Splitting the Baby: An Analysis of the Supreme Court's Take on Customary International Law Under the Alien Tort Statute in Sosa v. Alvarez-Machain

I. INTRODUCTION In 2004, the U.S. Supreme Court did something Solomon would never have done-the justices split the proverbial baby.1 In June 2004, the Court decided Sosa v. Alvarez-Machain,2 a case initiated by a Mexican national in a federal district court, partly based on claims allegedly arising under the Alien Tort Statute of 1789 (ATS). The complaints, based on the ATS's jurisdictional language,3 forced the Court to decide whether customary international law (CIL)4 could provide the basis for a private action brought by an alien under the ATS. Just as the baby in Solomon's court had only one true mother, the answer to whether CIL, within the framework of the ATS, provides a cause of action in federal court should have only one answer, "Yes" or "No." While the Court did not say "Yes," it also did not say "No." Although history, the Supreme Court's own decisions, and U.S. tradition all pointed to "No," the Court split the baby and said, "In this instance 'No,' but actually 'Yes.'" As any parent can tell you, a split baby doesn't last long. The facts giving rise to the case are remarkable and reflect poorly upon the United States-a fact that may lend emotional, if not logical, credence to why the Court was willing to leave open the possibility of CIL applying to future cases.5 In short, the case arose after U.S. Drug Enforcement Administration (DEA) agents, acting without authority, abducted Mexican national Humberto AlvarezMachain (Alvarez) for his alleged involvement in the torture and eventual death of a DEA agent.6 After returning to Mexico, Alvarez sought relief in U.S. federal courts by invoking the ATS. The issues that survived by the time the case wound its way to the Supreme Court go to the heart of United States sovereignty. Alvarez forced the Court to confront at least three fundamental questions regarding the ATS's stance on CIL: (1) What role, if any, does CIL play in private actions under the ATS in U.S. courts? (2) Does the language of the ATS granting 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"7 incorporate CIL and create a fount of cognizable private actions? (3) May federal judges apply international standards that have not been adopted, either expressly or implicitly, by the United States? This Note argues there are at least four reasons the Court should have unequivocally held in Sosa v. Alva-rez-Macha-in that CIL cannot be used to create causes of action under the ATS. First, the Treaty and Offenses Clauses of the U.S. Constitution authorize only the President and Congress to recognize and incorporate CIL into U.S. law. second, the ATS on its own terms merely grants jurisdiction and historically has not been interpreted to create private causes of action. Third, using the ATS to create such causes of action would violate the rule that there is no general common law as established by Erie Railroad Co. v. Tompkins,8 Fourth, CIL may be arbitrarily and selectively used by judges wishing to advance pet causes. To make this thesis as clear as possible, this Note is divided into the following parts: Part II briefly describes CIL, the ATS, the Treaty and Offenses Clauses, and Erie; Part III recounts the facts of the Sosa case and the Court's justification for allowing CIL to remain a viable source of causes of action; Part IV analyzes Sosa's take on CIL in light of the Treaty and Offenses Clauses, the historical understanding of the ATS, and Erie; and Part V addresses Sosa's potential to alter the United States' fundamental constitutional sovereignty. II. BACKGROUND OF CIL, THE TREATY AND OFFENSES CLAUSES, THE ATS, AND ERIE V. TOMPKINS Although the underlying thesis of this Note is straightforwardthat contrary to what the Sosa court allowed, CIL should not become a fount of cognizable private actions under the ATS-the four arguments that support it rely on the surprising interactions of CIL, the Treaty and Offenses Clauses, the ATS, and Erie v. …