Academic journal article
By Curran, Patrick D.
Chicago Journal of International Law , Vol. 5, No. 1
The enforcement of international law through private litigation in domestic tribunals has a long historical pedigree.1 However, the practice's continued viability, proper scope, and general legitimacy are issues of some controversy.2 Perhaps the single greatest point of controversy arises from a domestic tribunal's determination of customary international law, and the application and management of private rights arising out of that law. Many courts in the United States have severely restricted opportunities for private enforcement of international law by implementing rigid rules of construction regarding treaty self-execution, thereby constraining the sources of evidence available to courts when determining privately enforceable "customary" norms of international law. As a result, private plaintiffs are often prohibited from enforcing customary norms of international law when litigating in domestic tribunals.3
In this Development, I argue that a narrow approach to identifying customary norms of international law ignores the legal significance of treaty negotiation. Because a number of countries (including the United States, used herein as an example) traditionally adopt universalist stances during the negotiation of international human rights treaties, domestic tribunals in those nations should look to executive branch pronouncements as indicators of international law norms available for enforcement in domestic tribunals. If a state's executive branch advances a universalist understanding of human rights contained in a treaty, the executive branch's statements on the universality of the legal norm should support private enforcement of the norm, even if the treaty is not self-executing or if the state does not ratify the treaty. Such an approach would speed the adoption of emerging human rights norms by cultural-relativist nations, and would simultaneously allow courts to take advantage of the executive branch's superior institutional competence in the realm of foreign affairs. Given the undeniable importance of executive branch pronouncements in determining international law,4 courts should begin to take note of universalist and cultural-relativist stances during the negotiation of non-self-executing and non-ratified treaties, and should use those statements to guide their determination of privately enforceable norms in that state's domestic tribunals.
I. PRIVATE ENFORCEMENT OF CUSTOMARY INTERNATIONAL LAW IN THE UNITED STATES
The Alien Tort Claims Act ("ATCA") provides that "[t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States."5 The statute arguably contains both jurisdictional and substantive components: the act provides jurisdiction over cases arising under the law of nations, requiring courts to determine the substantive principles governing those suits.6
American courts have split in their interpretation of the ATCA's applicability to several sources of the "law of nations" (specifically, non-self-executing treaties and unembodied "customary norms" of international law). The majority of courts provide plaintiffs with a substantive right of action for violations of the "law of nations" under the ATCA.7 When faced with disputes arising under the ATCA, domestic tribunals in these jurisdictions attempt to "ascertain customary international law 'by consulting the works of jurists, writing professedly on public law; or by the general usage and practice of nations; or by judicial decisions recognizing and enforcing that law.'"8 In addition to these sources, courts also look to non-self-executing treaties and other international agreements to discern universally accepted norms of international law.9 Once an international law norm has been identified, the majority of courts provide private plaintiffs a right of action for violations of that international norm under the ATCA's "substantive component," using normal standing principles to determine whether a specific plaintiff can bring a civil action for violations of that customary international norm. …