Online Workshop Comment: Is Customary International Law Part of the “Law of the United States”?

by Julian Ku

I want to thank David again for agreeing to join us here at Opinio Juris for the next couple of days to discuss his forthcoming article (written with Curtis Bradley and Jack Goldsmith), “Sosa, Customary International Law, and the Relevance of Erie” (the “Article”). The Article demonstrates to me that Sosa has not ended the debate about CIL that Curt and Jack launched 10 years ago. I agree with you all that the Sosa Court has still not explained fully how or why CIL is integrated into the U.S. legal system post-Erie. On the other hand, neither does the Article, at least to my satisfaction.

3 Responses

  1. Ten years after publication of their first attack on the “modern position,” Professors Bradley and Goldsmith, now joined by Professor Moore, continue to undermine the strength of their argument by opposing exaggerated (and simplistic) categories – “the modern position” and the “revisionists.” Elsewhere, they acknowledge that the group they lump together as the modernists includes a range of views about the modern import of customary international law. One such view is amply supported by the Sosa decision: customary international law is a source of federal common law to be applied in appropriate cases. That is not to say that it is incorporated in toto into federal common law. But it does signify that it can be relied upon by the federal courts in a range of situations (some of which they identify in their article), that it is federal (not state) law, and that disputes about its interpretation raise federal questions.

    That said, I’m more interested at the moment in their interpretation of the impact of Sosa on the ongoing Alien Tort Statute litigation. Two points here: First, they conclude that Sosa is a rejection of much of Filartiga and its progeny only by misinterpreting those cases. The Filartiga line of cases was a remarkably cautious set of decisions. The standard put forth by Sosa – claims must be “accepted by the civilized world” and “defined with…specificity” – comes directly from Filartiga, which required that claims “command the ‘general assent of civilized nations’” and be capable of “clear and unambiguous” definition. The cases use virtually identical language because both draw directly from Paquete Habana. In practice, application of this standard pre-Sosa led to the dismissal of most ATS claims, many of them for failure to state an international law violation that met its exacting requirements. But the standard also permitted a handful of important cases to proceed against defendants accused of truly egregious human rights abuses.

    Second, their discussion of the application of Sosa to the current debate about corporate aiding and abetting liability is surprisingly thin. Step back for a minute. In what legal system do we hold liable the person who shoots the gun, but not the person who buys it and hands it to him, loaded and ready to shoot? U.S. and international courts and commentators have recognized this consistently, from the 18th century (see Blackstone’s discussion of accessories to piracy, for one example) to the 21st century (the administration recognized this in the context of a civil statute imposing liability for terrorist acts, urging the courts to interpret the statute to include aiding and abetting liability). Whether viewed as a matter of federal common law or widely accepted international law, complicity liability is surely part of the “tort” encompassed by the ATS. Finally, some disagreement about the standard to define aiding and abetting liability is not fatal: The paradigm case relied upon by Sosa to define piracy, U.S. v. Smith, recognized “a diversity of definitions,” but held that agreement about the core of the definition – “robbery, or forcible depredations upon the sea, animo furandi” – was sufficient.

  2. Opinio Juris Workshop on Sosa and Customary International Law:

    Opinio Juris has launched an Online Workshop on “Sosa, Customary International Law, and the Continuing Relevance of Erie.” Thus far, it has con…

  3. Why, exactly, is there anything strange about a statute that confers jurisdiction to hear claims based on “tort only, in violation of the law of nations” being interpreted as allowing the federal courts to look at the law of nations (including customary international law) as furnishing the rule of decision in cases brought pursuant to the jurisdictional grant?

    Professor Ku expresses wonderment at the idea that when Congress says “law of nations” or “law of war” in a statute, that this means that the courts will have to determine what those concepts mean. I don’t see how that is even controversial.

    One can, of course, argue what norms are included in the “law of nations”, and one can also argue what portions of the “law of nations” give rise to tort liability. One can even argue that nothing in the “law of nations” gives rise to tort liability, although that position trips on the notion that Congress must be presumed to have been doing SOMETHING when it enacted 28 U.S.C. § 1350.

    But the contention that courts cannot look to international law when Congress tells them, specifically, to look to international law is nonsensical.

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