Online Workshop Comment: Where Sosa is Unclear; Where Sosa is Clear

[Opinio Juris note: We are delighted that Martin Flaherty, Leitner Family Professor of Law at Fordham Law School and a leading scholar in the fields of human rights and foreign relations law, has sent along the following thoughts on the Bradley-Goldsmith-Moore article.]

This is a rich and stimulating exchange, and I thank all concerned for their contributions. My general reaction is to register a degree of puzzlement with regard first, to the question of whether Federal courts may fashion Federal common law derived from CIL in the absence of authorization from the so-called political branches; and second, to agree strongly with Beth Stephens about Sosa ratifying most post-Filartiga ATS jurisprudence.

First, I believe that Sosa simply leaves open the question about the status of CIL absent authorization. To point out the obvious, that question wasn’t before the Court, nor was it a topic of sustained discussion in dicta. Thus we are left with making inferences from limited evidence. On one hand, Sosa indeed adopts sub silentio most of Curt and Jack’s prudential concerns, which themselves relate to democratic approval and/or foreign relations concerns. It would follow that such concerns would be even greater in the absence of a statute such as the ATS. To infer further that this means rejection of the modern position strikes me as over-arguing. On the other hand, the majority’s handful of reference’s to Sabbatino indicate both a) that the courts may make Federal common law on international matters post-Erie [noting the Court has assumed the competence to fashion judicial rules of decision of particular importance in foreign affairs, though noting a general practice of looking for authorization, slip.op. at 32], and might even still apply international law directly [n. 18]. Fairly read, I read Sosa leaving the status of CIL without more open, and find unconvincing the arguments that it in effect rejects the modern position.

Second, Sosa’s standard as to what types of CIL claims would pass muster under the ATS features the rhetoric of extreme prudence with the realty of ratifying the post-Filartiga litigation that had developed to that point. The Court cashes out the prudential concerns with two standards: general assent (of “civilized” nations) and specificity of the claim. The first appears to be a conflation of standard CIL analysis, unless the Court unwittingly meant to jettison the opinio juris inquiry. The second appears home-grown, though as Beth Stephens notes, articulated in Filartiga itself. It is hard to see how even the specificity requirement would undermine such jus cogens claims such as torture, extra-judicial killing, prolonged arbitrary arrest and detention, which have been the core of ATS litigation. I readily admit that the standard may present real difficulties in other regards, e.g. corporate complicity. That is not to say the standard inevitably results in rejecting UNOCAL claims, or that it should. It is simply to argue that the claims that have been established to date appear comparatively safe.