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
-read slide first
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.
.
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.
READ SLIDE THEN**
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
Tel-Orem v. Libyan Arab Republic
The PLO seized a civilian bus, a taxi, a passing car, and later a second civilian bus.
They took the passengers hostage, tortured them, shot them, wounded them and murdered them.
Defendants: Libyan Arab Republic, the Palestine Liberation Organization, the Palestine Information Office, the National Association of Arab Americans, and the Palestine Congress of North America.
Case was dismissed due to lack of subject-matter jurisdiction
Tel-Orem v. Libyan Arab Republic II
Read first before proceeding to judge decisions
According to the complaint’s allegations, the PLO not only recruited and trained the thirteen terrorists but also planned, financed, supplied, and “claimed responsibility” for the operation.
Libya, plaintiffs alleged, trained the PLO instructors who trained the thirteen terrorists, planned, supplied, financed, and “claimed responsibility” for the operation, and gave an official “hero’s welcome” to the ship that carried the terrorists to Israel. As for the PIO and the NAAA, the complaint contains only the general allegations that the PIO is an agent and instrumentality of the PLO and that both the PIO and the NAAA helped plan, finance, outfit, and direct the terrorist operation.
Tel-Oren v. Libyan Arab Republic III
Judges gave 3 separate concurring opinions:
Judge Edwards
The violation of the law of nations is a narrow category reserved to ‘a handful of heinous actions- each of which violates definable, universal and obligatory norms,’ and the actions in this case do not trigger such jurisdiction
Judge Bork
The ATCA merely provides a forum to hear such cases, but does not provide a separate and automatic private cause of action for violations of international law
Judge Robb
An exercise of jurisdiction would improperly involve the judiciary in foreign affairs, an area outside of its expertise and one wrought with the danger of interference with the political branches
Trajano v. Marcos
Archimedes Trajano was captured, tortured, and killed by the Philippine military intelligence, a group that was directly controlled by Marcos-Manotoc, the daughter of former President Marcos
Marcos-Manotoc was fully aware that the military had captured Trajano, and subsequently caused his death
Marcos manatoc argued that Neither the treaties set out in the complaint nor the law of nations provides a private cause of action. Thus, to the extent the court’s decision relies upon either treaties or international law, Marcos-Manotoc argues it to be incorrect.
Trajano v. Marcos II
The district court’s approach conducts itself with the view that the First Congress enacted the predecessor to § 1350 to provide a federal forum for transitory torts (a tort action which follows the tortfeasor wherever he goes)
This approach allows the “law of nations” and “treaty” points of § 1350 to be treated consistently, in that the cause of action comes from municipal tort law and not from the law of nations or treaties of the United States.
The Court concluded that they affirmed the judgment in Trajano’s favor.
“Her suit as an alien against Marcos-Manotoc for having caused the wrongful death of her son, by official torture in violation of a jus cogens norm of international law, properly invokes the subject-matter jurisdiction of the federal courts under § 1350.”
Paul v. Avril
The Plaintiffs, 6 prominent Haitian citizens, seek compensatory and punitive damages against Defendant, Lieutenant General Prosper Avril (Avril), the former head of the Haitian military, for alleged “torture[,] cruel, inhuman or degrading treatment; arbitrary arrest and detention without trial; and other violations of customary international law.”
Avril argued there was no subject matter jurisdiction under the Alien Tort Statute
Defendant reasons that § 1350 is not applicable “to suits between aliens for actions arising outside the United States.”
Paul v. Avril II
1350 says “[t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.”
Therefore, the statute requires that jurisdiction be limited to cases: 1) involving aliens; 2) with a tort only; and 3) committed in violation of the law of nations or a treaty of the United States.
Courts referred to Filartiga and Marcos for jurisprudence
Filartiga: “deliberate torture perpetrated under color of official authority violates universally accepted norms of the international law of human rights, regardless of the nationality of the parties”
Marcos: “nationality is not consequential”
Doe v. Karadzic
Plaintiffs filed their class action complaint, seeking redress on behalf of all women and men who were victims of the following torts inflicted by Bosnian-Serb military forces under the command of the defendant: genocide, war crimes, summary execution, wrongful death, torture, cruel, inhuman or degrading treatment, assault and battery, rape and intentional infliction of emotional harm.
Plaintiffs allege that defendant Karadzic designed, ordered, implemented, and directed a campaign of “ethnic cleansing.” that included, inter alia, massacres, selective murders, pillage, forced detention, and forced evacuations.
Karadzic argued for a motion for dismissal due to lack of subject-matter jurisdiction
Doe v. Karadzic II
District Court’s decision:
This Court finds that the acts alleged in the instant action, while grossly repugnant, cannot be remedied through § 1350. The current Bosnian-Serb warring military faction does not constitute a recognized state any more than did the PLO in Tel-Orem…therefore this Court finds that the members of Karadzic’s faction do not act under the color of any recognized state law”
Second Circuit Court’s decision:
“the ATCA applies to actions by state actors or private individuals that are in violation of customary international law…state action is not necessary for a cognizable violation of the law of nations to exist.”
The court adopted principles from Filartiga, noting that international law is constantly evolving and consulting a similar list of authorities to ascertain the norms of contemporary international law.
As a result, the court relied upon various international conventions, declarations, and resolutions to determine that the acts alleged- genocide, torture, and rape- constituted violations of generally accepted norms of international law
Abebe-Jira v. Negewo
Negewo served as chairman of Higher Zone 9, one of the twenty-five governing units dividing Ethiopia’s capital and created by the Dergue dictatorship. The plaintiffs suffered various atrocities, including torture and beatings during interrogations, at the hands of Higher Zone 9 guards.
The district court found that Negewo personally supervised or participated directly in at least some of the interrogations.
Negewo argues that the district court lacked subject matter jurisdiction because the Alien Tort Claims Act neither provides a private right of action nor incorporates a right of action through reference to a treaty or federal law.
Abebe-Jira v. Negewo II
The court referenced Filartiga for jurisprudence:
The Second Circuit, in dicta, “construes the Alien Tort Statute, not as granting new rights to aliens, but simply as opening the federal courts for adjudication of the rights already recognized by international law.
The Court determined that the ATCA “established a federal forum where courts may fashion domestic common law remedies to give effect to violations of customary international law.
Doe v. Unocal Corp.
15 Burmese residents sued the defendants for human rights violations committed by the Burmese military who were hired to protect the defendants’ pipeline ventures.
Defendants: UnocalCorp. (“Unocal”), Total S.A. (“Total”), the Myanma Oil and Gas Enterprise (“MOGE”), the State Law and Order Restoration Council (“SLORC”), and individuals John Imle, President ofUnocal, and Roger C. Beach Chairman and Chief Executive Officer ofUnocal
Doe v. Unocal Corp II
Read slide first
The Court decided: For the foregoing reasons, Unocal’s motion to dismiss plaintiffs’ complaint is DENIED in part and GRANTED in part. Although SLORC and MOGE are entitled to sovereign immunity pursuant to the FSIA, they are not indispensable parties under Rule 19 of the Federal Rules of Civil Procedure because complete relief may be accorded among the remaining parties in their absence.
First, the court must determine whether the absent party is necessary and cannot be joined. If the court concludes that a party is necessary but cannot be joined, the court must then determine “whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed
Decided that Subject-matter jurisdiction over plaintiffs’ claims against the remaining defendants is available under the Alien Tort Claims Act
Analysis of Filartiga Precedent
Until Filartiga, the only torts granting extraterritorial jurisdiction were limited to piracy, slave trading, and offenses against ambassadors
Set several legal principles:
1) the court held that the law of nations also included the law of human rights, and specifically torture. Due to the court’s inclusion of torture as both a violation of human rights and the law of nations, it legitimized the offense under U.S. law
2) By including torture as violation of the law of nations, the court held that US courts should not interpret the ATS according to its original meaning in 1789, but rather as a statute with evolving and broadening legal significance
3) In deciding that a US district court had jurisdiction over an action between two aliens for a tort committed outside the US, the second court ignored issues of comity, nonintervention, and sovereign immunity, and acknowledged a private right of actions under federal common law for a human rights violation
Analysis of Filartiga Precedent II
Furthermore, the decision to interpret the state as also encompassing subject matter jurisdiction over torts involving foreign actions and a foreign situs (position) reflected a union of:
1) the incorporation of international law into federal common law
2) that enemies of all man kind, or hostis humani generis, who violate international law are individually liable
3) transitory tort theory: the tort act follows the tortfeasor
Patterns of avoidance
Courts are wanting to move against the precedent set by Filartiga, and instead utilize the narrow interpretation of the ATCA
Jurisdiction and cause of action are the biggest constraints
Pattern of Avoidance II
Does the ATCA create a substantive cause of action?
Ready simply, the statute could be interpreted as granting subject matter jurisdiction to the kinds of cases it covers.
However, some cases have interpreted the state more broadly, holding that in addition to conferring jurisdiction, it creates an actionable claim. (the Filartiga case being the first case to do so)
The Filartiga court explains that, in order for the court to obtain jurisdiction to hear the case, it only needs to consider whether international law was violated, not whether international or any other law provides a cause of action. This analysis is supported by the language of the ATS in that it only requires a violation of international law
In the Trajano court, it was not required that the substantive law be a cause of action. Rather, the court held that a simple claim of an international law violation was sufficient enough to implicate substantive federal law.
Conclusion
“The District Courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the US”
The US Courts are avoiding international cases to be brought before the ATCA
Although there are a handful of cases that have succeeded under the ATCA, punitive damages were never collected and defendants were never forced to pay judgment
Conclusion II
Because the Supreme court has not addressed the issue of a private right of actions under the ATCA, whether such a right exists has been left for the Courts to decide. And as a result, many of the courts are shying away from cases brought under the ATS, even when there are blatant violations of international customary law and human rights, as revealed in Tel-Orem, the District Courts decision in Karadzic, and in the Unocal case.
