurisdictional immunity of the state in domestic courts.214 Courts thus realize a host of practical
advantages by coupling the law of nations to jus cogens that outweigh the
supposed disadvantages of such an approach.
210. See, e.g., Kiobel, 621 F.3d at 143; KOEBELE, supra note 156, at 196.
211. See ORAKHELASHVILI, supra note 98, at 123; cf. KOEBELE, supra note 156, at 50.
212. Goodman & Jinks, supra note 98, at 496.
213. See, e.g., Sosa v. Alvarez-Machain, 542 U.S. 692, 738 (2004) (arbitrary detention not prohibited by law of nations); Taveras v. Taveraz, 477 F.3d 767, 782 (6th Cir. 2007) (child abduction not
prohibited as jus cogens); Beanal v. Freeport-McMoran, Inc., 197 F.3d 161, 167 (5th Cir. 1999)
(environmental degradation and cultural genocide not prohibited by law of nations).
214. See Jurisdictional Immunities of State (Ger. v. It.: Greece Intervening), 2012 I.C.J. 99, ¶¶ 92–97
(Feb. 3) (affirming the immunity of the state from civil liability for jus cogens violations); Michele
Potesta`, State Immunity and Jus Cogens Violations: The Alien Tort Statute Against the Backdrop of the
Latest Developments in the ‘Law of Nations,’ 28 BERKELEY J. INT’L L. 571, 586 (2010) (acknowledging
that the relation of jus cogens to the ATS is unlikely to impact the affirmative defense of sovereign
immunity statutorily enshrined by the Foreign Sovereign Immunities Act); see also Hernandez v.
United States, No. 11-50792, 2015 WL 1881566 (5th Cir. Apr. 24, 2015) (dismissing claim of Mexican
nationals against U.S. Border Patrol agent for extra-judicial killing incorporating theory of jus cogens
waiver of immunity of the United States under the ATS).
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CONCLUSION
The Alien Tort Statute was enacted in 1789 to provide aliens with a judicial
remedy in the United States for torts committed in violation of the law of
nations.215 The statutory interpretation tools of textualism and contextualism
support a legislative intent to enable federal courts to hear claims by aliens for
the most serious violations of international law. However, the Statute went
virtually unused for 170 years, in the absence of guidance by Congress or the
Supreme Court delineating the content of the law of nations. Since the emergence of the doctrine of jus cogens in international law, jurisprudence under the
ATS has burgeoned, and federal courts have looked to the doctrine of jus cogens
to give meaning to the law of nations pursuant to the jurisdictional grant of the
ATS. Jus cogens, just as the law of nations, constitutes “a sphere in
which . . . rules binding individuals for the benefit of other individuals overlap[]
with the norms of state relationships.”216
Reliance on jus cogens to define the law of nations might be conceived as a
matter of necessity. Congress has acted only when necessary to maintain an
avenue of judicial recourse to aliens for violations of the law of nations, and it
has declined to provide statutory guidance as to the content of the law of
nations.217 Courts have been left to do the heavy lifting, and in doing so, have
explicitly and implicitly relied upon jus cogens to identify norms “of international character accepted by the civilized world and defined with a specificity
comparable to the features of the 18th-century paradigms.”218 And, for the
reasons discussed above, courts should continue to do so unambiguously.
Reliance on jus cogens to give meaning to the law of nations is consistent
with the object and purpose of the ATS and the intent of Congress in enacting it:
to enable tort claims for violations of fundamental international norms to
proceed in federal courts. Importantly, however, ATS jurisprudence reveals that
jus cogens is more than a set of international norms that satisfies a domestic law
test for the law of nations. Contemporary jurisprudence indicates that jus
cogens is the law of nations. It is in this sense that, as the law of nations, “jus
cogens norms of international law are part of the laws of the United States.”219
This external source of U.S. law withstands constitutional scrutiny and comports with U.S. international law jurisprudence since the founding era. This is
the enduring lesson of the Alien Tort Statute.
215. See supra note 1 and accompanying text.
216. Sosa, 542 U.S. at 715.
217. See supra notes 2–5 and accompanying text.
218. Sosa, 542 U.S. at 725.
219. Hawkins v. Comparet-Cassani, 33 F. Supp. 2d 1244, 1255 (C.D. Cal. 1999) (citing The Paquete
Habana, 175 U.S. 677, 700 (1900)).