Implementing Sosa V. Alvarez-Machain: What Piracy Teaches About the Limits of the Alien Tort Statute

The Supreme Court partially settled a long-standing dispute about the purpose and scope of the Alien Tort Statute (ATS) when it decided Sosa v. Alvarez-Machain at the end of its 2004 term - but it raised an equally important set of questions, ones that bear greatly on the future of ATS litigation and the foreign relations of the United States. Sosa held that the ATS is solely a jurisdictional statute that does not provide a general cause of action for violations of international law. However, backtracking on its "only jurisdictional" interpretation, it held out the possibility that the statute might allow judicial recognition of a narrow subset of modern customary international law (CIL) causes of action. That subset would be those substantially analogous to those for which the First Congress specifically intended to ATS to provide jurisdiction: offenses against ambassadors, violations of safe passage, and piracy. However, the Court did not set out a clear method for determining whether a CIL norm sufficiently resembles the historic offenses, leaving the "ultimate criteria" for future resolution. This Article fleshes out the historical test contemplated by Sosa by identifying the defining characteristics of the three historic offenses, which are now the characteristics that a CIL norm must posses to be actionable under the ATS. Piracy is jurisdictionally and conceptually most closely related to the modern human rights offenses that have been litigated under the ATS thus far. It was the only universal jurisdiction offense known to common law and the law of nations, and thus the Article pays particular attention to the characteristics that gave it this unique status. A combination of six characteristics allowed piracy to become a universally cognizable offense against the law of nations by minimizing the problems and dangers that would otherwise accompany universal jurisdiction. First, piracy was a crime in the municipal law of all nations; international law merely reflected an already ubiquitous condemnation of the conduct. Second, piracy had a narrow and universally-agreed on definition; the conduct it proscribed was well understood, thus preventing conflicts between states about the propriety of universal jurisdiction. Third, all nations made piracy punishable by death. Thus universal jurisdiction would not lead to forum shopping or disputes among nations as to what punishment should be inflicted. Fourth, and perhaps most importantly, pirates were private actors who had refused the protection of their home states by failing to obtain a letter of marque. They could expect little succor from their home state, since they had turned their back on it, and thus a prosecuting nation would not expect the home state to take offense. Fifth, piracy occurred on the high seas. While this did not make traditional jurisdictional limitations moot, it did make conventional enforcement difficult, and thus universal jurisdiction might seem an attractive auxiliary to domestic prosecution. Finally, pirates indiscriminately attacked the ships of all nations, as they were not constrained by ties of national loyalty or the limitations contained in a letter of marque. Thus many maritime states had a particularly strong interest in punishing pirates because their ships could fall prey to them, and all states would be economically harmed by disruptions of international commerce. Having thus articulated the specifics of Sosa's historical test, the Article administers it to modern human rights offenses, and finds that they do not satisfy the test. New CIL norms do not posses one or more of the important properties that made piracy safe for UJ and enforceable by common law. Thus providing redress for modern CIL offenses would entail profound dangers not contemplated by the First Congress they enacted the ATS with the limited purpose of allowing suits dealing with piracy, ambassadors, and safe conducts. Comparing piracy to modern international law norms reveals that new causes of action under the ATS cannot be created without abandoning the fidelity to the historical paradigms mandated by the Court. The Court in Sosa may as well have shut the door to new causes altogether, for the door that it leaves "ajar subject to vigilant doorkeeping" has nothing behind it.