Moon: The Original Meaning of the Law of Nations

William J. Moon (Yale Univ. - Law) has posted The Original Meaning of the Law of Nations (Virginia Journal of International Law, forthcoming). Here's the abstract:

In the United States, a statute enacted in the late eighteenth century confers on federal courts jurisdiction over civil suits alleging violations of “the law of nations.” Whereas scholars and lower courts alike have assumed that customary international law is the modern equivalent of the law of nations, this Article reveals that this conflation is mistaken. The term “the law of nations,” as commonly used at the time of the statute’s enactment, was considered to include laws deriving from the implicit consent of nations (the modern equivalent of customary international law), but primarily reflected the dominant view at the time that the law of nations was an extension of natural law. The implication is that “the law of nations” encompasses rules that are better conceptualized as peremptory rules of international law (jus cogens), rather than customary international law. This understanding is of critical importance under the Supreme Court’s instruction that modern suits brought pursuant to the statute rest on a norm that is comparable to the features of the eighteenth century paradigms. By developing what I term the “revisionist historical paradigm,” this Article provides a workable framework to evaluate modern Alien Tort Statute litigation that is in line with recent Supreme Court jurisprudence developed under Sosa and Kiobel.