U.s. V. Alvarez-machain: treaty doesn't explicitly mention kidnapping, so we should use CIL. Court is welcoming for the use of CIL in certain circumstances. Specifically in the context of the Alien Tort Statute (ATS)?
U.s. V. Alvarez-machain: treaty doesn't explicitly mention kidnapping, so we should use CIL. Court is welcoming for the use of CIL in certain circumstances. Specifically in the context of the Alien Tort Statute (ATS)?
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U.s. V. Alvarez-machain: treaty doesn't explicitly mention kidnapping, so we should use CIL. Court is welcoming for the use of CIL in certain circumstances. Specifically in the context of the Alien Tort Statute (ATS)?
Copyright:
Attribution Non-Commercial (BY-NC)
Available Formats
Download as TXT, PDF, TXT or read online from Scribd
Facts/Background: see United States v. Alvarez-Machain
Notes
• There is CIL against this kind of kidnapping.
○ Alvarez argues that b/c treaty doesn’t explicitly mention about kidnapping, etc., so we should use CIL as gap-filler. ○ Since it's CIL, it doesn’t need to be explicitly mentioned, it is understood you can't do this. ○ CIL would color the interpretation of the extradition treaty, and that's how it relates to this treaty • Here, Alvarez brings a civil suit • Here the court is sill welcoming for the use of CIL in certain circumstances • When can we, and cannot, use CIL? Specifically in the context of the Alien Tort Statute (ATS)? ○ ATS also known as ATCA (Alien Tort Claims Act) • Counsel for Dr Alvarez: ○ The statute says "the courts shall gave 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 US" ○ In this case, kidnapping violates the law of nations (like piracy or torture in filartiga) • Counsel for Mr Sosa ○ Statute only confers jurisdiction; no private right of action in statute, and not intended by founders § Founders intended jurisdiction only on torts committed by foreigners in federal court § Doesn’t lay out substantive grounds for a tort, only procedural § Congress would have to enact additional legislation on what substantive claims could be tied into ATS • Majority doesn’t agree totally with either Alvarez or Sosa ○ They take a middle course ○ Reject Sosa's argument that its purely procedural § They look at legislative history, and its pretty clear drafters intended it to have immediate substantive effect • So what violations of CIL should be covered by ATS? ○ Only covers torts related to law of nations in the 1700s (only what drafters intended) ○ "Law of nations" is a living term (Living term - where the way we look at terms, evolves over time) § Alvarez argues this. § Court doesn’t totally agree • ATS not limited to only piracy, torture, etc., but they will open the door to new claims very narrowly. ○ TEST: Pg. 253 IV - we think courts should require any claim based on the present-day law of nations rest on a norm of international character accepted by the civilized world and defined with a specificity comparable to the features of the 18th century. ○ Does Alvarez's abduction satisfy this test? - No. § There has to be a specificity. Abduction doesn’t have that specificity. § Court looks at treatises, what other countries are doing, etc. Want to see if norm is specific enough. It's not. • Pg 261, note 4. Praises Judge in this case.
• First case - court wont take into consideration CIL, but in 2nd case, court will take Cil into consideration b/c ATS specifically says to look at it, but will only look at it very narrowly