I'm nothing but a trial judge in one federal court.... I don't run the universe, and I have nothing to do with international affairs.(1)
Consider the above quote from a federal district court judge in light of the following: In the early 1990s, members of an Algerian fundamentalist group brutally raped and tortured several Algerian women in Algeria.(2) In addition, the group butchered and summarily executed friends and family members of the women in Algeria.(3) When the Algerian military government banned the fundamentalist group, one of the group's members fled to the United States, sought political asylum, and conducted business on behalf of the group from Washington, D.C.(4) The Algerian women then brought suit against the group in the United States District Court for the District of Columbia, alleging that the actions taken against them, their friends, and their family members in Algeria constituted violations of international law.(5)
Despite the fact that the alleged events described above took place in Algeria, concerned only Algerian citizens, and involved a claim of a violation of international law, a United States district court had jurisdiction over the case under the Alien Tort Claims Act (ATCA).(6) provides: "The district courts shall have original jurisdiction of any civil [tort] action by an alien ... committed in violation of the law of nations or a treaty of the United States."(7) Rather than claiming a violation of a treaty to which the United States was a party, the Algerian women based their ATCA claim on a violation of the "law of nations.(8)
Ascertaining whether a violation of the "law of nations" has occurred involves delving into the territory of "customary international law,"(9) a growing body of law that includes norms that emerge when "conduct, or the conscious abstention from certain conduct, of states ... becomes in some measure a part of [the] international legal order."(10) Determining the scope of customary international law is often difficult. Although the Restatement (Third) of the Foreign Relations Law of the United States(11) ("Restatement") and a few federal court cases(12) provide clarification and reinforce the authority of customary international law in U.S. courts, ambiguities remain. The Restatement itself acknowledges some of this uncertainty: "No definition of customary law has received universal agreement.... Each element in attempted definitions has raised difficulties. There have been philosophical debates about the very basis of the definition: how can practice build law?"(13)
The ambiguities inherent in defining and using customary international law have sparked heated debates regarding its use, particularly in international human rights claims in domestic courts.(14) On one side of the debate are those who maintain that U.S. courts have a responsibility to enforce and uphold international law, and should continue to do so even when deciding a claim requires the courts to make difficult customary international law findings.(15) On the other side are critics who argue that the ambiguities of customary international law are too great, that U.S. courts lack the authority to "find" customary international law, and that letting them do so offends federalism and separation of powers principles.(16) For example, some critics assert that customary international law is unenforceable in U.S. courts without an explicit congressional authorization.(17) An increase in the number of international human rights cases reaching federal courts,(18) and the recent trend toward loosening the requirements of and decreasing the time necessary for establishing customary norms,(19) have intensified the customary international law debate and imposed urgency on the need to resolve it.
Almost a century ago, in The Paquete Habana,(20) the Supreme Court acknowledged that "[i]nternational law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction."(21) The Court, in The Paquete Habana, upheld the idea that U.S. courts should not ignore cases with international law elements; rather, they should engage in a legal analysis that incorporates recognition of international law principles.(22) The Paquete Habana also specifically acknowledged the validity of customary international law by further clarifying that international law could be binding even when no treaty or legislation codified that law:
[W]here there is no treaty, and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations; and, as evidence of these, to the works of jurists and commentators, who by years of labor, research and experience, have made themselves peculiarly well acquainted with the subjects of which they treat.(23)
Since Justice Gray wrote the Court's opinion in The Paquete Habana, major world events have expanded the scope of international law and increased the significance of its definition, interpretation, and enforcement.(24) As international law has grown in importance in the United States, domestic judicial decisions on international law issues, particularly those involving human rights, have cited The Paquete Habana in support of the use of customary international law as authority in U.S. courts.(25) A court's decision to find and adhere to a customary international norm thus has important implications for the legacy of respect for international law fostered by The Paquete Habana. Finding and adhering to customary international norms reinforces the legacy of The Paquete Habana and conveys the United States's commitment to ensuring that it serves as a cooperative member of an increasingly globalized world; refusing to find and adhere to customary international norms unravels the legacy and suggests a rebellion against international constraints.
This Note contends that U.S. courts should reinforce--not unravel--The Paquete Habana's legacy by recognizing and upholding norms of customary international law in international human rights cases, in spite of the growing criticism of that practice. As this Note argues, the ambiguity inherent in the nature of customary international law is not a justification for ignoring the authority of customary international law. That ambiguity is in fact quite similar to uncertainties in other areas of law in which courts routinely make decisions. Foreclosing or severely limiting the viability of international human rights claims based on customary international law in U.S. courts not only eliminates the possibility of relief for many injured plaintiffs,(26) it also sends a disturbing message to the world community that justice in the United States does not encompass challenges of internationally recognized abuses of human rights.(27)
The first section of this Note discusses attempts made to define customary international law, including those in the Restatement. The second section discusses successful, albeit controversial, uses of customary international law in ATCA claims in U.S. courts, including the Second Circuit's decisions in Filartiga v. Pena-Irala(28) and Kadic v. Karadzic,(29) and the recent federal district court decision in Doe v. Islamic Salvation Front (FIS).(30) The third section addresses some of the criticisms regarding the use of customary international law in U.S. courts and discusses an unsuccessful attempt to use customary international law, without ATCA, that is consistent with those criticisms. The fourth section proposes reasons why, in spite of those criticisms, U.S. courts should continue to reinforce the legacy of respect for customary international law as the new century approaches.
ATTEMPTS TO DEFINE CUSTOMARY INTERNATIONAL LAW
Although a full discussion of the history of customary international law is beyond the scope of this Note,(31) some background on past attempts to define and identify it is necessary. In The Paquete Habana, the Supreme Court noted that ascertaining customary international law entails "resort ... to the customs and usages of civilized nations; and, as evidence of these, to the works of jurists and commentators, who by years of labor, research and experience, have made themselves peculiarly well acquainted with the subjects of which they treat."(32) These words may not provide an explicit definition of what customary international law is, but they do provide a guide as to how to find it. In accordance with the words of The Paquete Habana, courts seeking to identify international legal norms have looked to experts in the field of international law for guidance on the extent to which certain practices have become so widespread as to be considered part of international law.(33) These experts have been instrumental in determining the status of various practices; however, their role is not to steer the law in a specific direction.(34) Rather, they work with existing definitions and examples of practices that already have become customary international law in making their assessments.(35)
In their analysis, experts and judges may look to the Restatement.(36) The Restatement acknowledges that a precise definition of customary international law remains elusive;(37) nevertheless it attempts to provide a workable definition. In its section on sources of international law, the Restatement describes customary international law as "result[ing] from a general and consistent practice of states followed by them from a sense of legal obligation."(38) Clarification in the comments and reporters' notes to section 102 indicates that the determination as to when a practice actually becomes law through custom is "often difficult"(39) and that today a practice can achieve customary international law status in a short period of time.(40)
The Restatement's "Human Rights" section is more precise, explicitly listing practices that have achieved the status of customary international law. According to section 702:
A state violates international law if, as a matter of state policy, it practices, encourages, or condones (a) genocide, (b) slavery or slave trade, (c) the murder or causing the disappearance of individuals, (d) torture or other cruel, inhuman, or degrading treatment or punishment, (e) prolonged arbitrary detention, (f) systematic racial discrimination, or (g) a consistent pattern of gross violations of internationally recognized human rights.(41)
This list is not meant to be exhaustive. Comment (a) of section 702 offers a caveat: "The list is not necessarily complete, and is not closed: human rights not listed in this section may have achieved the status of customary law, and some rights might achieve that status in the future."(42) The comments also note that systematic religious discrimination, the right to own and not be arbitrarily deprived of property, and gender discrimination were either already principles of customary international law at the time the American Law Institute (ALI) adopted the Restatement in 1987, or were on the verge of achieving that status.(43)
According to the Restatement, therefore, a plaintiff seeking to prove a violation of customary international law can offer evidence that the practice at issue constitutes one of those stated in (a) through (f) of section 702 of the Restatement, is part of a consistent pattern of gross violations within section (g), or is not on the list, but has achieved the status of customary law since the ALI's adoption of the Restatement. A court then weighs the evidence offered in support of the alleged violation to determine whether customary international law should apply to the action in question.(44)
In Forti v. Suarez-Mason,(45) a federal district court offered three additional criteria for ascertaining whether an act or practice falls within the …