Customary International Law and International Human Rights Law: A Proposal for the Expansion of the Alien Tort Statute

Abstract

Human rights, by definition, belong to all people equally, inalienably, and universally.' A being is either human or not human, and if it is human, it possesses the same rights as all other humans.2 Furthermore, once a being is human, it cannot cease being human.3 Therefore, human rights cannot be taken away from any person.4 Even so, these rights, despite their universality and inalienability, are sometimes violated by the conduct of governments, corporations, and private individuals. Various international laws and conventions have been developed to address and prevent human rights violations.s Members of the international community-States themselves-must, and do, play an important role in both developing and enforcing international human rights laws.6 In the United States, an important vehicle used to adjudicate international human rights claims is the Alien Tort Statute (ATS), also known as the Alien Tort Claims Act.7 The ATS is a statute that allows US federal courts to hear cases brought by foreign plaintiffs alleging various torts committed outside of the United States.8 Today, most of the cases brought under the statute involve alleged human rights violations.9 This Note begins with a brief history of the Alien Tort Statute and an examination of its purpose, jurisdictional requirements, and scope. The Note then examines the subject of customary international law (CL). The Note explores the ways courts determine whether a practice violates customary international law in the context of ATS cases and the relationship between human rights norms and customary international law.