Law Commons^™

The Curious Case Of Corporate Liability Under The Alien Tort Statute: A Flawed System Of Judicial Lawmaking, Julian Ku

Julian Ku

There is a widespread consensus in the United States that private corporations owe duties under customary international law and can be subject to lawsuits under the Alien Tort Statute. The consensus is so broad that there is not a single court decision in the United States, and barely any legal scholarship, that dissents from this view. Despite this wide support, the consensus in favor of corporate liability for violations of customary international law is wrong. A survey of international legal sources would find embarrassingly little evidence of an international consensus (or even of international support) in favor of imposing liability …

International Law & Politics: The Same Under Another Name?, Ana M. Nacvalovaite

Ana M Nacvalovaite

ABSTRACT: The Article examines the perceived dichotomy between international law and international politics from a legal perspective. It presents a brief over-view of the sources of international law and shows how and why the perceived legal/political dichotomy has been prevalent in the academic discourse surrounding the sources and nature of international law. Consequences of legal truth as to whether treaty bodies are analogous with political bodies will serve as a practical lens through which to ground the relevance and importance of this topic today. From this, one will be able to establish that such a distinction between a legal system …

Currency Of Love: Customary International Law And The Battle For Same –Sex Marriage In The United States, Sonia B. Green

Sonia Bychkov Green

The battle for same-sex marriage is likely to be the civil rights issue of this decade. Developments all over the world over the last several years have caused celebration, public outcry and passionate debate. In the last year alone, the first Latin American same-sex wedding was performed, Sweden joined the nations who allow same-sex marriage, and the United States saw the “Proposition 8” debacle in California, and the new federal lawsuits that will inevitably propel the issues toward the Supreme Court. The legal debate in the United States has asked the crucial question: is there a legal right to marriage …

Seizing The “Grotian Moment”: Accelerated Formation Of Customary International Law In Times Of Fundamental Change, Michael P. Scharf

Michael P Scharf

Growing out of the author’s experience as Special Assistant to the International Prosecutor of the Cambodia Genocide Tribunal in 2008, this article examines the concept of “Grotian moment,” a term the author uses to denote a paradigm-shifting development in which new rules and doctrines of customary international law emerge with unusual rapidity and acceptance. The article makes the case that the paradigm-shifting nature of the Nuremberg precedent, and the universal and unqualified endorsement of the Nuremberg Principles by the U.N. General Assembly in 1946, resulted in accelerated formation of customary international law, including the mode of international criminal responsibility now …

Customary International Law In The 21st Century: Old Challenges And New Debates, Roozbeh (Rudy) B. Baker

Roozbeh (Rudy) B. Baker

This Article will survey the new scholarship that has emerged in international law to challenge the two traditional sources of customary norms, state practice and opinio juris. With the recent growth, in the international system, of self-contained international criminal tribunals, new challenges facing international law have emerged. Institutionally structured as self-contained legal regimes, international legal tribunals such as the ICTY, ICTR, and now the ICC have nevertheless contributed to a new paradigm within international law. The jurisprudence of these international criminal tribunals, on a wide range of international legal questions, has slowly begun to be elevated into norms of customary …

Balancing Judicial Cognizance And Caution: Whether Transnational Corporations Are Liable For Foreign Bribery Under The Alien Tort Statute, Matt A. Vega

Matt A Vega

This article argues that transnational corporate bribery is actionable under the Alien Tort Statute of 1789 (ATS) as a violation of the law of nations. In the early years of the Republic, bribery of a foreign official was commonly understood to violate the law of nations. Today, bribery is occasionally mentioned in passing as a precursor to human rights violations, but the bribe itself is seldom analyzed as a potential violation of the law of nations. However, the Second Circuit Court of Appeals recently allowed “aiding and abetting” to proceed as a customary international law violation under the ATS in …

Withdrawing From Custom And The Paradox Of Consensualism In International Law, Chin Leng Lim, Olufemi Elias

Chin Leng Lim

In their excellent article, Withdrawing from International Custom, Professors Curtis Bradley and Mitu Gulati call into question the prevailing conception of customary international law, according to which states “never have the legal right to withdraw unilaterally from customary law” (the “Mandatory View”). Bradley and Gulati question the intellectual history and functional desirability of the Mandatory View, and they identify “significant uncertainties about how the Mandatory View would work in practice.” Their observations appear to us to be convincing. If the basis of the Mandatory View is not convincing, then its main tenets, such as the absence of a right of …

Who Watches The Watchmen? 'Vigilant Doorkeeping,' The Alien Tort Statute, & Possible Reform, Keith A. Petty

Keith A. Petty

The Alien Tort Statute (ATS) allows alien plaintiffs to file civil actions in U.S. district courts for torts violating the law of nations or U.S. treaties. After the 2nd Circuit’s Filartiga decision in 1980, the debate began as to whether the ATS was a useful tool against human rights violators or an intrusion into U.S. foreign relations. In 2004, the Supreme Court in Sosa v. Alvarez-Machain resolved some of the questions left open by Filartiga.

Sosa concluded that ATS claims must be limited to law of nations violations as well defined as those recognized in 1789. The Court tasked the …