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Article
Constitutional Structure as a Limitation on the Scope of the "Law of Nations" in the Alien Tort Claims Act
Cornell International Law Journal (1998)
  • Donald J. Kochan
Abstract
Jurisdiction matters. Outside of the set of jurisdictional constraints, the judiciary is at sea; it poses a threat to the separation of powers and risks becoming a dangerous and domineering branch. Jurisdictional limitations serve a particularly important function when the judiciary is dealing with issues of international law. Since much of international law concerns foreign relations, the province of the executive and, in part, the legislature, the danger that the judiciary will act in a policy-making role or will frustrate the functions of the political branches is especially great. The Framers of the Constitution were particularly concerned with constructing a document in which the government would speak with one voice in its international dealings. Because the judiciary is insulated from political control, court decisions defining international law would not only be improper, but would also frustrate the intent of creating a unitary voice in foreign relations. These questions of proper jurisdictional limits in relation to international law are implicated in the interpretation of the Alien Tort Statute (“ATS”). Jurisdictional questions arise when applying this statute, particularly with reference to the meaning of the "law of nations" and the consequent limits on the judiciary's cognizance over that "law." This Article examines the ATS and suggests that the application of its jurisdictional grant has been unconstitutionally expanded by the courts and currently places a responsibility and power with the judiciary that is both inconsistent with constitutional structure and dangerously unwise.
Keywords
  • alien tort,
  • law of nations,
  • filartiga,
  • international law,
  • article III,
  • customary international law,
  • CIL,
  • jurisdiction,
  • federal courts
Publication Date
1998
Citation Information
Donald J. Kochan. "Constitutional Structure as a Limitation on the Scope of the "Law of Nations" in the Alien Tort Claims Act" Cornell International Law Journal Vol. 31 Iss. 1 (1998)
Available at: http://works.bepress.com/donald_kochan/6/