ATCA Flashcards
Introduction
Litigation in United States Courts to address human rights abuses that occur abroad has increased dramatically within the last quarter century
In addition, there has developed a concentrated strategy to limit access to US courts for purposes of addressing human rights violations committed abroad.
The ATCA is the most utilized legislative tool for reaching human rights abuses
However it’s legislative history still remains unclear
Introduction II
Many judges, scholars, and politicians have urged for the ATS to be understood narrowly.
They argue that the act was created solely for the purpose of addressing piracy or violations of diplomatic immunity and does not confer a private right of action. Unfortunately, there is little evidence that supports either a narrow or a broad interpretation of the statute.
Introduction III
The Statute was originally an unsuccessful source of relief as it was only invoked twice in its first 150 years.
However, in 1980 the ATCA had been brought to life again as a tool for human rights litigation with the case of Filartiga v. Pena-Irala.
The court had decided that the ATCA authorized liability for torture committed under color of state authority.
The ATCA: Origin and Definition
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By enacting the ATCA, Congress intended to provide extraterritorial jurisdiction over the crimes of piracy, slave trading, violations of safe conduct, and the kidnapping of ambassadors.
Since states universally accepted piracy and slave trading as lawless acts potentially affecting all states’ citizens, states viewed these offenders as hostis humani generis, or “enemies of all mankind,” and thus agreed within customary law to subject them to universal jurisdiction.
The ATCA: Origin and Definition II
From what we do know from the language of the act is that a lawsuit under the ATS requires three things:
1) a tort 2) an alien plaintiff 3) an action committed in violation of either the law of nations or a treaty of the U.S.
Theories of Purpose: Denial of Justice
Essentially every scholar, judge, and commentator on the Statute has tied it to the Framers’ desire to avoid entangling the nation in conflicts with foreign states arising from U.S. mistreatment of foreign citizens.
One potential cause for offense was the denial of justice to an alien party to a suit in the US.
Theories of Purpose II: Denial of Justice
The Federalists thought this danger to be particularly great in state courts, because state judges were less likely to be sensitive to national concerns than their federal counterparts.
Basically, the denial of justice theory argues that the ATS minimized this eventuality by providing at least some aliens with access to federal court.
Theories of Purpose: Ambassador Protection Plan
The ATS was also theorized to be a form of national insurance designed to protect the rights of foreign ambassadors
According to Blackstone’s list of a specialized category of offenses in which international law directly regulated individual conduct, “a tort …in violation of the law of nations” refers to:
1) violation of safe conducts or passports
2) infringement on the rights of ambassadors
3) piracy
Theories of Purpose: Ambassador Protection Plan II
One of the deciding judges in the Tel-Oren Case, Judge Bork, relies on this history as an argument for limiting the ATCA to its 18th century understanding, allowing suit only for Blackstone’s 3 offenses, with particular emphasis on the need to protect ambassadors.
Professor Castro of Texas Tech agrees with this theory of Ambassador protection, however, he also argues that “section 1350 should be construed as liberally as possible,” basing his assumption on the apparent breadth of the language of the statute. This is what he concludes:
What is meant by Law of Nations
This concept is non-existent in the US
Theorized that the idea of international law may have originated with the Roman civilization with the use of jus gentium, or “law of nations”
It referred to the law that the Romans applied in cases involving foreigners when the law of the foreigners’ own country was unknown
In 1625, Dutch jurist Hugo Grotius argued that the Law of Nations also applied to the emerging countries of Europe in their dealings with one another
In 1789, English philosopher Jeremy Bentham renamed this notion “international law,” and now today the terms “law of nations” and international law” are used interchangeably.
Approaches to Ascertaining the Law of Nations: The Nereide
At issue in The Nereide was whether a Spanish shipper’s goods carried aboard a British merchant vessel captured by American privateers could be condemned as prize.
The shipper argued that, because Spain was a neutral party in the fighting between the US and Great Britain and because the law of nations protected the property of neutrals, his property could not be taken as prize.
Thomas Smith, having participated in the piracy of the Spanish vessel, was prosecuted under the 1819 Act of Congress: That if any person or persons whatsoever, shall,on the high seas, commit the crime of piracy, as defined by the law of nations…every such offender or offenders shall, upon conviction there of be punished with death”
Approaches to Ascertaining the Law of Nations II: The Nereide
Justice Joseph Story, writing for the Supreme Court, found that Smith’s acts constituted piracy “ as defined by the law of nations”
Story found that Congress could allow the judiciary to determine the meaning of statutory terms by reference to the “law of nations” and set forth a method for ascertaining the “law of nations.”
Courts may ascertain the law of nations by consulting the works of jurists, writings on public law, by the general usage and practice of nations, or by judicial decisions recognizing and enforcing that law.
By examining a variety of sources in each category, Story concluded that Smith’s actions fell within those universally treated as piracy in violation of the law of nations.
Approaches to Ascertaining the Law of Nations III :Paquete Habana
A similar approach to ascertain the law of nations was adopted in Paquete Habana.
The Paquete Habana was a fishing vessel sailing under the Spanish flag captured off the coast of Cuba by a U.S. gunboat.
The vessel and its cargo were condemned as prizes of war and later sold at an auction. The owner and the master, on behalf of the other crew members who were entitled to shares of the Habana’s catch, brought a suit challenging the seizure as unlawful.
Paquete Habana II
In order to determine whether fishing vessels were legally subject to capture during the war with Spain, the Supreme Court looked to the law of nations and found that coast fishing vessels have been recognized as exempt, with their cargoes and crews, from capture as prize of war.
This is what they concluded:
Paquete Habana III
This statement presents 3 important rules:
1) it reaffirms the proposition that international law is part of the law of the United States, or atleast its admiralty law (body of law governing maritime offenses)
2) it holds that the court may apply an international law, as controlling authority, even when the law has not previously been recognized in a US treaty, legislative act, executive act, or prior court decision.
3) it ratifies the Nereide method of consulting the works of jurists or commentators as a means for ascertaining international law.
Paquete Habana IV
This case is particularly significant because the court used international law to restrict state action by the United States.
Although Paquete Habana was brought under admiralty law and not under section 1350, it is relevant to the ATS because the court granted relief not to a state but to private plaintiffs for the violation of international customary law
As a result, the Paquete Habana is frequently referred to in the context of the ATS because it provides an exception to the usual standard of non-interference in the regulation of foreign states’ affairs
Foreign Sovereign Immunities Act
A major limitation on ATS jurisdiction is that the statute does not confer subject-matter jurisdiction over foreign sovereigns.
FSIA is sole basis for obtaining jurisdiction of foreign states. It reads as follows:
Sovereign immunity shields a state from liability altogether, and once successfully invoked, prevents the suit from proceeding
One of the primary objectives was to relieve the Department of State from its customary responsibility to determine claims of immunity.
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Foreign Sovereign Immunities Act II
Exceptions to the general immunity:
1) the foreign state has waived its immunity
2) the suit is based upon a commercial activity carried on by the foreign state either in the US or causing a direct effect in the US
3) rights in certain property are taken in violation of international law are at issue
4) rights in certain property in the US are in issue
5) money damages are sought against a foreign state for personal injury or death, or damage to property, occurring in the US and cause by the tortious action or omission of that foreign state or of any official or employee of that foreign state while acting within the scope of his employment.
Foreign Sovereign Immunities Act: The case of Amerada Hess v. Argentine Republic
Respondent United Carriers, Inc., a Liberian corporation, chartered one of its oil tankers, the Hercules, to respondent Amerada Hess Shipping Corporation, also a Liberian corporation.
The contract was executed in New York City. Amerada Hess used the Hercules to transport crude oil from the southern terminus of the Trans-Alaska Pipeline in Valdez, Alaska, around Cape Horn in South America, to the Hess refinery in the United States Virgin Islands.
At that time, Great Britain and petitioner Argentine Republic were at war over islands — the Falkland Islands to the British, and the Islas Malvinas to the Argentineans — in the South Atlantic off the Argentine coast.
Respondents alleged that petitioner’s attack on the neutral Hercules violated international law.
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Legal Precedence of Amerada Hess
Amerada Hess effectively eliminated foreign sovereigns from the pool of possible defendants in an ATS action.
After Amerada Hess, federal courts could only obtain subject matter jurisdiction over a foreign sovereign through the ATS in 2 situations:
1) where the FSIA does not apply, i.e. where the defendant cannot be considered a foreign sovereign
2) where the FSIA does not afford immunity to the foreign sovereign because the actions fall within one of the FSIA’s exceptions
Legal Precedence of Amerada Hess II
Section 1603 of the FSIA provides that a defendant must fall within the following characterization to be considered an “agency or instrumentality of a foreign state:” an entity which is…
1) A separate legal person, corporate or otherwise
2) An organ of a foreign state or political subdivision thereof, or a majority of whose shares or other ownership interest is owned by a foreign state or political subdivision thereof
3) Neither a citizen of a State of the US…nor created under the laws of any third country
Filartiga v. Pena Irala
Plaintiffs allege that Pena-Irala, then inspector General of police in Paraguay, kidnapped, tortured, and killed Joelito Filartiga, son of Dr. Joel Filartiga and brother to Dolly Filartiga, in retaliation for his father’s political activities and opposition to the Paraguayan government.
Afterwards, Dolly Filartiga moved to Washington D.C. where she brought suit against Pena-Irala while he was in the US on a visitor’s visa.
Filartiga v. Pena Irala: Legal precedence
READ FIRST BULLET
Court established 4 distinct features of the law of nations under the ATS: the law of nations…
1) is part of the federal common law, and thus cases arising under the law of nations also arise under the laws of the US as required by Article III of the Constitution
2) “may be ascertained by consulting the works of jurists, writings on public law, or by the general usage and practice of nations; or by judicial decisions recognizing and enforcing that law
3) a norm that must “command the general assent of civilized nations” to be part of the law of nations and “it is only where the nations of the world have demonstrated that a wrong is of mutual, and not merely several, concerns, by means of express international accords, that a wrong generally recognized becomes an international law violation within the meaning of the statute
4) must be interpreted not as it was in 1789, but as it has evolved and exists among the nations of the world today
Filartiga v. Pena Irala: Transitory Tort Theory
Secondly, the court ruled that, although all relevant acts occurred in Paraguay and all the parties were Paraguayan citizens, U.S. federal courts still have jurisdiction under the ATS
It also established justification through the theory of transitory torts.
This theory, established by English common law, provides that liability for certain tortious acts follow the tortfeasor, such that he could be subject to suit for that act in any forum.
The court held that the claims for torture and wrongful death were transitory torts, and thus, adjudicable in the US regardless of the place of the occurrence
