The Alien Tort Statute Flashcards
Filartiga v. Peña-Irala, 630 F.2d 876 (2d Cir. 1980) (Alien Tort Statute, foreign nationals suing other foreign nationals for a tort in US courts)
Facts: Joel and Dolly Filartiga (plaintiffs), Paraguayan nationals, filed a wrongful-death action in federal district court against Americo Peña-Irala (defendant). The action alleged that in retaliation for Joel Filartiga’s opposition to the Paraguayan government, Peña-Irala, the Inspector General of the Police in Asunción, Paraguay, kidnapped Filartiga’s son and tortured him to death. Although the underlying events occurred in Paraguay, Peña-Irala was served with process while in the United States. Peña-Irala alleged that the district court lacked subject matter jurisdiction and moved to dismiss the Filartigas’ action. The district court granted the dismissal and the Filartigas appealed to the United States Court of Appeals for the Second Circuit.
Issue: Did the Alien Tort Statute grant the District Court subject matter jurisdiction to hear a tort case between two foreign nationals?
Holding/Rule: Yes. Under the Alien Tort Statute, codified at 28 U.S.C. § 1350, federal district courts have original jurisdiction over civil actions filed by an alien, or noncitizen, to redress a tort committed in violation of the law of nations or a treaty.
Reasoning:
I. Conduct only violates the law of nations if there is international consensus that such conduct should be prohibited.
II. To determine the law of nations, courts consider the customs and practices of nations, judicial decisions acknowledging and enforcing the law, and the writings of jurists and commentators with expertise in the field. The law of nations is significant for determining whether a federal district court has jurisdiction over certain tort suits based on conduct occurring outside of the United States.
III. There is universal consensus that torture constitutes prohibited conduct. Two United Nations declarations, the Universal Declaration of Human Rights and the Declaration on the Protection of All Persons from Being Subjected to Torture, expressly recognize that all people have a fundamental right not to be subjected to torture. Other international agreements, such as the American Convention on Human Rights, also renounce torture. Additionally, most nations have domestic laws prohibiting torture, many addressing the issue either expressly or implicitly in their constitutions.
IV. Torture therefore violates the law of nations, and the Alien Tort Statute grants federal district courts jurisdiction over suits where an alien serves a torturer with process while the torturer is in the United States. Here, Joel and Dolly Filartiga, both aliens, filed suit in federal district court against Peña-Irala, alleging that Peña-Irala tortured Joel Filartiga’s son to death. Additionally, Peña-Irala was served while he was in the United States.
Alien Tort Statute (28 U.S.C. § 1350) Background
I. The Alien Tort Statute is an old statute (first introduced by the Judiciary Act of 1789) granting US district courts original jurisdiction on any civil action by an alien for torts committed in violation of customary international law, or a treaty of the United States.
II. In essence, it allows non-American citizens to utilize American courts to settle tort disputes that have occurred elsewhere, and are in violation of international laws, or treaties to which the United States is a party.
III. The ATS was barely used since its adoption in 1789, but came into more common use with the 2nd Circuit’s 1980 Filartiga v. Peña-Irala case.
Can U.S. domestic law, in particular the Alien Tort Statute, be invoked to file claims alleging tortious violations of the law of nations?
Domestic law such as the Alien Tort Statute can only be invoked when the tort in question is based on a universally-recognized, specifically-defined international law that is capable of imposing obligations on international parties. This is because the Alien Tort Statute is a jurisdiction-granting statute, and not a cause of action by itself. See Sosa v. Alvarez-Machain, 542 U.S. 692 (2004).
Sosa v. Alvarez-Machain, 542 U.S. 692 (2004) (Alien Tort Statute, actions authorized under the statute)
Facts: Alvarez-Machain (Alvarez) (plaintiff) alleged he was wrongfully captured and arbitrarily detained in Mexico by Sosa (defendant), a bounty hunter operating as a United States agent. The operation to capture and detain Alvarez was planned and directed by Drug Enforcement Administration (DEA) agents in the United States. After Alvarez was captured in Mexico, he was brought to the United States to be tried for the murder of a DEA agent. After Alvarez’s acquittal, he sued the United States for false arrest under the Federal Tort Claims Act (FTCA), which waives the government’s sovereign immunity in some circumstances, and allows the government to be sued in a tort action. Alvarez also brought suit against Sosa under the Alien Tort Statute (ATS), which gives federal district courts original jurisdiction over an alien’s civil action for a tort committed in violation of the law of nations or a U.S. treaty. Alvarez alleged that Sosa violated the United Nations Universal Declaration of Human Rights (Declaration), the International Covenant on Civil and Political Rights (Covenant), and customary international law by arbitrarily detaining him. The district court awarded Alvarez summary judgment and damages on his ATS claim against Sosa and dismissed Alvarez’s FTCA claim against the United States. The appellate court affirmed the judgment on Alvarez’s ATS claim and reversed the dismissal of Alvarez’s FTCA claim. The United States Supreme Court granted certiorari.
Issue: Can a foreign national sue for kidnapping under the FTCA and ATS?
Holding/Rule: No. A claim under the Alien Tort Statute must be based on a universally-recognized, specifically-defined rule of international law that is capable of imposing obligations on international parties.
Reasoning:
I. The ATS is a jurisdictional statute, and it does not create a cause of action for violations of international law. For a claim to be recognized by a federal court, the international-law violation must be of the kind accepted and defined as specifically as those in the eighteenth century when the ATS was enacted, e.g., ambassadors’ rights and piracy.
II. Alvarez’s case against Sosa is based on his argument that under the definition provided in the Declaration of Human Rights and the International Covenant on Civil and Political Rights, he was arbitrarily detained by Sosa. However, the Declaration is not a binding treaty or other international agreement and does not impose obligations as a matter of international law. Rather, it has been recognized only as a statement of principles. The Covenant is binding, but the United States ratified it with the understanding that it did not create obligations that are enforceable in federal court. Thus, these provisions cannot form the basis for Alvarez’s claim.
III. There is no support for Alvarez’s argument that that there is a binding customary international law prohibiting arbitrary arrest, and this does not rise to the level of a specifically defined, binding international norm that may be actionable under the ATS. Furthermore, a plaintiff may not sue the United States under the FTCA for tortious conduct allegedly planned and directed in the United States but carried out in a foreign country. The FTCA contains an exception to the waiver of the United States’ sovereign immunity for claims “arising in” a foreign country.
IV. Even if planning and direction of an action in the United States was a proximate cause of the action in the foreign country, the actions in the foreign country are also a proximate cause of the claimed injury. Furthermore, at the time the foreign-country exception was written, the phrase “arising in” likely meant the place where the injury occurred. Thus, regardless of where the tortious act or omission occurred, the FTCA’s foreign-country exception bars all claims based on an injury suffered in a foreign country.
Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108 (2013) (Alien Tort Statute, limiting its reach to torts committed within the territory of the United States, or the high seas).
Facts: Kiobel and other Nigerian nationals residing in the United States (plaintiffs) filed suit in the United States District Court for the Southern District of New York against Dutch, British, and Nigerian petroleum corporations (oil companies) (defendants). The complaint alleged violations of the Alien Tort Statute, 28 U.S.C. § 1350, in the early 1990s for aiding and abetting the Nigerian government in atrocities including rape, murder, and property destruction against citizens protesting oil exploration in their location. The plaintiffs moved to the United States after the atrocities, were granted political asylum, and became legal residents. The Alien Tort Statute gives federal district courts original jurisdiction over any civil action by an alien for a tort committed in violation of the law of nations. The district court granted in part and denied in part the oil companies’ motion to dismiss and certified its order for interlocutory appeal. The United States Court of Appeals for the Second Circuit dismissed the entire complaint, holding that the law of nations does not apply to corporations. The United States Supreme Court granted certiorari on that question and on whether federal courts have jurisdiction over alleged violations of the law of nations occurring within a foreign territory.
Issue: Do US federal courts have jurisdiction over alleged violations of the law of nations occurring within a foreign sovereign territory?
Holding/Rule: No. Federal courts in the United States may not recognize a cause of action under the Alien Tort Statute for violations of the law of nations occurring within the territory of a sovereign other than the United States.
Reasoning:
I. Under the presumption against extraterritorial application, United States law does not apply extraterritorially, unless the law itself clearly provides for such application.
II. The presumption against extraterritorial application is based on the principle that United States law governs domestically but does not rule the world. The presumption applies to claims under the Alien Tort Statute in particular, due to the foreign-policy concerns of trying to enforce international law over a foreign territory. To rebut the presumption, there must be a clear indication that the Alien Tort Statute is meant to apply to actions abroad.
III. The Alien Tort Statute states that federal district courts in the United States “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,” but the statute makes no mention of extraterritorial application.
IV. The Alien Tort Statute historically applies to three alleged law-of-nations offenses: violations of safe conducts, violations against the rights of ambassadors, and piracy. The first two instances have never been applied to violations abroad, and even though piracy occurs on the high seas and outside of U.S. territories, the acts do not occur within the territory of another sovereign and do not invoke the same level of foreign-policy concerns.
V. In this case, the atrocities at issue occurred in Nigeria, completely outside of the borders of the United States. The plaintiffs’ claims thus cannot be maintained in a United States court, even though the plaintiffs are legal United States residents.
Jesner v. Arab Bank, PLC, 138 S. Ct. 1386 (2018) (Alien Tort Statute, limiting the statute’s reach to individuals only, and not corporations).
Facts: In 2003, Joseph Jesner and others (plaintiffs) who either suffered injuries or lost family members in terrorist attacks abroad sued a multinational Jordanian bank for allegedly enabling the attacks by laundering terrorists’ money. Arab Bank, PLC’s (defendant) New York branch cleared transactions in United States dollars that allegedly benefitted terrorist groups. The lawsuit claimed that those acts qualified as a tort that violates the law of nations under the Alien Tort Statute (ATS). The trial court dismissed on the ground that the ATS allows causes of action against individuals only, not corporations. Due to a split in controlling circuit court precedent, the United States Supreme Court granted certiorari to decide the question some 13 years after the lawsuit’s initiation. Meanwhile, the pending lawsuit caused significant tension in diplomatic relations between the U.S. and Jordan.
Issue: Does the Alien Tort Statute grant jurisdiction to hear tort cases against corporations?
Holding/Rule: No. The Alien Tort Statute allows causes of action against individuals only, not corporations.
Reasoning:
I. Only the legislature, not the courts, has the power to recognize new private causes of action. Separation of powers precludes it, particularly in areas of law involving foreign policy concerns. The legislature has the capacity and responsibility for making those kinds of decisions. Courts are not well-suited to decide the foreign policy issues implicated in imposing tort liability against a multinational corporation.
II. Congress intended the Alien Tort Statute to ensure that foreign plaintiffs have a remedy available for violations of international law, instead of pursuing a remedy against the U.S. itself. Neither the language of the statute nor the decisions interpreting it support a cause of action against corporate entities here. Pursuing a remedy for U.S. citizens against a foreign bank is the opposite of the statute’s legislative intent.
III. The remote connection between the New York banking transactions and terrorist attacks shows the danger of extending the Alien Tort Statute to multinational corporations because the lawsuit has disrupted diplomatic relations with Jordan, a critical U.S. ally in a sensitive region, for the last 13 years. This case shows that imposing liability against foreign corporate defendants creates unique problems that courts are not suited to adjudicate.
Alien Tort Statute (28 U.S.C. § 1350) Current Extent and Limits
I. Under Sosa v. Alvarez-Machain, 542 U.S. 692 (2004), a claim under the Alien Tort Statute must be based on a universally-recognized, specifically-defined rule of international law that is capable of imposing obligations on international parties.
II. Under Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108 (2013), a claim under the Alien Tort Statute must not have occurred within the territory of another sovereign entity (this allows for crimes on the high seas to qualify under the Alien Tort Statute).
III. Under Jesner v. Arab Bank, PLC, 138 S. Ct. 1386 (2018), a claim under the Alien Tort Statute cannot be asserted against individuals only, and not corporations.
