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Anthony J Bellia - One of the best experts on this subject based on the ideXlab platform.
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the alien tort statute and the Law of Nations
University of Chicago Law Review, 2011Co-Authors: Anthony J Bellia, Bradford R ClarkAbstract:Courts and scholars have struggled to identify the original meaning of the Alien Tort Statute (ATS). As enacted in 1789, the ATS provided "[t]hat the district courts... shall... have cognizance... 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." The statute was rarely invoked for almost two centuries until, in the 1980s, lower federal courts began reading the statute expansively to allow foreign citizens to sue other foreign citizens for violations of modern customary international Law that occurred outside the United States. In 2004 in Sosa v. Alvarez-Machain, the Supreme Court addressed the statute for the first time and took a more restrictive approach than lower courts. Seeking to implement the views of the First Congress, the Court determined that Congress wished to grant federal courts jurisdiction only over a narrow category of actions "corresponding to Blackstone’s three primary [criminal] offenses [against the Law of Nations]: violation of safe conducts, infringement of the rights of ambassadors, and piracy." In this Article, we argue that neither the broader approach initially endorsed by lower federal courts nor the more restrictive approach subsequently adopted by Sosa fully captures the original meaning and purpose of the ATS. In 1789, the United States was a weak nation seeking to avoid conflict with other Nations. Every nation had a duty at the time to redress certain violations of the Law of Nations committed by its citizens or subjects against other Nations or their citizens - from the most serious offenses (such as those against ambassadors) to more mundane offenses (such as violence against private foreign citizens). If a nation failed to redress such violations, then it became responsible to the other nation, and gave the other nation just cause for war. In the aftermath of the Revolutionary War, Congress could not rely upon states to redress injuries suffered by British subjects at the hands of Americans. Accordingly, the First Congress enacted the ATS as one of several civil and criminal provisions designed to redress Law of Nations violations committed by U.S. citizens. The ATS authorized federal court jurisdiction over claims by foreign citizens against U.S. citizens for intentional torts to person or personal property. The statute thereby provided a self-executing means for the United States to avoid military reprisals for the misconduct of its citizens. Neither the ATS nor Article III, however, authorized federal court jurisdiction over claims between aliens. Indeed, federal court adjudication of at least one subset of such claims - alien-alien claims for acts occurring in another nation’s territory - would have contradicted the statute’s purpose by putting the United States at risk of foreign conflict. Despite suggestions that the true import of the ATS may never be recovered, the original meaning of the statute is relatively clear in historical context: the ATS limited federal court jurisdiction to suits by aliens against U.S. citizens, but encompassed any intentional tort to an alien’s person or personal property.
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the alien tort statute and the Law of Nations
University of Chicago Law Review, 2011Co-Authors: Bradford R Clark, Anthony J BelliaAbstract:Although courts and commentators have offered a wide range of theories in recent years, the original meaning of the Alien Tort Statute (ATS) has remained elusive. As originally enacted in 1789, the ATS provided ―[t]hat the district courts . . . shall . . . 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.‖ 1 The statute was rarely invoked for almost two centuries. Courts and commentators have struggled to interpret the ATS in light of changed circumstances, particularly changes in the scope and content of customary international Law. The statute identifies the plaintiff as an alien, but does not specify the nationality of the defendant. Nor does the statute expound the meaning of ―a tort only in violation of the Law of Nations.‖ In 1980, lower federal courts began the modern practice of interpreting the ATS broadly to allow foreign citizens to sue other foreign citizens for violations of modern customary international Law that occurred outside the United States. 2 In Sosa v Alvarez-Machain, 3 the Supreme Court took a more cautious approach. Without expressly addressing the propriety of the party alignment, the Court rejected a claim by a Mexican citizen suing another Mexican citizen as outside the scope of the ATS. 4 Specifically, the Court concluded that Sosa‘s claim for arbitrary detention did not constitute a tort in violation of the Law of
Bradford R Clark - One of the best experts on this subject based on the ideXlab platform.
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the alien tort statute and the Law of Nations
University of Chicago Law Review, 2011Co-Authors: Anthony J Bellia, Bradford R ClarkAbstract:Courts and scholars have struggled to identify the original meaning of the Alien Tort Statute (ATS). As enacted in 1789, the ATS provided "[t]hat the district courts... shall... have cognizance... 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." The statute was rarely invoked for almost two centuries until, in the 1980s, lower federal courts began reading the statute expansively to allow foreign citizens to sue other foreign citizens for violations of modern customary international Law that occurred outside the United States. In 2004 in Sosa v. Alvarez-Machain, the Supreme Court addressed the statute for the first time and took a more restrictive approach than lower courts. Seeking to implement the views of the First Congress, the Court determined that Congress wished to grant federal courts jurisdiction only over a narrow category of actions "corresponding to Blackstone’s three primary [criminal] offenses [against the Law of Nations]: violation of safe conducts, infringement of the rights of ambassadors, and piracy." In this Article, we argue that neither the broader approach initially endorsed by lower federal courts nor the more restrictive approach subsequently adopted by Sosa fully captures the original meaning and purpose of the ATS. In 1789, the United States was a weak nation seeking to avoid conflict with other Nations. Every nation had a duty at the time to redress certain violations of the Law of Nations committed by its citizens or subjects against other Nations or their citizens - from the most serious offenses (such as those against ambassadors) to more mundane offenses (such as violence against private foreign citizens). If a nation failed to redress such violations, then it became responsible to the other nation, and gave the other nation just cause for war. In the aftermath of the Revolutionary War, Congress could not rely upon states to redress injuries suffered by British subjects at the hands of Americans. Accordingly, the First Congress enacted the ATS as one of several civil and criminal provisions designed to redress Law of Nations violations committed by U.S. citizens. The ATS authorized federal court jurisdiction over claims by foreign citizens against U.S. citizens for intentional torts to person or personal property. The statute thereby provided a self-executing means for the United States to avoid military reprisals for the misconduct of its citizens. Neither the ATS nor Article III, however, authorized federal court jurisdiction over claims between aliens. Indeed, federal court adjudication of at least one subset of such claims - alien-alien claims for acts occurring in another nation’s territory - would have contradicted the statute’s purpose by putting the United States at risk of foreign conflict. Despite suggestions that the true import of the ATS may never be recovered, the original meaning of the statute is relatively clear in historical context: the ATS limited federal court jurisdiction to suits by aliens against U.S. citizens, but encompassed any intentional tort to an alien’s person or personal property.
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the alien tort statute and the Law of Nations
University of Chicago Law Review, 2011Co-Authors: Bradford R Clark, Anthony J BelliaAbstract:Although courts and commentators have offered a wide range of theories in recent years, the original meaning of the Alien Tort Statute (ATS) has remained elusive. As originally enacted in 1789, the ATS provided ―[t]hat the district courts . . . shall . . . 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.‖ 1 The statute was rarely invoked for almost two centuries. Courts and commentators have struggled to interpret the ATS in light of changed circumstances, particularly changes in the scope and content of customary international Law. The statute identifies the plaintiff as an alien, but does not specify the nationality of the defendant. Nor does the statute expound the meaning of ―a tort only in violation of the Law of Nations.‖ In 1980, lower federal courts began the modern practice of interpreting the ATS broadly to allow foreign citizens to sue other foreign citizens for violations of modern customary international Law that occurred outside the United States. 2 In Sosa v Alvarez-Machain, 3 the Supreme Court took a more cautious approach. Without expressly addressing the propriety of the party alignment, the Court rejected a claim by a Mexican citizen suing another Mexican citizen as outside the scope of the ATS. 4 Specifically, the Court concluded that Sosa‘s claim for arbitrary detention did not constitute a tort in violation of the Law of
Ernest A Young - One of the best experts on this subject based on the ideXlab platform.
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universal jurisdiction the alien tort statute and transnational public Law litigation after kiobel
Duke Law Journal, 2014Co-Authors: Ernest A YoungAbstract:The Alien Tort Statute, enacted in 1789 as part of the first Judiciary Act, provides that “[t]he 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. . . .” Although the statute lay dormant until the 1980s, the ATS has since become the font of transnational public Law litigation in American courts. This litigation, frequently involving largely foreign parties and events, has become a form of civil-side universal jurisdiction. Like more traditional forms of universal jurisdiction, it allows American courts to hear human rights claims based on the enormity of the offense, even when the claims lack any significant ties to the United States. But unlike traditional universal jurisdiction, which is overwhelmingly a criminal phenomenon, the ATS places control over initiation and conduct of the litigation in private hands and engages the exceptional machinery of American civil justice.The Supreme Court sharply limited ATS suits last year in Kiobel v. Royal Dutch Petroleum Co. This article defends the Court’s rejection of universal jurisdiction in Kiobel and assesses the future of human rights litigation in American courts. I make three main sets of arguments. First, I submit that the the scope of human rights litigation under the ATS is best viewed not as a sui generis problem of foreign relations Law, as most Lawyers and scholars have treated it, but within the more traditional federal courts framework of implied rights of action and federal common Law. Kiobel’s concerns about extraterritorial application of the ATS fit comfortably within this framework, and they suggest that the Court will be extremely cautious about expanding the scope of ATS litigation in future cases. Second, I contend that scholarly exploration of the ATS’s terse text and limited history has reached the point of diminishing returns. The Framers of the First Judiciary Act could not have anticipated what ATS litigation would become, and they left us very few useful clues to answer, for example, whether aiders-and-abettors of human rights violations should be liable. The best hope for adequate answers to such questions lies with Congress, and the article proposes a number of reforms that should be addressed in a new statute amending or replacing the ATS. Third, I place the ATS in the context of broader debates about enforcement of international human rights. In this context, we confront two crucial questions of institutional design: reliance on supranational or national institutions, and public or private control of enforcement. I suggest that this debate, too, can be usefully informed by domestic debates about regulatory enforcement. But the international context affords a unique middle option, which is decentralized public enforcement of international human rights by national governments.
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how customary is customary international Law
William and Mary law review, 2013Co-Authors: Emily Kadens, Ernest A YoungAbstract:TABLE of CONTENTS INTRODUCTION I. AN INTELLECTUAL GENEALOGY II. THE HISTORY of CUSTOM AND CURRENT DEBATES ABOUT CUSTOMARY INTERNATIONAL Law A. Practice and the Extra Ingredient B. The Theory and Practice of Custom C. Customary Law and Contemporary Human Rights CONCLUSION INTRODUCTION The ambiguity of the Lawmaker has long been a central problem in international Law. Writing in the positivist tradition, H.L.A. Hart famously doubted that international Law is Law at all because it lacks not only a single sovereign Lawmaker but also a system of "secondary rules" for the making and alteration of legal norms. (1) Treaties bind by consent, but only between the parties. Even when large majorities of countries sign on to multilateral agreements, we often lack any authoritative method for determining those agreements' meaning or guaranteeing consistent enforcement. In any event, treaty Law leaves large gaps, (2) and often those gaps exist in those areas with the most pressing need for Law. In an earlier age, international Lawyers frequently turned to natural Law to fill these gaps, (3) but a revival of the natural Law tradition seems unlikely at a time when countries with widely varying religious, philosophical, and political traditions aspire to agree on one international Law. (4) Enter custom--the only form of Law without a Lawmaker still recognized in our post-lapsarian world. At certain times and places in world history, custom is thought to have given rise to a coherent and effective set of legal norms "from the bottom up"--that is, without the command of a single sovereign. (5) If merchants operating across state borders over time can produce a set of customary rules to govern their transactions, even without formal consent or the intervention of a sovereign authority, (6) then perhaps independent Nations similarly can derive binding norms of conduct from their own practices. Conventional wisdom in international Law thus holds that the international community has developed a set of definable rules through custom that Nations must accept as Law. (7) This wisdom rests on extrapolation from the historical success of custom in commercial Law. On this view, customary international Law derives its appeal not only from a fear that it may be the only game in town but also from a widely held sense that it is, well, customary. We question that latter assumption in this Article by comparing early theories of custom with the debates in which publicists engage today. Article 38(1)(b) of the Statute of the International Court of Justice asserts that custom, defined as "evidence of a general practice accepted as Law," forms a fundamental part of international Law. (8) This assumption about the role of custom has a well-known history extending back to the writings of the Spanish theologian Francisco Suarez (1548-1617), who equated the Law of Nations with custom in his Treatise on Laws and God the Lawgiver of 1613. (9) This history, however, has a prehistory that modern scholars do not know as well, and that prehistory sheds some interesting light on current debates about the usefulness of the standard definition of custom. The value of studying history lies not in any claim that premodern jurists had better answers than do scholars today, but rather in a historical perspective on the problem of how custom functions as Law. That problem, then as now, remains largely intractable. The debates among jurists of the thirteenth and fourteenth centuries mirror the debates in which their intellectual descendants engage hundreds of years later. The story of custom, in both its past and present manifestations, thus underscores contemporary doubts about the usefulness of customary Law on the international plane. Part I of this Article surveys the historical development of customary Law. Part II ventures some suggestions as to what that history can tell us about current debates over customary international Law. …
Ryan Mitchell - One of the best experts on this subject based on the ideXlab platform.
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jean bodin s Law of Nations
Social Science Research Network, 2020Co-Authors: Ryan MitchellAbstract:This article examines Jean Bodin as a theorist of “international” Law avant la lettre. By contrast with the near-contemporaries more often considered as early pioneers of the emerging Law of Nations, Bodin’s work depicts legal order beyond the individual polity only obliquely. However, key facets of his description of sovereign authority and the state, and especially of the natural Law framework in which he situated them, had major implications for the legal relations among peoples. While Bodin did not make it a project to explicitly formulate any new doctrine of the Law of Nations, his thought implies the possibility and necessity of a rational legal order among sovereign states, and has inspired subsequent developments in the field.
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jean bodin s Law of Nations
Political Theology, 2020Co-Authors: Ryan MitchellAbstract:This article examines Jean Bodin as a theorist of “international” Law avant la lettre. By contrast with the near-contemporaries more often considered as early pioneers of the emerging Law of nation...
Domingo Rafael - One of the best experts on this subject based on the ideXlab platform.
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alberico gentili and the secularization of the Law of Nations
Social Science Research Network, 2020Co-Authors: Domingo Rafael, Giovanni MinnucciAbstract:A prominent early modern Italian legal theorist and practicing Lawyer, Alberico Gentili is regarded, along with Francisco de Vitoria and Hugo Grotius, as one of the founders of the science of the modern Law of Nations (ius gentium) and a major figure in the development of international relations. He designed a solid and autonomous framework for the Law of Nations based on three pillars: the Greco-Roman idea of natural Law, the Justinian compilation of Roman Law, and the-then novel Bodinian notion of sovereignty as supreme, perpetual, and indivisible power. Gentili freed the Law of Nations from excessive scholastic influences and theological importations, avoiding metaphysical developments and overly subtle dialectics. He tried to build a system based on practice and experience. His legal construction is more inductive from events, episodes, customs, and facts, than deductive from unchanged premises. Providing some new arguments, he removed religion as a valid reason for conflict and war, he advocated for the legitimacy of non-Christian regimes, especially the Ottomans, and he tried to fix the tenuous lines of separation between jurisprudence and theology and between the internal forum and external forum of canon Law. Neither the pope nor the Roman Catholic Church has a place in Gentili’s systematic account. His world-famous saying — silete theologi in munere alieno! — commands the theologian not to be involved in other people’s business and was claimed centuries later by the jurisprudence of European public Law to argue in favor of the secularization of the Law, beyond the limits Gentili himself intended.