I. INTRODUCTION*
Through no fault of its own, the Supreme Court recently missed a chance to clarify important questions about the role of international law in U.S. courts. In American Isuzu Motors v. Ntsebeza, an appeal of a split decision from the Second Circuit, the Court could have ended the confusion surrounding the scope of “aiding and abetting” liability under the Alien Tort Statute (“ATS”), a law that allows aliens to sue in U.S. federal courts for violations of international law. The Supreme Court’s ruling in the case could have also provided general guidance on how courts should apply customary international law in the United States. Unfortunately, the Court lacked the quorum necessary to hear the case, leaving the issue unresolved.
This question is particularly significant because modern customary international law now touches many areas of policy that were once the sole domain of domestic politics. As we enter a period in which international law plays an increasing role in our domestic legal system, we must ensure that we apply international law in the United States in a way that respects the federal constitutional structure. Incorporation of modern customary international law into the American legal system – through vehicles like the Alien Tort Statute – should occur in a way that meaningfully reflects the functional design of the U.S. Constitution.
This brief article suggests that because customary international law formation has come to resemble, in certain respects, global administrative rulemaking, the application of customary international law in the U.S. raises “non-delegation” concerns about Congress delegating its lawmaking authority away to international bodies. Administrative law doctrine, therefore, may offer a helpful way of thinking about this challenge.
First, this article surveys the recent debate surrounding aiding and abetting liability under the Alien Tort Statute, with a focus on the 2008 case the Supreme Court was unable to hear, American Isuzu Motors v. Ntsebeza (the “Apartheid Case”). This article then examines how the customary international law claims raised in the case reflect a modern theory of customary international law formation that bears certain similarities to domestic administrative lawmaking. Finally, it argues that constitutional concerns about separation of powers suggest that clear legislative authorization should be required before courts can apply a particular area of international law domestically – and that, absent such authorization, liability should not be extended by an aiding and abetting theory.
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* This excerpt does not include citations. To read the entire article, including supporting notes, please download the PDF.
