Some, but Which? Filling in the Theoretical Gaps in Sosa v. Alvarez-Machain


This Note lays out the development of the ATCA and of the jus gentium (law of nations) into contemporary customary international law, as well as the two existent paradigms of ATCA interpretation, and establishes that Sosa is inconsistent with either extreme position. Since the Court’s holding in Sosa is under-theorized, this Note crafts a reasonable middle ground between the two paradigms: holding all universal jurisdiction offenses (and those significantly analogous) civilly actionable under the ATCA. It then uses Yousef as well as the Princeton Principles to synthesize a test for universal justiciability. The resultant formula constitutes a middle ground consistent with prior precedent on the ATCA and universal jurisdiction which serves the United States’ policy goals better than either the piracy or torture paradigms. Finally, it answers several main objections to this conception of the ATCA and to modern universal jurisdiction generally. Throughout, I engage particularly with Professor Eugene Kontorovich’s article Implementing Sosa v. Alvarez-Machain: What Piracy Teaches About the Limits of the Alien Tort Statute, the most salient post-Sosa argument for a narrow interpretation of the ATCA.


Human Rights Law | International Law | Law

Date of this Version

April 2005