tag:blogger.com,1999:blog-4763742793669917233.post2416333165691532555..comments2023-11-17T13:40:41.055-06:00Comments on Torts Blog: Supreme Court opens new term with re-hearing on case that could determine the future of the Alien Tort StatuteProfessor Alberto Bernabehttp://www.blogger.com/profile/05249350712732072457noreply@blogger.comBlogger3125tag:blogger.com,1999:blog-4763742793669917233.post-62305961447003552992012-10-02T18:05:04.616-05:002012-10-02T18:05:04.616-05:00I think you're supposition is completely incor...I think you're supposition is completely incorrect. With respect, the analysis under customary international law turns on the sufficiency of a nexus to the host forum. Whether something is actually connected to that forum or not can matter a great deal for the purposes of establishing jurisdiction. That would clearly be satisfied in Sosa given that it was an entire DEA operation to kidnap the plaintiff. I'm well aware of sovereign immunity, but that is an affirmative defense and irrelevant for the purposes of gauging whether there is an actual nexus to the host country.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-4763742793669917233.post-67629590456705293772012-10-02T17:26:10.294-05:002012-10-02T17:26:10.294-05:00Thanks for the comment. I understand what you are ...Thanks for the comment. I understand what you are trying to say, but remember that the ATS can't be used to sue the United States, so whether what happened in a case "might be something that the US might be responsble for" is not really part of the analysis. As in all ATS cases, the issue was whether (because of the ATS) US courts have jurisdiction over a claim by a foreigner against a foreigner for a tort that takes place in foreign soil. Whether the courts have jurisdiction in a case like Sosa is not based on whether the conduct is something for which the US might be responsible.<br /><br />It seems to me that if the court now decides Kiobel in favor of the defendants, a case like Sosa could not be brought in US courts.<br /><br />Professor Alberto Bernabehttps://www.blogger.com/profile/05249350712732072457noreply@blogger.comtag:blogger.com,1999:blog-4763742793669917233.post-69299224574286205422012-10-02T09:20:47.559-05:002012-10-02T09:20:47.559-05:00Prof. Bernabe,
Although it might be true that Sos...Prof. Bernabe,<br /><br />Although it might be true that Sosa was "extraterritorial" given that it occurred in Mexico, there was certainly a direct nexus to the United States in that case. When the DEA hatches a plan and pays Mexicans to go along with its own agents to kidnap a Mexican suspect, that's a pretty clear connection to something that the United States might be thought to be responsible for. <br /><br />The same cannot be said when a Dutch company works with a Nigerian dictatorship and mistreat Nigerian citizens. That case, and other "foreign-cubed" cases with no connection or nexus to the United States, are another matter.Anonymousnoreply@blogger.com