United States Supreme Court Gets its Chance

Abdi Wali Dire, left, arrives at the the federal courthouse in Norfolk, Va. on Tuesday, Nov. 9, 2010

As I previously mentioned here, the US Supreme Court may soon take up the issue of piracy in US courts. This could have importance not only for the piracy prosecutions taking place in the US but for the development of customary international law applicable in other municipal (i.e. domestic) jurisdictions as the US piracy statute directly incorporates customary international law.

The petitions for writs of certiorari in U.S. v. Dire and U.S. v. Said  (available here and here) raise compelling arguments that interplay with Alien Tort Statute litigation. They ask whether piracy as defined by the law of nations incorporates modern developments in international law. The answer will hinge on the limits of a federal court’s authority to ascertain a narrow set of violations of international law construed as federal common law.

The place of federal common law in US courts has been a matter of debate amongst the Justices of the US Supreme Court in two recent cases addressing the Alien Tort Statute which, like the US piracy statute, is defined by reference to “the law of nations.” In Sosa v. Alvarez-Machain, the majority opinion (written by Justice Souter) held:

[T]his Court has thought it was in order to create federal common law rules in interstitial areas of particular federal interest.[…] [There remain] limited enclaves in which federal courts may derive some substantive law in a common law way. For two centuries we have affirmed that the domestic law of the United States recognizes the law of nations. […] It would take some explaining to say now that federal courts must avert their gaze entirely from any international norm intended to protect individuals.

This led the US Supreme Court to determine that the Alien Tort Statute claims “must be gauged against the current state of international law, looking to those sources we have long, albeit cautiously, recognized.” These include treaties, custom, and the works of eminent jurists.

Justice Scalia was even more categorical in a partially concurring opinion that there exists only “a specifically federal common law (in the sense of judicially pronounced law) for a few and restricted ”areas in which a federal rule of decision is necessary to protect uniquely federal interests, and those in which Congress has given the courts the power to develop substantive law. […] [But] [C]ourts cannot possibly be thought to have been given, and should not be thought to possess, federal common-law-making powers with regard to the creation of private federal causes of action for violations of customary international law.”

“[T]he question to me is who are today’s pirates. And if Hitler isn’t a pirate, who is? And if, in fact, an equivalent torturer or dictator who wants to destroy an entire race in his own country is not the equivalent of today’s pirate, who is?” So asked Justice Breyer during the Kiobel v. Royal Dutch Shell oral argument on 1 October 2012

The Office of the Federal Public Defender takes up the federal common law debate in its petition, urging that although modern developments in international law might inform the existence of a civil cause of action, the same cannot inform the definition of a crime. It asserts,

Federal criminal law, unlike tort law, most decidedly is not an area in which judges are permitted to derive “substantive law in a common law way.” Sosa, 542 U.S. at 729. The elements of a federal criminal offense, in particular, must be defined by Congress alone. See, e.g., Liparota, 471 U.S. at 424. Elements of federal criminal offenses are not created by courts engaged in the uncertain enterprise of discerning the state of customary international law, unguided by an authority of last (or even first) resort.

Herein lies the crux of the issue. Must the law of nations as used as a definitional base in US statutes have a fixed meaning pertaining to crimes, when such is not required for civil causes of action? Given the central role piracy played in the recent oral argument in Kiobel v. Royal Dutch Shell, the Court may decide now is an opportune time to take up communis hostis omnium.

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