Lessons from the Alien Tort Statute: Jus Cogens as the Law of Nations

This Note considers a judicial practice that identifies jus cogens as the law of nations by evaluating Alien Tort Statute jurisprudence. While it is generally accepted that a norm belonging to jus cogens is sufficient to fall within the jurisdictional scope of the Alien Tort Statute, this Note examines the stronger claim that jus cogens constitutes an external restriction on the application of the Alien Tort Statute by undertaking a comprehensive analysis of the treatment of jus cogens in Alien Tort Statute jurisprudence. After considering historical, constitutional, and doctrinal implications of such a relation and the absence of clear guidance by the Supreme Court or Congress this Note ultimately endorses a practice that identifies jus cogens as the law of nations. This Note is intended to provide scholars and practitioners with a resource to better understand and apply a coherent strand in an otherwise winding U.S. jurisprudence under the Alien Tort Statute.