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admiralty and maritime jurisdiction; and between the United States and foreign states,
citizens or subjects and consuls. Article VI recognizes treaties as the supreme law of
the land.
4
The United States is the only country with such a constitutional provision.
However, given that the United States inherited certain rights and duties as a new
nation, the Framers must have assumed that some international law was inherent
in the U.S. status as a sovereign state, and the international law that governed the
British Crown’s relations with other nations was automatically incorporated into the
U.S. constitutional order as general common law.
5
The first Continental Congress was also keenly aware of international law and its
importance. In 1789 Congress passed the Judiciary Act, which included a provision
called the Alien Tort Claims Act granting foreign nationals the right to sue foreign
officials in U.S. courts for breach of a tort in violations of the law of nations or a treaty
of the United States.
6
The statute extends the extraterritorial jurisdiction of the U.S.
court to adjudicate matters that occurred in other sovereign states. The statute remained
dormant for over two centuries, until a lawsuit was filed by the Filartiga family of
Paraguay.
7
Since 1980 the statute has been invoked by several foreign nationals in suits
against their abusers.
8
The Supreme Court initially weighed in on the issue in
Sosa v.
Alvarez Machain
, in which it ruled that the ATS was jurisdictional in nature, and courts
were entitled to hear certain claims under international law. However, the Supreme
Court not only limited the scope of U.S. courts to give cause of action for violations of
the law of nations, but it also narrowed the definition of customary international law to
those universally recognized by civilized nations.
9
Thereafter several courts interpreted
Sosa differently. This led to a new round of arguments in the Supreme Court on the
status of the ATS in the case
Kiobel v. Royal Dutch Petroleum Co.
In May, 2013, the
Supreme Court issued its much anticipated decision in
Kiobel v. Royal Dutch Petroleum
Co.
in which it further restricted the jurisdiction of federal courts to hear cases under
the ATS.
10
The court invoked the principle of
forum non conveniens
as a barrier to
intervening in such cases, and it raised concerns about the extraterritorial jurisdiction
of the act and its interference in the nation’s foreign relations.
11
4
Paul R. Dubrinsky,
supra
note 1, at p. 632.
5
Paquete Habana
, 175 U.S. 677, 700 (1900);
See
David J. Bederman,
Customary International Law in
the Supreme Court, 1861-1900,
p. 89, in David L. Sloss, Michael D. Ramsey, &William S. Dodge, eds.
International Law in the U.S. Supreme Court (2011).
6
28 U.S.C. § 1350; See Anne-Marie Burley,
The Alien Tort Statute and the Judiciary Act of 1789: A Badge
of Honor
, 83 AJIL, 461 (1989); Curtis A. Bradley,
The Alien Tort Statute and Article III
, 42 Va. J. Int’l
L. 587 (2002).
7
Filartiga v. Pena-Irala
, 630 F 2d 876 ( 2d Cir. 1980).
8
See Kadic v. Karadzic,
70 F.3d 232, 239-241.
9
Curtis A. Bradley & Jack L. Goldsmith,
Foreign Relations Law
, 3
rd
ed. (2009), p. 602; John O. McGinnis,
Sosa and the Derivation of Customary International Law,
p. 483, in David L. Sloss,
et al
., eds. International
Law in the U.S. Supreme Court (2011).
10
133 S. Ct. 1659, 185L. Ed. 2d 671 (2013).
11
Kristin Linsley Myles & James Rutten,
Kiobel Commentary: Answers…and more questions,
@http://
www.scotusblog.com(April 18, 2013).