bepress Legal Repository

A Customary International Law of Torts

G. Edward White, University of Virginia School of Law

Article comments

Forthcoming Valparaiso Law Review, 2006

Abstract

The Supreme Court’s recent decision in Sosa v. Alvarez-Marchain, considered along with its venerable landmark holding in Erie R.R. v. Tompkins, appears to have created a potential conundrum. At the framing of the Alien Tort Statute in 1789, which gave an alien an action in the federal courts for a “tort only in violation of the law of nations,” customary international law was regarded as “general” law, that is, one of the sources of common law rules handed down in federal and state courts, along with sources such as maritime law, the law merchant, and natural law. But it has been assumed that in the post-Erie jurisprudential universe there is no general federal common law, only the specific federal common law ancillary to federal statutes, such as the ATS, or to the Constitution. There remains, however, general state common law, including, hypothetically, a customary international law of torts derived in particular states. Nothing would seem to prevent a state court from going further, in defining the scope of a customary international law of torts within its jurisdiction, than the Sosa Court went in defining “torts...in violation of the law of nations” under the ATS. Thus if Erie governs customary international law decisions, a federal court might find itself bound to recognize a broader category of state customary international tort actions than the Sosa decision recognized under the ATS.

When one considers the source of most customary international law cases, this situation seems odd. Over the years the particular interest of the federal government in international relations and international norms, as opposed to those of the states, has broadened and deepened, and by the 1930s and 1940s the Court, in a trio of cases sandwiching the Erie decision, declared that the foreign affairs powers of the federal government were plenary and exclusive and that federal executive agreements with foreign nations trumped competing state law. Meanwhile the courts, after Erie, have identified areas in which federal courts are deemed to have continuing power to develop common law rules because the areas reflect unique and distinctive federal concerns. Yet three members of the Sosa Court found that Erie prevented the federal courts from engaging in any glosses on customary international law in the absence of direct statutory authorization, and the majority conceded that such glosses should be rare.

This article explores some possible escapes from the above conundrum. Its first part assesses whether the Sosa Court’s interpretation of the meaning of the phrase “a tort only in violation of the law of nations” in the Alien Tort Statute is historically accurate. Its second and third parts consider whether Erie need be regarded as a barrier to the conceptualization of customary international law as general common law by both sets of courts. A conclusion addresses the potential implications of a such a conceptualization for the future content of a customary international law of torts.

Subject Area

International Law, Public Law and Legal Theory, Torts

Recommended Citation

G. Edward White, "A Customary International Law of Torts" (October 2005). University of Virginia Legal Working Paper Series. University of Virginia Public Law and Legal Theory Working Paper Series. Working Paper 34.
http://law.bepress.com/uvalwps/uva_publiclaw/art34

No readers' reactions have been posted for this article. To submit one, copy the URL for this article (http://law.bepress.com/uvalwps/uva_publiclaw/art34) and click here.