The Sosa Decision
The manner in which international law is applied by the domestic courts of the United States has been an issue without any definitive boundaries since 1789. It is unclear as to the type and extent of international law that could be brought as a cause of action inside the United States for events that occurred outside its borders. The landmark case of Sosa v. Alvarez-Machain, decided by the Supreme Court in 2004, has changed the landscape in this area. This decision will alter the field of domestic enforcement of international law by making it exceedingly difficult for an non-citizen to sue under the Alien’s Tort Claims Act for recovery against a tortious act committed outside the U.S. by a party that comes under the personal jurisdiction of U.S. courts. Sosa also eliminates any liability of the U.S. government in U.S. courts under the Federal Tort Claims Act for any alleged tortious acts that occur in a foreign country.
These new limitations may lead to an accession of abuses by the U.S. government, U.S. entities, and other foreign powers due to the lack culpability for torts they may commit. On the other hand, Sosa helps the judiciary in maintaining its independence from foreign policy in order to allow the Executive and Legislative branches of the federal government to exercise their constitutionally granted powers to dictate U.S. foreign policy abroad. While it attempted to balance conflicting interests, the decision of the Supreme Court in Sosa is vague, and has thus been subject to divergent application by different federal judges since 2004, resulting in similar cases being decided quite differently. In order to stem the problems of conflicting case results and an accession of unchecked abuses, Congress should use its legislative powers to create a more definitive policy that clarifies the application of international law in U.S. courts and liability of the U.S. government for extraterritorial acts in order to create uniformity in these areas, hold parties liable for extreme violations of human rights, and avoid divergent and conflicting judicial decisions.
International Law | Jurisdiction | Torts
Date of this Version
Jeffrey P. Saxon, "The Sosa Decision" (April 11, 2006). bepress Legal Series. bepress Legal Series.Working Paper 1253.