CHAPTER 14: U.S. ADJUDICATIVE REMEDIES FOR VIOLATIONS OCCURRING OUTSIDE THE U.S.

Filartiga and its Progeny

A. INTRODUCTION 1

B. QUESTIONS 2

C. ALIEN TORT LITIGATION 10

1. Jurisdiction 10
Filartiga v. Peña-Irala (1980) 11
Sosa v. Alvarez-Machain (2004) 17

2. Corporate Liability Under the ATCA 36
Doe I v. Unocal Corp. (2002) 37

D. TORTURE VICTIMS PROTECTION ACT LITIGATION 46
28 U.S.C. § 1350 46

E. INTERNATIONAL RULES GOVERNING TORTURE AND FORCED LABOR 52

F. OBSTACLES TO ADJUDICATION UNDER THE ALIEN TORT CLAIMS ACT 62
AND TORTURE VICTIMS PROTECTION ACT

1. Foreign Sovereign Immunities Act 62

2. Head of State and Diplomatic Immunity 76

3. The Act of State Doctrine 78
Doe I v. Liu Qi (2004) 79

4. Statute of Limitations, Damages, and Choice of Law 87
Filartiga v. Peña-Irala (1984) 87

5. Forum Non Conveniens 92

A. INTRODUCTION

Chapter 10 focused on bilateral measures available principally through actions of the U.S. Congress and executive to protect human rights. Chapters 11 and 12 looked at adjudicative procedures principally in multilateral institutions. Chapter 13 discusses how and when resort may be had in U.S. courts, legislatures, and administrative agencies to help promote U.S. compliance with international norms. In this chapter we discuss how courts in the U.S. may be used by both citizens and non-citizens to encourage other countries to comply with international human rights norms and to redress violations of the norms.

On a global scale by no means is it easy to persuade governments to cease human rights violations. Pressures from the United Nations, other governments, and various NGOs, including, for example, the International Committee of the Red Cross and Amnesty International, sometimes succeed in curbing abuses. Still too often, however, do the perpetrators ignore pleas of the international community; and thus other mechanisms are needed to prevent and help provide redress for violations.

One mechanism for enforcing compliance is a civil suit, filed by victims of human rights abuses against the perpetrators. Suits may be filed in U.S. federal and state courts. Since the early 1980s the filing of alien tort suits in U.S. courts has increased significantly. There are, though, complex legal and political issues surrounding the litigation.

Civil suits also may be filed in courts of the country in which atrocities occur. Those suits may not, however, adequately protect or compensate victims. For instance, repressive governments may refuse to enforce or even permit the legal actions. Also, when there is armed conflict normal judicial processes may be disrupted and judgments not enforced.

Criminal sanctions may deter human rights violations and are discussed in chapter 8, supra. Another mechanism might be a case in the International Court of Justice. ICJ jurisdiction, however, is limited to suits between governments and judgments are not enforceable by individuals. The docket of the ICJ includes cases with a significant human rights dimension, including cases arising out of armed conflict in the former Republic of Yugoslavia and the Democratic Republic of the Congo. The advisory jurisdiction of the ICJ may also concern human rights issues such as reservations to human rights treaties (see chapter 4) and the immunities from civil suit of Special Rapporteurs of the U.N. Commission on Human Rights. Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, 38 I.L.M. 873 (1999) (Advisory Opinion of 29 April 1999). In addition, human rights issues may arise in adjudication before other international tribunals. For example, the first contentious case decided by the International Tribunal of the Law of the Sea concerned excessive use of force by Guinean customs officials against a vessel registered to Saint Vincent and the Grenadines and the arbitrary detention of the master and crew. While the Convention on the Law of the Sea does not contain detailed provisions on the use of force in the arrest of a vessel, the Tribunal noted that “international law . . . requires that the use of force must be avoided as far as possible� and that “[c]onsiderations of humanity must apply in the law of the sea, as they do in other areas of international law.� The M.V. Saiga Case (Saint Vincent and the Grenadines v. Guinea), Judgment of 1 July 1999, para. 155.

This chapter will explore U.S. jurisdiction in suits by U.S. citizens and non-citizens against perpetrators of human rights abuse. We will explore the issue in the context of a suit filed in a Minnesota federal court by a Colombian man.

B. QUESTIONS

Colombia is located in northwestern South America, and is the only country which borders both the Carribean and the Pacific Ocean. It is home to over 41 million people, and 10 percent of the world’s fauna. With a murder rate 13 times that of the United States, Colombia is considered the homicide capital of the world.

Colombia is a leading supplier of oil to the United States, and since the 1980s, the Colombian government has been fighting against rebel groups over control of its oil resources. In the past twenty years, the oil pipeline which transports oil from the interior regions of Colombia to its ports has been bombed by rebel forces nearly 1000 times. Because it has been bombed so many times, Colombians refer to this pipeline as “the flute.� Due to the almost constant bombing, the Colombian military more than doubled the size of its force protecting the pipeline. Colombia’s President has also specified particular zones in which military commanders can impose curfews and conduct searches without warrants.

Although the Colombian government is fighting against numerous rebel forces, its primary opposition is the Revolutionary Armed Forces of Colombia (FARC). FARC claims to represent the interest of the country’s rural poor against the influence of transnational corporations and Colombia’s wealthy class. Many nations and organizations, including the United States and the European Union, have classified FARC as a terrorist group.

In the 1980s, paramilitary groups were formed in Colombia to protect the landowners from rebel fighters. The largest of these groups was the United Self-Defense Forces (AUC). These paramilitary groups have been accused of committing gross human rights violations, including the massacre of civilians believed to be aiding the FARC or other rebel groups. Although these paramilitary groups originally received funding from the government’s security forces, many became involved in Colombia’s drug trade in order to finance their efforts. In 2002, paramilitary groups were declared illegal in Colombia, but several of these groups continue to fight.

All sides in the conflict vie for control over the oil pipeline. The Colombian government wants to keep the pipeline safe and operational so that its resources can be sold on the world market. FARC fights to keep control of these resources away from transnational corporations. In 2003, the President of Colombia introduced a new initiative which allows young men to fulfill their compulsory military service requirements by remaining in their hometowns. These “peasant soldiers� are meant to ensure that there is a strong military presence in isolated towns which often serve as centers of FARC activity. Further, the United States has been investing nearly $600 million annually in Colombia, largely in the form of military equipment and training. This combination of peasant soldiers, paramilitary, rebel forces, and well supplied government troops has led to many killings of men between the ages of 18 and 45.

Despite the ongoing conflict, foreign oil companies find it quite lucrative to invest in Colombia. Amerapetrol, a U.S. company, operates a joint venture with the Colombian government. Under this agreement, Amerapetrol receives a 65% interest in the Colombian oil, and is responsible for extracting and transporting the oil, including maintaining and repairing the pipeline. The Colombian government retains a 35% interest in oil profits, a large portion of which is spent on providing security for oil operations in the country. Amerapetrol also employs Seguridad, a Colombian company, which provides additional security services and counseling regarding Amerapetrol’s facilities in Colombia.

Amerapetrol began its operations in Colombia, extracting oil from underground and moving it to ports via the pipeline. On several occasions, the pipeline was bombed, reportedly by the FARC. Officials from Amerapetrol met with the Colombian military to discuss strategies to slow down or prevent further bombings. The military pledged to increase the number of troops guarding the pipeline. In a separate meeting with Amerapetrol, Seguridad recommended hiring local security personnel to supplement Colombia’s military presence. Unsatisfied with the capabilities of the military to secure the pipeline, Amerapetrol agreed to this suggestion, leaving the details to Seguridad. Seguridad hired a militant paramilitary offshoot of the AUC to serve as added security protecting the pipeline.

Shortly after this meeting, a human rights organization contacted Amerapetrol’s top officials to discuss the violence surrounding the protection of the pipeline. The company responded by insisting that it never asked the Colombian military to commit human rights violations, and that it had delegated most security decisions to Seguridad. Company officials acknowledged that they knew the project would require security protection, and they admitted they had heard reports that human rights violations often accompanied security protection provided by the Colombian military. The company officials nonetheless maintained that they had no way to monitor or control the military’s actions in the field. The human rights organization, dissatisfied with the company’s responses, continued to investigate the human rights situation. During their investigation, they uncovered documents proving that Amerapetrol officials knew before they invested in the project that the military had made use of torture and forced labor to keep the pipeline up and running.

Rodrigo worked as a bartender in a small, isolated Colombian town situated less than a mile from the pipeline. Although he did not care for discussions of politics or rebellion, the bar at which he worked was occasionally frequented by men claiming to be members of FARC. In March 2005, unknown rebel forces launched a coordinated attack at several points along the pipeline. This attack caused oil extraction and transportation to cease while the pipe was repaired. Seguridad sent a detachment of paramilitary troops to the area to bolster security. The paramilitary troops wore uniforms similar to those worn by the Colombian military, making it difficult to distinguish between the two.

In order to speed the repairs, all able-bodied men, including Rodrigo, were forced to work on the damaged pipeline. Columbian soldiers threatened the workers with beatings or death if they did not comply with instructions, and paramilitary troops maintained order in the town. Since the town was small, it was easy to patrol at night, and Rodrigo heard stories of individuals being shot trying to run away. After a month of forced labor, Rodrigo was removed forcibly from his house by uniformed men. He was taken to a darkened room in a cement basement. While there, he was stripped naked and was handcuffed to a chain suspended from the ceiling. For the next week he was tortured while being questioned about FARC activities. When he was finally released, Rodrigo escaped his town, eventually fleeing to Venezuela. He ultimately came to the United States, and now lives in Duluth, Minnesota.

You work for the Center for Constitutional Rights, and you have been asked to represent Rodrigo. He is suing Amerapetrol, Seguridad, and the government of Colombia in a Minnesota federal district court. Rodrigo alleges that Amerapetrol, Seguridad, and the Government of Colombia are liable to him for torture and forced labor. As part of your investigation of the case, you have contacted human rights organizations. They have published reports indicating that Amerapetrol officials knew that forced labor was used to repair its pipeline and that the Colombian military had often resorted to torture. The United States Department of State has submitted a Statement of Interest to the court in which it asserts that adjudication of this case would interfere with the foreign policy of the United States, and could have a negative effect on the global economy.
Process was served against the three defendants in the following manner: Service was effected by hand delivery to the corporate headquarters of Amerapetrol which is located in St. Paul, Minnesota. Seguridad was served according to the procedures for service upon individuals in a foreign country set forth in Rule 4(f) of the Federal Rules of Civil Procedure. Service was made on the Government of Colombia by the U.S. Department of State under the Foreign Sovereign Immunities Act (FSIA) via diplomatic channels in accordance with 28 U.S.C. §1608(a)(4). The defendants have the following contacts with Minnesota: Amerapetrol maintains its company headquarters in St. Paul, Minnesota, although it is incorporated in the State of Delaware. Seguridad is incorporated in Colombia, but its officials have visited Minnesota more than a dozen times in the last couple of years to discuss security arrangements in Colombia. Officials of the Government of Colombia have twice visited the Amerapetrol headquarters in St. Paul to discuss the joint venture, but there is no consulate or other contact with Minnesota.

After reading the remainder of the chapter, you should be able to answer these questions:

1. Why would Rodrigo choose to sue the defendants in a U.S. court?

2. Can the Alien Tort Claims Act (“ATCA�) provide federal courts with subject matter jurisdiction over Rodrigo’s claims?

a. Is torture a tort? Is forced labor?

(1) Is slavery covered by the ATCA? If so, is forced labor the same as slavery? What are the differences?

(2) Is it significant under Sosa that forced labor is not categorically prohibited?

(3) Is there authority to forced labor is actionable under Sosa?

b. Is Rodrigo an individual who may sue under the ATCA?

c. Can Amerapetrol and Seguridad be held liable for human rights violations committed by the Colombian military? Can the Colombian military and Amerapetrol be held liable for human rights violations committed by the paramilitary troops employed by Seguridad?

d. Can the alleged torts be viewed as violations of a treaty of the U.S.? Is Colombia a party to any such treaty? If Colombia is not a party to that treaty, would the ATCA apply?

(1) Do any provisions of the Covenants on Civil and Political or Economic, Social and Cultural Rights apply to Rodrigo’s situation?

(2) Does Common Article 3 of the Geneva Conventions apply to Rodrigo’s situation?

(3) Does Protocol II apply to Rodrigo’s situation?

(4) Article 50 of the Geneva Convention relative to the Treatment of Prisoners of War allows for the utilization of the labor of prisoners to work in industries “connected with the production or extraction of raw materials. Does this apply to Rodrigo’s case? Article IV of Protocol II prohibits slavery and the slave trade “in all their forms.� Is forced labor a form of slavery?

e. Alternatively, are the alleged torts violations of the law of nations?

(1) What arguments would you make to support the existence of a customary international norm against the alleged torts, absent a controlling treaty provision? What sources would you cite?

(2) Is there a universally accepted norm proscribing torture? Proscribing forced labor?

(3) If there are universally accepted norms, are they universally enforced as a matter of legal obligation?

f. Does the ATCA require Rodrigo to allege that the defendants committed a violation of a jus cogens norm, or will it suffice for him to allege that the defendants violated customary international law or a U.S. treaty provision?

3. Can corporations be held liable under the ATCA?

a. Can Amerapetrol be held liable for Rodrigo’s injuries under a theory of vicarious liability or similar tort theories?

b. Can Amerapetrol be held liable for Rodrigo’s injuries under a theory of aiding and abetting liability?

c. Does customary international law allow for vicarious liability for human rights abuses? If not, does the ATCA establish liability?

4. What prerequisites must be met in order for federal courts to accept jurisdiction
under the ATCA?

a. If Rodrigo were a citizen of the U.S., could he sue under the ATCA?

b. Is Rodrigo able to sue under the ATCA because he is living in the U.S. now? What if he were still living in Venezuela?

c. How would you argue, consistent with Sosa v. Alvarez-Machain, that the district court has jurisdiction to hear this case?

5. Does the Torture Victim Protection Act (“TVPA�) provide federal courts with an alternative source of subject matter jurisdiction over Rodrigo’s claims?

a. Do the activities described in Rodrigo’s complaint constitute torture under the TVPA?

b. Is it necessary for any government to have ratified a treaty in order for the TVPA to apply to conduct in that country?

c. Does the TVPA provide jurisdiction over the Colombian Government?

d. Does the TVPA require Rodrigo to attempt first to sue the defendants in Colombian courts? Does the ATCA? Under what circumstances might you be able to argue such efforts are unnecessary even under the TVPA?

e. Can a corporation be sued under the TVPA?

6. Can the court exercise personal jurisdiction over the defendants?

a. Is there jurisdiction in Minnesota over Amerapetrol?

b. Does Seguridad have minimum contacts with Minnesota? Does the Colombian government?

c. Could either Seguridad or the Colombian Government make a forum non conveniens argument in order to avoid a suit in Minnesota?

7. Are there any other obstacles to suing the defendants in federal courts?

a. Does the Foreign Sovereign Immunities Act (“FSIA�) insulate the Colombian government from jurisdiction in the U.S.?

b. Can the Colombian government benefit from act of state immunity? What problems will it have in raising this argument?

c. What steps must be taken to serve process on the Colombian government under the FSIA, 28 U.S.C. §1608?

d. Is Rodrigo’s claim justiciable under the political question doctrine?

e. To what extent are executive branch statements of interest binding on the court?

8. What are the alternatives to a suit in U.S. courts?

a. What alternatives are available through the U.N.?

b. What are the advantages and disadvantages of using U.S. courts as compared with the use of international procedures?

(1) for preventing harm to the victims?

(2) for getting relief to the victims?

(3) for fact-finding (e.g., with respect to subpoena powers, depositions, and other access to relevant information)?

(4) for punishing the perpetrators?

(5) for publicity about human rights violations?

(6) for access to the procedures?

(7) for building international human rights structures possessing legitimacy?

(8) other objectives?

c. Do all the steps required to bring a suit in U.S. courts distract attention from the underlying human rights issues and objectives involved?

d. How does the impact of using U.S. courts differ from using U.S. foreign policy objectives?

9. If Rodrigo prevails, what remedy should the U.S. court grant him?

a. What types of damages might he seek? Can he sue for punitive damages as well as compensatory damages?

b. Are damages collectible? Against which parties?

c. What benefits might there be to his suit if any damages awarded prove uncollectible?

d. Will the adverse publicity of the trial serve as an effective deterrent to the defendants even if his suit is dismissed?

e. How does his suit fit within the overall strategy for curbing human rights abuses in Colombia and for seeking peace and justice in that region?

C. ALIEN TORT LITIGATION

1. Jurisdiction

U.S. federal courts have jurisdiction to hear suits by aliens for torts committed in violation of international law. The Alien [Tort] Claims Act (“ATCA�), 28 U.S.C. § 1350, provides:

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 United States.

The ATCA originally was included in the Judiciary Act of 1789, but the reasons for its inclusion are unclear. After noting the absence of any record of congressional debate about the provision, the Supreme Court by inference concluded that the First Congress did not intend the ATCA to be used only if Congress or a state legislature passed another statute creating causes of action under the law of nations and that the First Congress intended only a modest set of causes of action under the common law to be cognizable under the ATCA. Sosa v. Alvarez-Machain, 542 U.S. 692, 718-20 (2004). The Supreme Court also has suggested that Congress wanted federal courts to adjudicate the claims to promote uniformity in application of international norms, Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 427 n.25 (1964). See also Joan Fitzpatrick, The Future of the Alien Tort Claims Act of 1789: Lessons from In Re Marcos Human Rights Litigation, 67 St. John's L. Rev. 491, 492 (1993); William S. Dodge, The Historical Origins of the Alien Tort Statute: A Response to “Originalists,� 19 Hastings Int'l & Comp. L. Rev. 221, 235 (1996).

The ATCA was not widely used until the 1980s, when a growing interest in protecting human rights and an increase in the number of lawyers familiar with international law heralded a resurgence in use of the statute. Fitzpatrick, supra, at 493. The Second Circuit’s decision in Filartiga v. Peña-Irala, excerpted here, paved the way for many subsequent suits to compensate victims for violations of international law.

* * * * *

Filartiga v. Peña-Irala, 630 F.2d 876 (2d Cir. 1980) (footnotes and several citations omitted):

IRVING R. KAUFMAN, Circuit Judge . . .

I

[Plaintiffs appealed the district court’s decision dismissing their wrongful death action for lack of subject matter jurisdiction. The plaintiffs, Dr. Joel Filartiga and his daughter Dolly, are citizens of Paraguay, as is the defendant, Americo Norberto Peña-Irala. Dolly is present in the U.S. under a visitor’s visas, and has applied for political asylum. Peña also entered the U.S. under a visitor’s visa, but stayed beyond the term of his visa.

Dr. Filartiga opposed the government of the President of Paraguay. Appellants contend on March 29, 1976, Dr. Filartiga’s seventeen-year-old son, Joelito, was kidnaped and tortured to death by Peña, then Inspector General of Police in Asuncion, Paraguay, in Peña’s home. Dolly was later forced to view the body of her severely tortured brother and was told, “Here you have what you have been looking for for so long and what you deserve. Now shut up,� as she fled. Appellants believe Joelito was killed in retaliation for his father’s political activities and beliefs.

Dr. Filartiga filed a criminal action against Peña and the police in Paraguayan courts. In response, Dr. Filartiga’s attorney was arrested, shackled to a wall, threatened to death by Peña, and disbarred without just cause. When Dolly learned Peña was in the U.S., she and her father filed a civil suit against him in federal court, asking for $10,000,000 of compensatory and punitive damages.]

The cause of action is stated as arising under “wrongful death statutes; the U.N. Charter; the Universal Declaration on Human Rights; the U.N. Declaration Against Torture; the American Declaration of the Rights and Duties of Man; and other pertinent declarations, documents and practices constituting the customary international law of human rights and the law of nations,� as well as 28 U.S.C. § 1350, Article II, sec. 2 and the Supremacy Clause of the U.S. Constitution. Jurisdiction is claimed under the general federal question provision, 28 U.S.C. § 1331, and, principally on this appeal, under the Alien Tort Statute, 28 U.S.C. § 1350.

[The district court judge] . . . dismissed the complaint on jurisdictional grounds. [He] recognized the strength of appellants’ argument that official torture violates an emerging norm of customary international law. Nonetheless, he felt constrained by dicta contained in two recent opinions of this Court . . . to construe narrowly “the law of nations,� as employed in § 1350, as excluding that law which governs a state’s treatment of its own citizens. . . .

II

Appellants rest their principal argument in support of federal jurisdiction upon the Alien Tort Statute, 28 U.S.C. § 1350, [excerpted supra] . . .. Since appellants do not contend that their action arises directly under a treaty of the United States, a threshold question on the jurisdictional issue is whether the conduct alleged violates the law of nations. In light of the universal condemnation of torture in numerous international agreements, and the renunciation of torture as an instrument of official policy by virtually all of the nations of the world (in principle if not in practice), we find that an act of torture committed by a state official against one held in detention violates established norms of the international law of human rights, and hence the law of nations.

The Supreme Court has enumerated the appropriate sources of international law. The law of nations “may be ascertained by consulting the works of jurists, writing professedly on public law; or by the general usage and practice of nations; or by judicial decisions recognizing and enforcing that law.� . . .

The Paquete Habana, 175 U.S. 677 . . . (1900), reaffirmed that

where there is no treaty, and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations; and, as evidence of these, to the works of jurists and commentators, who by years of labor, research and experience, have made themselves peculiarly well acquainted with the subjects of which they treaty. Such works are resorted to by judicial tribunals, not for the speculations of their authors concerning what the law ought to be, but for trustworthy evidence of what the law really is.

Modern international sources confirm the propriety of this approach.

Habana is particularly instructive for present purposes, for it held that the traditional prohibition against seizure of an enemy’s coastal fishing vessels during wartime, a standard that began as one of comity only, had ripened over the preceding century into “a settled rule of international law� by “the general assent of civilized nations.� Thus it is clear that courts must interpret international law not as it was in 1789, but as it has evolved and exists among the nations of the world today. . . .

The requirement that a rule command the “general assent of civilized nations� to become binding upon them all is a stringent one. Were this not so, the courts of one nation might feel free to impose idiosyncratic legal rules upon others, in the name of applying international law. . . .

The United Nations Charter (a treaty of the United States, see 49 Stat. 1033 (1945)) makes it clear that in this modern age a state’s treatment of its own citizens is a matter of international concern. It provides:

With a view to the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among nations . . . the United Nations shall promote . . . universal respect for, and observance of, human rights and fundamental freedoms for all without distinctions as to race, sex, language or religion.

Id. Art. 55. And further:

All members pledge themselves to take joint and separate action in cooperation with the Organization for the achievement of the purposes set forth in Article 55.

Id. Art. 56.

While this broad mandate has been held not to be wholly self-executing, this observation alone does not end our inquiry. For although there is no universal agreement as to the precise extent of the “human rights and fundamental freedoms� guaranteed to all by the Charter, there is at present no dissent from the view that the guaranties include, at a bare minimum, the right to be free from torture. This prohibition has become part of customary international law, as evidenced and defined by the Universal Declaration of Human Rights, General Assembly Resolution 217 (III)(A) (Dec. 10, 1948) which states in the plainest of terms, “no one shall be subjected to torture.� The General Assembly has declared that the Charter precepts embodied in this Universal Declaration “constitute basic principles of international law.� G.A. Res. 2625 (XXV) (Oct. 24, 1970).

Particularly relevant is the Declaration on the Protection of All Persons from Being Subjected to Torture, General Assembly Resolution 3452, 30 U.N. GAOR Supp. (No. 34) 91, U.N. Doc. A/1034 (1975) . . .. The Declaration expressly prohibits any state from permitting the dastardly and totally inhuman act of torture. . . .

Turning to the act of torture, we have little difficulty discerning its universal renunciation in the modern usage and practice of nations. . . . The international consensus surrounding torture has found expression in numerous international treaties and accords. . . . The substance of these international agreements is reflected in modern municipal -- i.e. national -- law as well. Although torture was once a routine concomitant of criminal interrogations in many nations, during the modern and hopefully more enlightened era it has been universally renounced. According to one survey, torture is prohibited, expressly or implicitly, by the constitutions of over fifty-five nations, including both the United States and Paraguay. . . .

Having examined the sources from which customary international law is derived -- the usage of nations, judicial opinions and the works of jurists -- we conclude that official torture is now prohibited by the law of nations. The prohibition is clear and unambiguous, and admits of no distinction between treatment of aliens and citizens. . . . The treaties and accords cited above, as well as the express foreign policy of our own government, all make it clear that international law confers fundamental rights upon all people vis-a-vis their own governments. While the ultimate scope of those rights will be a subject for continuing refinement and elaboration, we hold that the right to be free from torture is now among them. . . .

III

Appellee submits that even if the tort alleged is a violation of modern international law, federal jurisdiction may not be exercised consistent with the dictates of Article III of the Constitution. The claim is without merit. Common law courts of general jurisdiction regularly adjudicate transitory tort claims between individuals over whom they exercise personal jurisdiction, wherever the tort occurred. Moreover, as part of an articulated scheme of federal control over external affairs, Congress provided, in the first Judiciary Act, § 9(b), 1 Stat. 73, 77 (1789), for federal jurisdiction over suits by aliens where principles of international law are in issue. The constitutional basis for the Alien Tort Statute is the law of nations, which has always been part of the federal common law.

It is not extraordinary for a court to adjudicate a tort claim arising outside of its territorial jurisdiction. A state or nation has a legitimate interest in the orderly resolution of disputes among those within its borders, and where the lex loci delicti commissi is applied, it is an expression of comity to give effect to the laws of the state where the wrong occurred.

. . . A case properly “aris[es] under the . . . laws of the United States� for Article III purposes if grounded upon statutes enacted by Congress or upon the common law of the United States. . . .

As ratified, the judiciary article contained no express reference to cases arising under the law of nations. Indeed, the only express reference to that body of law is contained in Article I, sec. 8, cl. 10, which grants to the Congress the power to “define and punish . . . offenses against the law of nations.� Appellees seize upon this circumstance and advance the proposition that the law of nations forms a part of the laws of the United States only to the extent that Congress has acted to define it. This extravagant claim is amply refuted by the numerous decisions applying rules of international law uncodified in any act of Congress. . . .

Thus, it was hardly a radical initiative for Chief Justice Marshall to state in The Nereide, 13 U.S. (9 Cranch) 388, 422 . . . (1815), that in the absence of a congressional enactment, United States courts are “bound by the law of nations, which is a part of the law of the land.�. . .

Although the Alien Tort Statute has rarely been the basis for jurisdiction during its long history, in light of the foregoing discussion, there can be little doubt that this action is properly brought in federal court. . . .

Since federal jurisdiction may properly be exercised over the Filartigas’ claim, the action must be remanded for further proceedings. . . .

NOTES AND QUESTIONS

1. What sources of international law were used in Filartiga? How did the court use the treaties it cited?

2. Now that the U.S. is party to the Covenant on Civil and Political Rights, has the approach of Filartiga been changed? What is the significance, if any, of the declaration of non-self-execution attached by the U.S. to its ratification of the Covenant in litigation under the ATCA? See chapters 4, 13, supra.

3. The lead lawyers for plaintiffs in Filartiga were associated with the Center for Constitutional Rights, which has since then been involved in many ATCA cases. On remand the plaintiffs won a default judgment awarding them compensatory damages of $375,000 and punitive damages of $10 million. For discussion of additional issues on remand see Filartiga v. Peña-Irala, 577 F. Supp. 860 (E.D.N.Y. 1984), excerpted infra, at 86. The Filartiga family has not yet been able to collect; but they are still trying to enforce the judgment. Nora Boustany, For a Sister, Court Fight Stirs Memories of Paraguay, Wash. Post, Apr. 2, 2004, at A22.

4. The Filartiga opinion was widely publicized, and its author, Judge Kaufman, even penned an article advocating use of the ATCA to redress torture. Irving R. Kaufman, A Legal Remedy for International Torture?, N.Y. Times Mag., Nov. 9, 1980, at 44. The publicity focused not only on the novelty of Filartiga and its precedential value for future suits, but also on the human rights situation in Paraguay. Articles described the brutality of kidnapings, tortures, and murders under the dictatorship of President Stroessner and the widespread abuses perpetrated by his repressive government. Commentators praised the courage of the Filartigas in judicially protesting the treatment and drawing international attention to the situation, when most prior reaction had been to bury the victim quietly and deny abuse.

5. Judge Kaufman also presided over another famous case, the 1951 trial of alleged communist spies Julius and Ethel Rosenberg. According to some scholars, Judge Kauffman participated in improper ex parte communications with individuals connected with the prosecution. Ronald Radosh & Joyce Milton, The Rosenberg File: A Search for the Truth 277 (1983). In fact, prosecutor Roy Cohn claimed in his autobiography that, not only did he engage in ex parte communications with Kauffman, but that Kauffman was appointed to the case because of Cohn’s influence, and imposed the death penalty on his advice. Roy Cohn, The Autobiography of Roy Cohn by Sidney Zion 66-68, 77 (1988).

Under Filartiga federal courts have ATCA jurisdiction only if international law proscribes the tortious conduct. The proscription may be contained in a treaty to which the U.S. and the country where the tort occurred are parties. When no U.S.-ratified treaty controls, § 1350 requires that “the law of nations� prohibit the acts giving rise to the lawsuit.

Article 38 of the Statute of the International Court of Justice, which because of Article 92 of the U.N. Charter forms an integral part of the Charter, prescribes the sources of non-treaty “law of nations� as follows: . . .

b. international custom, as evidence of a general practice accepted as law;

c. the general principles of law recognized by civilized nations;

d. . . . judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

Customary international law is thus an integral part of “the law of nations�and the two are now often seen as synonymous. Customary norms reflect a general practice of governments accepted as law. See Deborah Perluss & Joan F. Hartman, Temporary Refuge: Emergence of a Customary Norm, 26 Va. J. Int’l L. 551, 554-58 (1986). Only widespread, rather than unanimous, acquiescence is needed, and acquiescence may occur in a short period of time. Ian Brownlie, Principles of Public International Law 6-7 (3d ed. 1979); 1 Restatement (Third) of the Foreign Relations Law of the United States § 102, comment b (1987).

A customary norm binds all governments, including those that have not recognized it, so long as they have not expressly and persistently objected to its development. 1 Restatement (Third) of the Foreign Relations Law of the United States § 102, comment d (1987); North Sea Continental Shelf Cases, supra, 1969 I.C.J. at 41-44. Certain customary norms bind all states, and treaties contrary to such norms are void. These peremptory norms form the body of law known as jus cogens, which is discussed in chapter 13, supra. A state which is not a party to a treaty may nonetheless be bound by it if the rules of the treaty have become a norm of customary international law. Mark W. Janis, An Introduction to International Law 19 (1988); see also United States v. Schiffer, 836 F. Supp. 1164, 1171 (E.D. Pa. 1993). Customary norms thus differ from treaty clauses, which bind only the parties to the treaties.

Courts have nonetheless struggled in determining what is actionable under the ATCA, and whether it allows for the creation of new causes of action or merely subject matter jurisdictional over a claim. At what point is a norm of international law sufficiently customary that its violation could support a claim in federal courts? Although courts have interpreted the “law of nations� as evolving since the ATCA was adopted in 1789, should they have? The Supreme Court’s 2004 decision in Sosa v. Alvarez-Machain attempted to answer these questions.

* * * * *

Sosa v. Alvarez-Machain, 542 U.S. 692 (2004) (footnotes and several citations omitted):

Justice Souter delivered the opinion of the court, Parts I and III of which were unanimous, Part II of which was joined by Rehnquist, C.J., and Stevens, O’Connor, Scalia, Kennedy, and Thomas, JJ., and Part IV of which was joined by Stevens, O’Connor, Kennedy, Ginsburg, and Breyer, JJ.

I

[Alvarez was indicted in 1990 by a federal grand jury for the murder of a Drug Enforcement Agency (DEA) agent. The DEA asked the Mexican government for help in extraditing Alvarez, but the negotiations proved fruitless. The DEA approved a plan to hire Mexican nationals to seize Alvarez and bring him to the U.S. for trial. Jose Francisco Sosa was one of the nationals hired, and as planned, Alvarez was abducted from his house, held overnight in a motel, and brought by private plane to El Paso, Texas, where he was arrested by federal officers.

Alvarez was eventually tried and acquitted. In 1993, after returning to Mexico, Alvarez brought this action against Sosa, a DEA operative, five unnamed Mexican civilians, the U.S., and four DEA agents. He sought damages against the U.S. under the Federal Tort Claims Act (FTCA), and against Sosa under the Alien Tort Statute (ATS) for a violation of the law of nations. The District Court granted the Government’s motion to dismiss the FTCA claim, but awarded summary judgment and $25,000 in damages to Alvarez on the ATS claim. The Court of Appeals, en banc, affirmed, relying on its own precedent that the ATS “not only provides federal courts with subject matter jurisdiction, but also creates a cause of action for an alleged violation of the law of nations.� In reaching its decision, the court relied on the “clear and universally recognized norm prohibiting arbitrary arrest and detention.�]

II

[The Court affirms the lower court’s dismissal of the FTCA claim, noting that the liability asserted in this case falls within the FTCA exception to waiver of sovereign immunity for claims “arising in a foreign country.� 28 U.S.C. § 2680(k).]

III

Alvarez has also brought an action under the ATS against petitioner, Sosa, who argues (as does the United States supporting him) that there is no relief under the ATS because the statute does no more than vest federal courts with jurisdiction, neither creating nor authorizing the courts to recognize any particular right of action without further congressional action. Although we agree the statute is in terms only jurisdictional, we think that at the time of enactment the jurisdiction enabled federal courts to hear claims in a very limited category defined by the law of nations and recognized at common law. We do not believe, however, that the limited, implicit sanction to entertain the handful of international law cum common law claims understood in 1789 should be taken as authority to recognize the right of action asserted by Alvarez here.

A

. . . The first Congress passed [the ATS] as part of the Judiciary Act of 1789, in providing that the new federal district courts “shall also have cognizance, concurrent with the courts of the several States, or the circuit courts, as the case may be, of all causes where an alien sues for a tort only in violation of the law of nations or a treaty of the United States.� Act of Sept. 24, 1789, ch. 20, § 9(b), 1 Stat. 79.

[The Court disagreed with Alvarez’s contention that the ATS authorized the creation of new causes of action for torts in violation of international law. The Court notes that the word “cognizance� was used interchangeably with “jurisdiction� by Alexander Hamilton in The Federalist No. 81. Further, the ATS was placed in a section of the Judiciary Act of 1789 that was otherwise concerned with federal court jurisdiction.] In sum, we think the statute was intended as jurisdictional in the sense of addressing the power of the courts to entertain cases concerned with a certain subject.

[This raises new questions about the scope of the ATS.] Sosa would have it that the ATS was stillborn because there could be no claim for relief without a further statute expressly authorizing adoption of causes of action [while others think] that federal courts could entertain claims once the jurisdictional grant was on the books, because torts in violation of the law of nations would have been recognized within the common law of the time. . . . We think history and practice give the edge to this latter position.

1

. . . In the years of the early Republic, this law of nations comprised two principal elements, the first covering the general norms governing the behavior of national states with each other: “the science which teaches the rights subsisting between nations or states, and the obligations correspondent to those rights,� or “that code of public instruction which defines the rights and prescribes the duties of nations, in their intercourse with each other.� This aspect of the law of nations thus occupied the executive and legislative domains, not the judicial.

The law of nations included a second, more pedestrian element, however, that did fall within the judicial sphere, as a body of judge-made law regulating the conduct of individuals situated outside domestic boundaries and consequently carrying an international savor. . . . [T]he law of nations in this sense was implicated “in mercantile questions, such as bills of exchange and the like; in all marine causes, relating to freight, average, demurrage, insurances, bottomry ...; [and] in all disputes relating to prizes, to shipwrecks, to hostages, and ransom bills.� . . . It was the law of nations in this sense that our precursors spoke about when the Court explained the status of coast fishing vessels in wartime grew from “ancient usage among civilized nations, beginning centuries ago, and gradually ripening into a rule of international law . . ..� The Paquete Habana, 175 U.S. 677 (1900).

There was, finally, a sphere in which these rules binding individuals for the benefit of other individuals overlapped with the norms of state relationships. Blackstone referred to it when he mentioned three specific offenses against the law of nations addressed by the criminal law of England: violation of safe conducts, infringement of the rights of ambassadors, and piracy. An assault against an ambassador, for example, impinged upon the sovereignty of the foreign nation and if not adequately redressed could rise to an issue of war. It was this narrow set of violations of the law of nations, admitting of a judicial remedy and at the same time threatening serious consequences in international affairs, that was probably on minds of the men who drafted the ATS with its reference to tort.

2

[The Court discusses the difficulties that the Continental Congress faced in punishing violations of the law of nations. In 1781, by resolution the Congress implored the states to vindicate rights under the law or nations. The resolution called for state legislatures to punish violations of safe conducts or passports, hostility against those “in amity� with the U.S., infractions against ambassadors and other public ministers, and infractions of treaties and conventions to which the U.S. was a party.]

The Framers responded by vesting the Supreme Court with original jurisdiction over “all Cases affecting Ambassadors, other public ministers and Consuls.� U.S. Const., Art. III, § 2, and the First Congress followed through. The Judiciary Act reinforced this Court’s original jurisdiction over suits brought by diplomats, see 1 Stat. 80, ch. 20, § 13, created alienage jurisdiction, § 11 and, of course, included the ATS, § 9.

3

[The Court notes that Congress made hardly any changes to the section of the Federal Judiciary Act of 1789 that became the ATS, and there is little record of congressional discussions about private actions that might be subject to the jurisdictional provision.]

Still, the history does tend to support two propositions. First, there is every reason to suppose that the First Congress did not pass the ATS as a jurisdictional convenience to be placed on the shelf for use by a future Congress or state legislature that might, some day, authorize the creation of causes of action or itself decide to make some element of the law of nations actionable for the benefit of foreigners. The anxieties of the preconstitutional period cannot be ignored easily enough to think that the statute was not meant to have a practical effect. . . . [T]he First Congress was attentive enough to the law of nations to recognize certain offenses expressly as criminal . . ..

The second inference to be drawn from the history is that Congress intended the ATS to furnish jurisdiction for a relatively modest set of actions alleging violations of the law of nations. Uppermost in the legislative mind appears to have been offenses against ambassadors, violations of safe conduct were probably understood to be actionable, and individual actions arising out of prize captures and piracy may well have also been contemplated. But the common law appears to have understood only those three of the hybrid variety as definite and actionable, or at any rate, to have assumed only a very limited set of claims. . . .

4

[The Court states that there have been few cases or legal materials referring to the ATS. Two early cases were discussed in which the ATS was assumed to be jurisdictional. Additionally, a 1795 opinion of Attorney General William Bradford mentioned that the Americans who had taken part in the French plunder of a British slave colony in Sierra Leone could be subject to a tort action in federal court. It appears] likely that Bradford understood the ATS to provide jurisdiction over what must have amounted to common law causes of action.

B

. . .

. . . [A]lthough the ATS is a jurisdictional statute creating no new causes of action, the reasonable inference from the historical materials is that the statute was intended to have practical effect the moment it became law. The jurisdictional grant is best read as having been enacted on the understanding that the common law would provide a cause of action for the modest number of international law violations with a potential for personal liability at the time.

IV

We think it is correct, then, to assume that the First Congress understood that the district courts would recognize private causes of action for certain torts in violation of the law of nations, though we have found no basis to suspect Congress had any examples in mind beyond those torts corresponding to Blackstone’s three primary offenses: violation of safe conducts, infringement of the rights of ambassadors, and piracy. We assume, too, that no development in the two centuries from the enactment of § 1350 to the birth of the modern line of cases beginning with Filartiga v. Pena-Irala has categorically precluded federal courts from recognizing a claim under the law of nations as an element of common law; Congress has not in any relevant way amended § 1350 or limited civil common law power by another statute. Still, there are good reasons for a restrained conception of the discretion a federal court should exercise in considering a new cause of action of this kind. Accordingly, we think courts should require any claim based on the present-day law of nations to rest on a norm of international character accepted by the civilized world and defined with a specificity comparable to the features of the 18th-century paradigms we have recognized. This requirement is fatal to Alvarez’s claim.

A

[The Court points out five reasons for judicial caution when considering claims which would implement jurisdiction under the ATS. First, the prevailing understanding of the common law has changed. In 1789, the common law was thought of as a “transcendental body of law outside of any state,� and now when a court formulates a new common law policy, the general understanding is that it is “either made or created.� Second, since Erie R. Co. v. Tompkins, it has been decided that there is no federal “general� common law. Although the federal courts have created judicial rules of decision of particular importance to foreign relations, i.e. the act of state doctrine, the courts will generally look for “legislative guidance before exercising innovative authority over substantive law.� Third, the court has “recently and repeatedly� held that the decision to create a private right of actions is one better left to legislative judgment. When a statute does not expressly create a cause of actions, the Court is reluctant to infer legislative intent to provide one. Because of the possible collateral consequences of making international rules privately actionably, judicial caution is necessary. Fourth, the potential foreign relations implications of recognizing such causes of actions should make courts particularly wary of impinging on the discretion of the legislative and executive branches in managing foreign affairs.]

B

. . . [O]ther considerations persuade us that the judicial power [to recognize actionable international norms] should be exercised on the understanding that the door is still ajar subject to vigilant doorkeeping, and thus open to a narrow class of international norms today. Erie did not in terms bar any judicial recognition of new substantive rules, no matter what the circumstances, and post-Erie understanding has identified limited enclaves in which federal courts may derive some substantive law in a common law way. For two centuries we have affirmed that the domestic law of the United States recognizes the law of nations. See, e.g., Sabbatino, 376U.S., at 423 (“[I]t is, of course, true that United States courts apply international law as a part of our own in appropriate circumstances�); The Paquete Habana, 175 U.S., at 700 (“International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for their determination�); The Nereide, 9 Cranch 388 (1815) (Marshall, C.J.) (“[T]he Court is bound by the law of nations which is a part of the law of the land�); see also Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 641 (1981) (recognizing that “international disputes implicating ... our relations with foreign nations� are one of the “narrow areas� in which “federal common law� continues to exist). It would take some explaining to say now that federal courts must avert their gaze entirely from any international norm intended to protect individuals.

. . . The First Congress, which reflected the understanding of the framing generation and included some of the Framers, assumed that federal courts could properly identify some international norms as enforceable in the exercise of §§ 1350 jurisdiction. We think it would be unreasonable to assume that the First Congress would have expected federal courts to lose all capacity to recognize enforceable international norms simply because the common law might lose some metaphysical cachet on the road to modern realism. . . . The position we take today has been assumed by some federal courts for 24 years, ever since the Second Circuit decided Filartiga v. Pena-Irala, and for practical purposes the point of today’s disagreement has been focused since the exchange between Judge Edwards and Judge Bork in Tel-Oren v. Libyan Arab Republic, 726 F.2d 774 (1984), Congress, however, has not only expressed no disagreement with our view of the proper exercise of the judicial power, but has responded to its most notable instance by enacting legislation supplementing the judicial determination in some detail.

. . . [N]othing Congress has done is a reason for us to shut the door to the law of nations entirely. It is enough to say that Congress may do that at any time (explicitly, or implicitly by treaties or statutes that occupy the field) just as it may modify or cancel any judicial decision so far as it rests on recognizing an international norm as such.

C

We must still, however, derive a standard or set of standards for assessing the particular claim Alvarez raises, and for this case it suffices to look to the historical antecedents. Whatever the ultimate criteria for accepting a cause of action subject to jurisdiction under § 1350, we are persuaded that federal courts should not recognize private claims under federal common law for violations of any international law norm with less definite content and acceptance among civilized nations than the historical paradigms familiar when § 1350 was enacted. This limit upon judicial recognition is generally consistent with the reasoning of many of the courts and judges who faced the issue before it reached this Court. See Filartiga, supra, at 890 (“[F]or purposes of civil liability, the torturer has become-- like the pirate and slave trader before him--hostis humani generis, an enemy of all mankind�); Tel-Oren, supra, at 781 (Edwards, J., concurring) (suggesting that the “limits of section 1350's reach� be defined by “a handful of heinous actions--each of which violates definable, universal and obligatory norms�); see also In re Estate of Marcos Human Rights Litigation, 25 F.3d 1467, 1475 (C.A.9 1994) (“Actionable violations of international law must be of a norm that is specific, universal, and obligatory�). And the determination whether a norm is sufficiently definite to support a cause of action should (and, indeed, inevitably must) involve an element of judgment about the practical consequences of making that cause available to litigants in the federal courts.

Thus, Alvarez’s detention claim must be gauged against the current state of international law, looking to those sources we have long, albeit cautiously, recognized. [The court quotes the same language from The Paquete Habana quoted in Filartiga, supra, at 12.] To begin with, Alvarez cites two well-known international agreements that, despite their moral authority, have little utility under the standard set out in this opinion. He says that his abduction by Sosa was an “arbitrary arrest� within the meaning of the Universal Declaration of Human Rights (Declaration). And he traces the rule against arbitrary arrest not only to the Declaration, but also to article nine of the International Covenant on Civil and Political Rights (Covenant) to which the United States is a party, and to various other conventions to which it is not. But the Declaration does not of its own force impose obligations as a matter of international law. . . . And, although the Covenant does bind the United States as a matter of international law, the United States ratified the Covenant on the express understanding that it was not self-executing and so did not itself create obligations enforceable in the federal courts. Accordingly, Alvarez cannot say that the Declaration and Covenant themselves establish the relevant and applicable rule of international law. He instead attempts to show that prohibition of arbitrary arrest has attained the status of binding customary international law.

. . .

Alvarez thus invokes a general prohibition of “arbitrary� detention defined as officially sanctioned action exceeding positive authorization to detain under the domestic law of some government, regardless of the circumstances. Whether or not this is an accurate reading of the Covenant, Alvarez cites little authority that a rule so broad has the status of a binding customary norm today. He certainly cites nothing to justify the federal courts in taking his broad rule as the predicate for a federal lawsuit, for its implications would be breathtaking. His rule would support a cause of action in federal court for any arrest, anywhere in the world, unauthorized by the law of the jurisdiction in which it took place, and would create a cause of action for any seizure of an alien in violation of the Fourth Amendment . . .. It would create an action in federal court for arrests by state officers who simply exceed their authority; and for the violation of any limit that the law of any country might place on the authority of its own officers to arrest. And all of this assumes that Alvarez could establish that Sosa was acting on behalf of a government when he made the arrest, for otherwise he would need a rule broader still.

Alvarez’s failure to marshal support for his proposed rule is underscored by the Restatement (Third) of Foreign Relations Law of the United States (1987), which says in its discussion of customary international human rights law that a “state violates international law if, as a matter of state policy, it practices, encourages, or condones ... prolonged arbitrary detention.� Id., § 702. Although the Restatement does not explain its requirements of a “state policy� and of “prolonged� detention, the implication is clear. Any credible invocation of a principle against arbitrary detention that the civilized world accepts as binding customary international law requires a factual basis beyond relatively brief detention in excess of positive authority. . . .

Whatever may be said for the broad principle Alvarez advances, in the present, imperfect world, it expresses an aspiration that exceeds any binding customary rule having the specificity we require. Creating a private cause of action to further that aspiration would go beyond any residual common law discretion we think it appropriate to exercise. It is enough to hold that a single illegal detention of less than a day, followed by the transfer of custody to lawful authorities and a prompt arraignment, violates no norm of customary international law so well defined as to support the creation of a federal remedy.

The judgment of the Court of Appeals is Reversed.

NOTES AND QUESTIONS

1. Prior to Sosa, most cases and commentaries referred to 28 U.S.C. §1350 as the Alien Tort Claims Act (“ATCA�). In Sosa, however, the Court called it the Alien Tort Statute (“ATS�). Interestingly, plaintiffs’ attorneys, who generally believe that the statute provides more than merely a jurisdictional grant, refer to the statute as the ATCA, while their opponents generally use the term ATS. Emeka Duruigbo, The Economic Cost of Alien Tort Litigation: A Response to Awakening Monster: The Alien Tort Statute of 1789,14 Minn. J. Global Trade 1, 10 (2004).

Further, before Sosa, scholars debated the legitimacy of Filartiga and human rights litigation under the ATCA. Some authors argued that Filartiga and its progeny were inconsistent with Article III of the Constitution, and gave unelected federal judges the power to create general common law based on customary international law at the expense of the state. See Curtis A. Bradley & Jack L. Goldsmith, The Current Illegitimacy of International Human Rights Litigation, 66 Fordham L. Rev. 319, 357 (1997). Other scholars argued that the policy of creating general common law which involved uniquely federal interests was the legitimate duty of the federal judiciary. See Harold Hongju Koh, Is International Law Really State Law?, 111 Harv. L. Rev. 1824. The decision in Sosa effectively put an end to this debate, however, since the Court cited with approval the Second Circuit’s reasoning in Filartiga.

2. Think back to the Filartiga case. Would the sources of international law cited in that case alone be sufficient to sustain a similar claim post-Sosa? Is Filartiga consistent with the Court’s decision in Sosa?

3. The ATCA confers jurisdiction only over suits by aliens and is inapplicable to suits by U.S. citizens. Linder v. Calero Portocarrero, 747 F. Supp. 1452, 1460-61 (S.D. Fla. 1990), rev’d on other grounds, 963 F.2d 332 (1992). The Torture Victim Protection Act (“TVPA�), codified at 28 U.S.C. § 1350 and 1331, however, open federal courts to suits by citizens for extrajudicial execution and torture. See Part D, infra, page 45, for further discussion of the TVPA.

Suits under the ATCA are not actionable when the Foreign Sovereign Immunities Act (“FSIA�) would bar jurisdiction because the FSIA confers the sole method of obtaining jurisdiction over a foreign sovereign. Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428 (1989). See Part F, infra, page 61, for further discussion.

4. In order to make a successful ATCA claim, solid proof of international law needs to be presented. Two cases involving Argentina’s “dirty war� against suspected subversives in the 1970s illustrate this notion. In Forti I, the court recognized the plaintiff’s claims of official torture, prolonged arbitrary detention, and summary execution. Forti v. Suarez-Mason, 672 F. Supp. 1531, 1541-42 (N.D. Cal. 1987) (Forti I). The court held, however, that the plaintiff had not succeeded in showing that there existed customary international norms against “causing disappearance� and “cruel, inhuman and degrading treatment.� Id. at 1542-44. In Forti II, the plaintiffs presented several affidavits from international law scholars and legal authorities in favor of their position, and the court concluded that the plaintiffs had met their burden of showing international consensus with regard to the existence of the tort of “causing disappearance.� Forti v. Suarez-Mason, 694 F. Supp. 707, 711 (1988) (Forti II). The plaintiffs once again failed to prove to the court that there existed international consensus with regard to “cruel, inhuman or degrading treatment.� Id. at 712.

Judge Jensen in Forti I declared that to support a tort action a customary norm must be “universal, definable, and obligatory.� 672 F. Supp. 1531, 1540 (N.D. Cal. 1987). In Forti II, however, he explained that “plaintiffs need not establish unanimity among nations . . . [but only] a general recognition among states that a specific practice is prohibited.� 694 F. Supp. 707, 709 (N.D. Cal. 1988). What persuaded him to add that clarification? Compare this footnote in an amicus brief submitted by Frank Newman in a related case, Matter of the Requested Extradition of Suarez-Mason, 694 F. Supp. 676 (N.D. Cal. 1988):

This court in Forti [I] uses “universal� . . . to describe the requisite degree of consensus. “Universal� conceivably could create confusion if it suggests “unanimous�. Less ambiguous terms include “international consensus�, “internationally recognized�, and “widely accepted�. See U.S. Government’s Filartiga memorandum, 19 I.L.M. at 604 (1980) (requiring “a consensus in the international community that there is a widely shared understanding of the scope of this protection�). See also Foreign Assistance Act of 1961, sections 116 and 502B (providing for termination of assistance to governments that engage in consistent patterns of “gross violations of internationally recognized human rights�).

That paragraph underscores the need for correct adjectives and the danger of using words like “universal,� that may have a connotation in international discourse different from U.S. usage.

The Supreme Court in Sosa held that federal common law is a substantive source of international human rights law. Sosa, 542 U.S. at 728-33. In an alternative holding in Forti I, Judge Jensen ruled that 28 U.S.C. § 1331, which confers jurisdiction over federal questions, creates a right of action for international torts because their prohibition is part of federal common law. That ruling is significant because it grants U.S. citizens, in addition to aliens, a right to sue and thus eliminates a distinction which led to the anomalous result that aliens, but not citizens, could sue in U.S. courts for international torts. Does the holding render the ATCA redundant? In other words, if violations of international law represent violations of federal common law, is § 1350 necessary to confer jurisdiction on federal courts? Many cases involving prize suits were litigated under the law of nations in the early decades of the federal courts.

5. What international human rights norms give rise to claims under the ATS? Although the Supreme Court did not identify the norms that would be cognizable under the ATS, it did give some guidance on how to identify such norms. The Supreme Court has not yet definitively expressed a view on this elaboration, but in his concurring opinion, Justice Breyer identified torture and extrajudicial killing, war crimes, and genocide as meeting the Court’s standard. Sosa, 542 U.S. at 762 (Breyer, J., concurring).

Torture and Extrajudicial Killings. Courts have consistently found allegations of torture and extrajudicial killings to be actionable under the ATCA. For example, in Doe v. Saravia, 348 F. Supp. 2d 1112, 1153 (E.D. Cal. 2005), the court found that both types of claims were actionable because their prohibition in the international community is “specific, universal, and obligatory.� Further, in Aldana v. Del Monte Fresh Produce, N.A., 416 F.3d 1242 (11th Cir. 2005), plaintiffs alleged that the defendant corporation hired a private armed force during a labor dispute and that this force kidnaped, threatened, and tortured labor leaders. The court held that corporate participation in torture is actionable under the ATCA. Although allegations of torture and extrajudicial killings generally will be sufficient to support federal court jurisdiction, this view will not always be accepted. In Mujica v. Occidental Petroleum Corp., the court dismissed an otherwise valid ATCA claim of torture because the claim was non-justiciable under the political question doctrine. Mujica v. Occidental Petroleum Corp., 381 F. Supp. 2d 1164, 1195 (C.D. Cal. 2005). In that case, Colombian plaintiffs sued an American corporation over its alleged involvement in the bombing of Santo Domingo, Colombia by the Colombian Air Force. The State Department filed a Statement of Interest with the court, expressing its view that “this litigation would interfere with its approach to encouraging the protection of human rights in Colombia,� and thus a court judgment would show a lack of respect for the executive branch. Id. at 1193. Additionally, since the executive branch had indicated that it wished to pursue non-judicial methods in addressing the issues raised by the bombing of Santo Domingo, further “adjudication of this case would constitute disagreement with this prior foreign policy decision.� Id. at 1194.

Mujica raised the question of how much weight a court should place on a Statement of Interest submitted by the executive branch. Generally, when a lower court dismisses an ATCA case as non-justiciable under the political question doctrine, it will rely heavily on a Statement of Interest. See Joo v. Japan, 367 U.S. App. D.C. 45, 48 (2005) (“[W]e defer to the judgment of the Executive Branch . . . which represents, in a thorough and persuasive Statement of Interest, that judicial intrusion into relations between Japan . . . would impinge upon the ability of the President to conduct the foreign relations of the United States.�); Mujica, 381 F. Supp. 2d at 1188 (“As explained in the U.S. State Department’s Supplemental Statement of Interest, allowing Plaintiffs to pursue these state law claims would interfere with several of its foreign policy goals.�). Statements of interest, however, are not dispositive, and courts will often consider ATCA claims despite the objections of the executive branch. See Ungaro-Benages v. Dresdner Bank AG, 379 F.3d 1227, 1236 (11th Cir. 2004) (“[A] statement of interest from the executive is entitled to deference . . .. A statement of national interest alone, however, does not take the present litigation outside the competence of the judiciary.�).

Cruel, Inhuman, and Degrading Treatment. District courts have split over the issue of whether severe cruel, inhuman, and degrading treatment is actionable under the ATS. The court in Doe I v. Liu Qi, 349 F. Supp. 2d 1258 (N.D. Cal. 2004), held that such treatment does support a valid cause of action under the ATS. Plaintiffs in Liu Qi alleged that they were subjected to cruel, inhuman, and degrading treatment by Chinese officials because they were practitioners of Falun Gong. Although it is difficult to determine the threshold at which conduct becomes cruel, inhuman, and degrading, such conduct has been condemned in such sources of international law as the Restatement (Third) of Foreign Relations Law of the United States § 702(d), the Universal Declaration of Human Rights, United Nations Convention against Torture, and the International Covenant on Civil and Political Rights (Civil and Political Covenant). Id. at 1321. Since the U.S. has ratified the Civil and Political Covenant, which prohibits cruel, inhuman, and degrading punishment, such a cause of action exists under the ATS. Id. The 11th Circuit, however, has ruled that cruel, inhuman, and degrading treatment is not actionable under the ATS. Aldana, 416 F.3d at 1247. Since the Supreme Court in Sosa noted that the Civil and Political Covenant did not create any obligations enforceable in federal courts, its prohibition of cruel, inhuman, and degrading treatment can provide no basis for a cause of action under the ATS. Id.

Assume you are the defendant’s lawyer assigned to brief and argue, on appeal, the segment of Liu Qi concerning “cruel, inhuman or degrading treatment.� What issues would you raise? What additional support, if any, would you present? What facts might present the most persuasive claim for proscribing claims based on cruel, inhuman, or degrading treatment?

Prolonged Arbitrary Detention. The Supreme Court in Sosa concluded that Alvarez’s detention was not prolonged enough to be actionable under the ATS. Sosa, 542 U.S. at 738. That does not mean, however, that prolonged arbitrary detention is never sufficient to support an ATS claim. In Liu Qi, supra, the court did find that the detention of four of the plaintiffs was sufficiently prolonged to be actionable. Of the plaintiffs who could bring an action under the ATS, one was detained for 20 days without an opportunity to contact family or an attorney; the second was detained for nearly a month without being charged or given an opportunity to contact a lawyer; the third was detained for 49 days and was subjected to torture and inhuman treatment during her detention; and the fourth was subjected to 13 days of torture in which he was beaten with an electric baton, leather belt, and iron chain. Liu Qi, 349 F. Supp. 2d at 1326-27. The same court nonetheless rejected the prolonged and arbitrary detention claims of three other plaintiffs who, despite being subjected to cruel, inhuman, and degrading treatment, were detained for only a day. Id.

6. In reaching the above conclusions, courts have generally held that non-self-executing treaty clauses do not establish norms which would support a cause of action under the ATCA. See Sosa, 542 U.S. at 735 (noting that since the Civil and Political Covenant was ratified on the express understanding that it was not self-executing, it does not “create obligations enforceable in the federal courts�); Adamu v. Pfizer, Inc., 399 F. Supp. 2d 495 (S.D.N.Y. 2005). So which international agreements do establish actionable norms of international law? Not surprisingly, the district courts have split on this issue. Some courts have relied upon the Charter of the Nuremberg War Crimes Tribunal, the international criminal tribunals for the former Yugoslavia (ICTY) and for Rwanda (ICTR), the Rome Statute for the International Criminal Court (ICC), the Torture Victims Protection Act (TVPA), the War Crimes Act (18 U.S.C. § 2441(c)) and pre-Sosa lower court precedents. Saravia, 348 F. Supp. 2d at 1153-577; Aldana, 416 F.3d at 1250-51. Other courts, however, have held to the contrary. The court in In re South African Apartheid Litigation, 346 F. Supp. 2d 538, 549 (S.D.N.Y. 2004), held that the ICTY, ICTR, and Nuremberg Charter fail to establish “a clearly defined norm for ATCA purposes.�

7. The Court in Sosa notes that the ATCA was meant primarily as a jurisdictional statute, and not meant to create new causes of action. Sosa, 542 U.S. at 748 (“[T]he ATS is a jurisdictional statute creating no new causes of action.�). This precept is obviously true when a tort is committed in violation of a treaty. When the alleged tort was committed in violation of the law of nations, however, federal courts will only have subject matter jurisdiction when the tort violates customary international law. Hence, to some extent, a new cause of action based on customary international law is a prerequisite for jurisdiction under the ATCA. For example, in Enahoro v. Abubakar, 408 F.3d 877, 884 (7th Cir. 2005), the court noted that since “the ATS provides jurisdiction over a very limited number of claims and the jurisdiction grant is so closely tied to the claim, we need to examine whether there is a claim in this case which allows for the exercise of jurisdiction.�

8. The ATS cases starting with Filartiga can now be categorized with regard to three broad groups of defendants: (i) foreign government officials; (ii) corporations; and (iii) U.S. government officials.

Foreign Government Officials as Defendants. The initial use of the ATS was by foreign individuals suing foreign government officials acting under color of law. Sandra Coliver, Jennie Green & Paul Hoffman, Holding Human Rights Violators Accountable by Using International Law in U.S. Courts: Advocacy Efforts and Complementary Strategies, 19 Emory Int’l L. Rev. 169, 173-89 (2005) (Coliver); Julian G. Ku, The Third Wave: The Alien Tort Statute and the War on Terrorism, 19 Emory Intl L. Rev. 105, 107-08 (2005) (Ku). That use has continued with the previously mentioned Saravia and Liu Qi cases. Others are Mehinovic v. Vuckovic, 198 F. Supp. 2d 1322 (N.D. Ga. 2002) ($140 million judgment), Cabello v. Fernandez-Larios, 402 F.3d 1148, 1153-56 (11 th Cir. 2005) (per curiam), and Tachiona v. United States, 386 F.3d 205 (2d Cir. 2004).

Sandra Coliver, the former Executive Director of the Center for Justice and Accountability that has brought many of the ATS cases in recent years, says that as of early 2005 at least 16 foreign human rights individual violators had been sued successfully under the statute. She argues that these cases have contributed to a worldwide movement against impunity by “(1) helping to ensure that the United States does not remain a safe haven for such perpetrators, (2) holding individual perpetrators accountable for human rights abuses, (3) providing the victims with some sense of official acknowledgment and reparation, (4) contributing to the development of international human rights law, . . . (5) building a constituency in the United States that supports the application of international law in such cases and an awareness about human rights violations in countries in all regions of the world . . . (6) [helping to] create a climate of deterrence and (7) [helping to] catalyze efforts in several countries to prosecute their own human rights abusers.� (Coliver at 174-86.)

Corporate Defendants. A second wave of suits under the ATS was directed at U.S. and foreign corporate defendants for aiding and abetting foreign governments in their human rights violations. E.g., Aldana v. Del Monte Fresh Produce, N.A., supra; Agunda v. Texico, Inc., 303 F.3d 470 (2d Cir. 2002); Mujica, supra; Presbyterian Church of Sudan v. Talisman Energy, Inc., supra; Sarei v. Rio Tinto PLC, 2006 U.S. App. LEXIS 20174 (9th Cir. 2006); Coliver, 19 Emory Int’l L. Rev. at 207-18; Ku, 19 Emory Int’l L. Rev. at 109-10.) Because of the growing number of cases dealing with corporate liability, this issue will be discussed in greater detail in Section 2, infra.

U.S. Government Officials as Defendants. The third phase of ATS litigation involves foreign plaintiffs suing U.S. government officials over alleged human rights abuses. These cases are still pending in the lower courts after the Supreme Court, 6-3, in Rasul v. Bush, 542 U.S. 466, 475-78 (2004), upheld the right of foreign detainees at the U.S. base in Guantánamo Bay, Cuba to have access to U.S. courts to contest their detention, including actions under the ATS. See generally Coliver, 19 Emory Int’l L. Rev. at 192-99; Ku, 19 Emory Int’l L. Rev. at 110-14. These claims against government officials are often dismissed on the ground of sovereign immunity, discussed infra, at 61. See In re Guantanamo Bay Detainees Cases, 355 F. Supp. 2d 443 (D.D.C. 2005) (dismissing ATS claims by detainees on sovereign immunity grounds); Elmaghraby v. Ashcroft, 2005 U.S. Dist. LEXIS 21434 at *113 (E.D.N.Y. 2005) (dismissing the ATS claims by Muslim detainees at a Brooklyn, N.Y. facility on sovereign immunity grounds after the substitution of he U.S. for individual defendants).

Alien plaintiffs may run into another difficulty when attempting to sue the U.S. government under the ATCA for torts committed by the government itself. In Jama v. United States INS, the plaintiffs were alien asylum seekers detained at a detention facility in New Jersey. 343 F. Supp. 2d 338 (D.N.J. 2004). The facility was run by a private corporation under contract with the Immigration and Naturalization Service (INS). The plaintiffs claimed that while they were in detention, they were subjected to various forms of abuse amounting to cruel, inhuman, and degrading treatment. Id. at 347-48. The court denied a summary judgment motion by the contractor and its employees, holding that there is a universal consensus in international law that “the inhumane treatment of a huge number of persons accused of no crime and held in confinement is a violation of the law of nations,� and sufficient to support a cause of action under the ATS. Id. at 361. This right of action against private entities, however, is not guaranteed. The U.S. Supreme Court in Correctional Services Corp. v. Malesko, 534 U.S. 61 (2001), held, 5 to 4, that there was no implied right of action, pursuant to Bivens v. Six Unknown Named FBI Agents, 403 U.S. 388 (1971), for damages against private entities that allegedly engaged in unconstitutional conduct while acting under color of federal law.

Another obstacle to suing the government under the ATCA is the Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346(b)(1) (2006). Subject to the exceptions listed in 28 U.S.C. § 2680 (2006), the FTCA serves as a waiver of the government’s sovereign immunity and gives federal district courts jurisdiction over suits for personal injury caused by acts of employees of the government who are acting within the scope of their office. One exception to the FTCA’s waiver of sovereign immunity is for any claim “arising in a foreign country.� In Sosa, Alvarez sued the United States and four DEA agents under the FTCA, seeking damages for false arrest. Sosa v. Alvarez-Machain, 542 U.S. 692, 698 (2004). The Ninth Circuit, in concluding that Alvarez’s action against the U.S. Government could continue, relied on the “headquarters doctrine,� which allows suits against the government for the tortious conduct of its agents in another country so long as significant planning or training took place in the United States. Id. at 701. In reversing, the Supreme Court noted that an analysis of proximate cause is necessary “to connect the domestic breach of duty (at headquarters) with the action in the foreign country . . . producing the foreign harm or injury.� Id. at 703. Proximate cause, however, is not “sufficient of itself to bar application of the foreign country exception . . . [A]ssuming that the direction by DEA officials in California was a proximate cause of the abduction, the actions of Sosa and others in Mexico were just as surely proximate causes , as well.� Id. at 704. Further, the use of the headquarters doctrine would have jurisdictional and choice of law consequences that Congress did not intend. Id. at 711-12. Hence, in dismissing Alvarez’s false arrest claim, the Supreme Court substantially restricted or even abandoned the headquarters doctrine. Accordingly, the “FTCA’s foreign country exception bars all claims based on any injury suffered in a foreign country, regardless of where the tortious act or omission occurred.� Id. at 712.

9. A number of cases dealing with the holocaust have been brought under the ATS. In the 1930s, Nazis began to take advantage of Swiss bank secrecy laws and made deposits of “Nazi gold� that had been stolen from victims and treasuries of conquered countries. Swiss bankers were aware that the gold did not belong to the Nazis. In addition, some European Jews opened bank accounts with the Swiss banks, and after the war, the banks refused to recognize claims of survivors or their heirs. Audits of Swiss banks revealed they had 4.1 million dormant bank accounts; the names of these account holders were correlated with names of Holocaust victims.

In October 1996, class actions were filed against Swiss banks in U.S. courts to recover the bank accounts of Holocaust victims. The jurisdictional basis for the law suits included the Alien Tort Statue. One case was filed by U.S. citizens; the other was filed by foreign nationals. The court denied a motion to dismiss on grounds of statute of limitations, personal jurisdiction, and forum non conveniens. In August 1998 the Swiss class action cases were settled for $1.25 billion. As part of the settlement, class members released Swiss banks, the Swiss government, and every private Swiss citizen and entity, except Swiss insurance companies and Swiss art museums and collectors. See Shaw W. Scott, Note, Taking Riggs Seriously: The ATCA Case Against a Corporate Abettor of Pinochet Atrocities, 89 Minn. L. Rev. 1497, 1519-21 (2005); www.swissbankclaims.com.

In the 1930s European insurance companies sold insurance policies targeted at the Jewish middle class. After World War II, these insurance companies required proof of death from families that made insurance claims for their relatives who died in the Holocaust. The companies denied claims asserting that there was no proof of death. A class action was filed in federal court in the Southern District of New York that resulted in settlement creating the International Commission for Holocaust-Era Insurance Claims headed by Lawrence Eagleburger, former U.S. Secretary of State. The Commission spent $55 million in administering the claims and paid out $35 million of claims. See Burt Neuborne, 2002 Institute for Law and Economic Policy Litigation Conference: Litigation in a Free Society: Preliminary Reflections on Aspects of Holocaust-Era Litigation in American Courts, 80 Wash. U. L. Q. 795 (2002).

10. The Second Circuit significantly expanded the scope of the ATCA in Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995). The Court of Appeals decision deals with two cases against Radovan Karadzic, a civilian commander of Bosnian forces during the civil war and the self-proclaimed head of the Bosnian Serbian republic. Both cases are reported at 70 F.3d 232. The plaintiffs in Kadic v. Karadzic were Croat and Muslim women who had been raped and otherwise tortured by Bosnian Serb military forces during the Bosnian civil war. Id. at 236-37. Doe v. Karadzic was an ATCA suit on behalf of women, men, and children who were victims of genocide, war crimes, crimes against humanity, and other human rights abuses committed by both military and militia under Karadzic’s command. The court held that the scope of the ATCA is not limited to claims involving state actors. Certain acts, the court declared, “violate the law of nations whether undertaken by those acting under the auspices of a state or only as private individuals.� Id. at 239. Examples of conduct not requiring state involvement include genocide and certain war crimes. Id. at 241-42. The court, however, found that torture does require state action. Id. at 243-44. The court also determined that a de facto state, one which has not been officially recognized by other states, could be held responsible for acts such as torture. Id. at 244-45. While concurring in the judgment of Sosa, Justice Scalia cited this case as an example of why the ATS should not be interpreted as allowing any new causes of action beyond those recognized in 1789. Sosa, 542 U.S. at 748-49 (Scalia, J., concurring) (“The Second Circuit, which started the Judiciary down the path the Court today tries to hedge in, is a good indicator of where that path leads us: directly into confrontation with the political branches.�).

11. What is the value of ATCA cases? Professor Joan Fitzpatrick concluded that:

This two-hundred-year-old statute is beginning to achieve its full flowering not only as a vehicle for vindicating the rights of victims of extreme tortious conduct but also as an emblem of United States commitment to respect for principles of customary international law and faithful provision of judicial remedies for its breach, despite the cynicism, indifference, or impotence of other states and international institutions. While class action ATCA suits present new dilemmas for human rights lawyers, these dilemmas are not markedly different from those faced by other lawyers involved in public interest or institutional reform litigation. The recently-filed ATCA suits against Radovan Karadzic, concerning gross human rights and humanitarian law violations in Bosnia-Herzegovina, present both a beacon of hope and a challenging opportunity to advance understanding of the ATCA and its role in the system for international protection of human rights.

The Future of the Alien Tort Claims Act of 1789: Lessons from In Re Marcos Human Rights Litigation, 67 St. John’s L. Rev. 491, 521 (1993)

If only some goals or benefits of ATCA lawsuits can be satisfied by an uncollectible default judgment, why bother with lawsuits? Are there other ways of achieving those objectives that do not involve courts? How does a single ATCA suit fit the pattern of strategies available for pursuing human rights objectives?

Can you justify using international law in U.S. courts to compensate victims of actions legal in countries where they occur? The ATCA does not require plaintiffs to sue in such a country before suing in the U.S.

12. Courts in other countries are more likely to use criminal prosecutions for international human rights violations than purely civil claims. Beth Stephens, Translating Filartiga: A Comparative and International Law Analysis of Domestic Remedies for International Human Rights Violations, 27 Yale J. Int’l L. 1, 2 (2002). While the ATCA and TVPA impose universal jurisdiction for civil claims arising out of international human rights violations, an increasing group of nations allow universal criminal jurisdiction in such cases. Further, in civil law countries injured individuals may intervene to obtain civil remedies in the context of criminal prosecutions. Accordingly, at least some civil law countries can obtain the same result as the ATCA/TVPA through criminal prosecutions together with dependent civil claims. Nonetheless, civil human rights litigation appears to be largely a U.S. phenomenon. Id. at 3. Courts of other countries have recognized that international law does include the right to an effective remedy. For example, in Borovsky v. Commissioner of Immigration, 90 Phil. Rpts. 107 (1951), the Philippine Supreme Court, whose jurisprudence draws heavily on that of the U.S., ordered an excludable alien released from indefinite detention on the ground that his detention violated the customary law reflected in the Universal Declaration of Human Rights. Similarly the German Constitutional Court has declared that though “contemporary generally recognized principles of international law included only a few legal rules that directly create rights and duties of private individuals by virtue of the international law itself� they do create rights and duties in “the sphere of the minimum standards for the protection of human rights.� In the Matter of Republic of the Philippines, 46 BVerfGE 342, 362 (2BvM 1/76 December 13, 1977)

There are several characteristics of the U.S. legal system that make civil litigation more effective than it might be in other countries. First, U.S. courts rely on a “presence is power� theory of personal jurisdiction, and this “tag jurisdiction� allows ATCA claims to be effective. See Burnham v. Superior Court, 495 U.S. 604, 619 (1990) (“[J]urisdiction based on physical presence alone constitutes due process because it is one of the continuing traditions of our legal system that define the due process standard of traditional notions of fair play and substantial justice.� (internal quotes omitted)). Service of process may be made on anyone physically present within the jurisdiction even if they are not domiciled there. Further, non-citizens may sue even those non-citizen defendants who are present in the U.S. illegally, as was the Filartiga defendant, or briefly. Corporations may be served if they have engaged in sufficient activity so as to possess minimum contacts with the jurisdiction. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 292 (1980) (“[A] state court may exercise personal jurisdiction over a nonresident defendant only so long as there exists minimum contacts between the defendant and the forum state.�) (internal quotes omitted). Second, because other countries generally exercise jurisdiction only over individuals or corporations who are incorporated or domiciled within the country, this domicile-based approach to jurisdiciton creates a home-court advantage for those persons or corporations who must defend against ATCA-like lawsuits. Further, U.S. lawyers are allowed to work on a contingent fee basis, which enables victims of human rights abuses, who might lack the resources to pay legal fees in advance, the opportunity to obtain legal counsel and seek relief in court.

The United Kingdom, however, appeared to be ready to open the door in that country to ATS-like claims as well. In Jones v. Saudi Arabia, [2004] EWCA Civ. 1394, the British plaintiffs served a complaint upon the Ministry of the Interior of Saudi Arabia and applied for permission to serve five Saudi officials for torture and assault. The Court of Appeal upheld the dismissal of the Ministry, but reversed the denial of leave to serve the individual officers. Upon remand, the master was directed to consider the possible defenses of forum non conveniens, sufficiency of the defendants’ connections to the U.K. and whether they had assets subject to the court’s jurisdiction. On appeal, the House of Lords reversed the decision of the Court of Appeal. The House of Lords held that the five Saudi officials were acting as agents of the state, and because of this sponsorship, their actions, like those of the Kingdom of Saudi Arabia, are covered by the UK equivalent of the Foreign Sovereign Immunities Act (FSIA), discussed infra at 61. Jones v. Saudi Arabia, [2006] UKHL 26.

Despite the outcome in Jones, several characteristics of the U.K.’s legal system make transnational human rights litigation possible. First, because there is no strict constitutional due process requirements, English courts potentially have greater extraterritorial power than do U.S. courts, including allowing service outside of its jurisdiction if there is a sufficient connection to the U.K. Sarah Joseph, Corporations and Transnational Human Rights Litigation 114 (2004). Further, since customary international law is accepted as being a part of English common law, the English courts are more accustomed to applying customary international law norms then U.S. courts and a civil claim for human rights abuses may be possible. Id. at 115. Additionally, the threshold for dismissal on forum non conveniens grounds is much higher in U.K. courts, requiring that “substantive justice� be achieved in the proposed alternative forum. Id. at 116 (quoting Spiliada Maritime Corp. v. Cansulex, [1987] AC 460, 467 (HL)). For additional discussion regarding the use of forum non conveniens in U.S. human rights litigation, see page 92, infra. Professor Joseph also discusses the possibility of similar actions in Australia and Canada. See Sarah Joseph, supra, at 122-28.

13. The ATCA and the TVPA have served as remedies for human rights violations that are also prohibited by human rights treaties.

Article 2(3) of the Covenant on Civil and Political Rights provides

Each State Party to the present Covenant undertakes:

(a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity . . ..

Should other states adopt legislation similar to the ATCA in order to comply with this obligation? See also Article 3(b) & (c).

14. Several countries, including the U.S., have been attempting to draft a treaty governing jurisdiction and the enforcement of foreign civil judgments. Negotiations of such a convention started in 1992, but these negotiations were stalled over the issue of tag jurisdiction. Many countries viewed personal jurisdiction more narrowly than the U.S. and objected to jurisdiction based merely on presence. In 2002 efforts shifted to develop a narrower convention to meet the desires of the business world for a prompt convention that would provide for enforcement of court judgments for international business. The latter negotiations resulted in the Convention on Choice of Court Agreements (CCCA) that was concluded on June 30, 2005, and is now open for signature and ratification. Given the nature of the controversy which surrounded the issue of personal jurisdiction, the CCCA does not include anything regarding jurisdiction over claims for human rights violations. It has yet to be adopted by any country.

Article 8 of the CCCA requires each Contracting State to recognize and enforce the judicial decisions of other Contracting States, subject to a few exceptions. The court addressed is not allowed to review the merits of the judgment given by the original court, and is bound be the original court’s findings of fact, except where judgment in a case was entered by default. Article 9 sets forth the circumstances in which a court may refuse to enforce the judgment of the original court. Enforcement may be refused when, inter alia, notice is insufficient, when the judgment was obtained by fraud, where enforcement would be counter to the public policy of the requested state, where the judgment is inconsistent with a judgment in the requested state in a dispute between the same parties, or the judgment is inconsistent with an earlier judgment given in another state between the same parties on the same cause of action. Article 11 allows for refusal of recognition of a judgment when the judgment awards damages that do not compensate a party for “actual loss or harm suffered.�

If the United States ratified this convention and implemented in statutes passed by Congress, what effect might these steps have on preventing future human rights abuses?

15. Other U.S. statutes also provide broad jurisdiction over acts committed outside the U.S. Persons who are nationals of the United States or who are physically present in the United States may be prosecuted for acts of torture committed outside the United States. 18 U.S.C. §2340A. This statute was adopted to implement the obligations of the United States under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. res. 39/46, annex, 39 U.N. GAOR Supp. (No. 51) at 197, U.N. Doc. A/39/51 (1984), entered into force June 26, 1987, and for the U.S. Nov. 20, 1994. The Hostage Taking Act, 18 U.S.C. § 1203, criminalizes the taking of hostages inside or outside the U.S. If the hostage-taking occurred outside the U.S., the statute requires that the offender either be a U.S. national or be found in the U.S., that the hostage be a U.S. national, or that the hostage-taking be designed to compel the U.S. to do or abstain from any act. Id. The provisions also parallel the ATCA in that they authorize federal courts to adjudicate claims arising from actions occurring outside the U.S. between aliens, provided the alien defendant is in the U.S. at the time he is served.

United States v. Yunis, 924 F.2d 1086 (D.C. Cir. 1991), upheld the constitutionality of the Hostage Taking Act. The court rejected arguments that international law had not yet recognized hostage-taking as a crime and, therefore, that international law precluded personal jurisdiction under the Act. Id. at 1091. The court affirmed an alien’s conviction for hijacking a Jordanian flight departing from Lebanon on the ground that two of the hostages were U.S. citizens. Id. at 1090-91. The court did not rule on the claim that the defendant was not “found� in the U.S. because he was seized in international waters and then brought forcibly to the U.S. Id. at 1090.

In 2001 Congress provided a civil remedy for victims of international terrorism when it enacted 18 U.S.C. § 2333 as part of the Anti-Terrorism Act (ATA). Section 2333(a) provides that “[a]ny national of the United States injured in his or her person, property, or business by reason of an act of international terrorism . . . may sue therefor in any appropriate district court of the United States.� Plaintiffs must allege that they were injured by reason of a crime that constitutes an act of international terrorism in order to properly state a claim for relief. Section 2331(1) defines international terrorism to include violent acts that violate the laws of the United States which “appear to be intended� to intimidate civilians, influence government policy by intimidation or coercion, or affect the conduct of the government by means of assassination or kidnaping. These acts must occur primarily outside the territorial jurisdiction of the United States, or “transcend national boundaries in terms of the means by which they are accomplished.�

See also Kenneth C. Randall, Universal Jurisdiction Under International Law, 66 Tex. L. Rev. 785, 815-34 (1988) (discussing universal jurisdiction for human rights violations).

16. For additional readings, see:

William J. Aceves, Alien Tort Claims Act - Foreign Sovereign Immunities Act - act of state doctrine - crimes against humanity - forced labor - torture - cruel, inhuman or degrading treatment - violations of international law by nonstate actors - liability of private companies for human rights violations, 92 Am. J. Int’l L. 309 (1998);

Michael J. Bazyler, Holocaust Justice: The Battle for Restitution in America’s Courts (2003);

Anne-Marie Burley, The Alien Tort Statute and the Judiciary Act of 1789: A Badge of Honor, 83 Am. J. Int’l L. 461 (1989);

Sandra Coliver & Jennie Green & Paul Hoffman, Holding Human Rights Violators Accountable by Using International Law in U.S. Courts: Advocacy Efforts and Complementary Strategies, 19 Emory Int’l L. Rev. 169 (2005);

William S. Dodge, The Historical Origins of the Alien Tort Statue: A Response to the ‘Originalists,’ 19 Hastings Int’l & Comp. L. Rev. 221 (1996);

William S. Dodge, Bridging Erie: Customary International Law After Sosa v. Alvarez-Machain, 12 Tulsa J. Comp. & Int’l L. 87 (2004);

Joan Fitzpatrick, The Future of the Alien Tort Claims Act of 1789: Lessons from In Re Marcos Human Rights Litigation, 67 St. John’s L. Rev. 491 (1993);

Virginia Monken Gomez, Note, The Sosa Standard: What Does It Mean for Future ATS Litigation?, 33 Pepp. L. Rev. 469 (2006);

Mark Gibney, Katarina Tomasevski & Jens Vested Hansen, Transnational State Responsibility for Violations of Human Rights, 12 Harv. Hum. Rts. J. 267 (1999);

Sarah Joseph, Corporations and Transnational Human Rights Litigation (2004);

Julian G. Ku, The Third Wave: The Alien Tort Statute and the War on Terrorism, 19 Emory Int’l L. Rev. 105 (2005);

Burt Neuborne, 2002 Institute for Law and Economic Policy Litigation Conference: Litigation in a Free Society: Preliminary Reflections on Aspects of Holocaust-Era Litigation in American Courts, 80 Wash. U. L. Q. 795 (2002);

Margaret G. Perl, Note, Not Just Another Mass Tort: Using Class Actions to Redress International Human Rights Violations, 88 Geo. L.J. 773 (2000);

Kenneth C. Randall, Federal Jurisdiction Over International Law Claims: Inquiries into the Alien Tort Claims Statute, 18 N.Y.U. J. Int’l L. & Pol. 1 (1985);

Kenneth C. Randall, Federal Questions and the Human Rights Paradigm, 73 Minn. L. Rev. 349 (1988);

Steven R. Ratner, Accountability for Human Rights Atrocities in International Law: Beyond the Nuremberg Legacy (2001);

Grace C. Spencer, Her Body is a Battlefield: The Applicability of the Alien Tort Statute to Corporate Human Rights Abuses in Juarez, Mexico, 40 Gon. L. Rev. 503 (2004);

Ralph G. Steinhardt & Anthony A. D’Amato, The Alien Tort Claims Act: An Analytical Anthology (1999);

Ralph G. Steinhardt, Fulfilling the Promise of Filartiga: Litigating Human Rights Claims Against the Estate of Ferdinand Marcos, 20 Yale J. Int’l L. 65 (1995);

Beth Stephens, Upsetting Checks and Balances: The Bush Administration’s Efforts to Limit Human Rights Litigation, 17 Harv. Hum. Rts. J. 169 (2004);

Beth Stephens, Comment, Sosa v. Alvarez-Machain “The Door is Still Ajar� for Human Rights Litigation in U.S. Courts, 70 Brooklyn L. Rev. 533 (2004);

Beth Stephens, Translating Filartiga: A Comparative and International Law Analysis of Domestic Remedies for International Human Rights Violations, 27 Yale J. Int’l L. 1 (2002);

Beth Stephens, Human Rights Accountability: Congress, Federalism and International Law, 6 ILSA J. Int’l & Comp. L. 277 (2000);

Joseph M. Sweeney, A Tort Only in Violation of the Law of Nations, 18 Hastings Int’l & Comp. L. Rev. 445 (1995).

Linda A. Willett, The Alien Tort Statute and Its Implications for Multinational Corporations (2003);

See also Gary B. Born & David Westin, International Civil Litigation in United States Courts, Commentary & Materials (2d ed. 1992) (discussing the procedural aspects of international litigation); Jonathan Pratter & Joseph R. Profaizer, A Practitioner’s Research Guide and Bibliography to International Civil Litigation, 28 Tex. Int’l L.J. 633 (1993).

For an early article recommending suits by alien human rights victims in U.S. courts see David Weissbrodt, Domestic Legal Activity in Furtherance of International Human Rights Goals, in Implementing International Human Rights Through the Domestic Legal Process 10, 17-18 (John Bassett Moore Soc’y of Int’l Law, 1975).

2. Corporate Liability Under the ATCA

As stated supra, at 29, a number of actions have been brought under the ATCA against corporations for their alleged participation in human rights abuses by foreign governments. The decision in Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995), discussed supra, at 30, allowing ATCA claims against non-state actors suggests that it is possible for plaintiffs to sue corporations under the ATCA. Kadic holds that a non-state actor can be liable for violating human rights norms that apply to private actors or for acting in concert with governments that violate human rights. See Beth Stephens, Human Rights Accountability: Congress, Federalism and International Law, 6 ILSA J. Int’l & Comp. L. 277, 284-85 (2000).

Suing corporations rather than states is attractive to plaintiffs for several reasons. First, since corporations are often more than just transitorily present in a state, it may be easier to establish personal jurisdiction over them than over a government official or state. Second, corporations may have more assets that can be used to satisfy a judgment. Third, governmental immunities, such as the act of state doctrine, may be more difficult to apply to corporations. See Kathryn L. Boyd, Collective Rights Adjudication in U.S. Courts: Enforcing Human Rights at the Corporate Level, 1999 BYU. L. Rev. 1139, 1144-45.

In these cases, corporate officials are generally not accused of committing human rights violations themselves, but rather that corporate involvement in some way facilitated or encouraged the perpetration of these abuses. Corporate liability under the ATCA is generally analyzed in one of two ways: through the application of traditional third-party liability theories common to torts cases, or aiding and abetting liability common in criminal cases.

One of the first cases to accept explicitly the notion that plaintiffs could sue corporations was Doe v. Unocal Corp., 963 F. Supp. 880, 891-92 (C.D. Cal. 1997). In that case displaced farmers from the Tenasserim region of Burma sued two corporations over their involvement in the construction of an oil pipeline. The farmers claimed the corporations and the military government of Burma enslaved the farmers and stole their land. Id. at 883. Later decisions involving the same parties illustrate some of the setbacks that can accompany suits against corporations. In Doe v. Unocal Corp., 27 F. Supp. 2d 1174 (C.D. Cal. 1998), one of the defendants, Total, a French corporation, moved to dismiss for lack of personal jurisdiction. The court granted the motion, holding that Total lacked sufficient contacts with California. Id. at 1190. In Doe v. Unocal Corp., 110 F. Supp. 2d 1294 (C.D. Cal. 2000), the court granted Unocal’s motion to dismiss. The court decided that there were
no facts suggesting that Unocal sought to employ forced or slave labor. In fact, the Joint Venturers [including Unocal] expressed concern that the Myanmar government was utilizing forced labor in connection with the Project. In turn, the military made efforts to conceal its use of forced labor. The evidence does suggest that Unocal knew that forced labor was being utilized and that the Joint Venturers benefitted from the practice. However, because such a showing is insufficient to establish liability under international law, Plaintiffs’ claim against Unocal for forced labor under the Alien Tort Claims Act fails as a matter of law.

Id. at 1310. The plaintiffs appealed.

* * * * *

Doe I v. Unocal Corp., 395 F.3d 932 (9th Cir. 2002) (footnotes and several citations omitted):

PREGERSON, Circuit Judge: . . .

2. Forced Labor

a. Forced labor is a modern variant of slavery to which the law of nations attributes individual liability such that state action is not required.

Our case law strongly supports the conclusion that forced labor is a modern variant of slavery. Accordingly, forced labor, like traditional variants of slave trading, is among the “handful of crimes . . . to which the law of nations attributes individual liability,� such that state action is not required.

Courts have included forced labor in the definition of the term “slavery� in the context of the Thirteenth Amendment. The Supreme Court has said that “the undoubted aim of the Thirteenth Amendment . . . was not merely to end slavery but to maintain a system of completely free and voluntary labor throughout the United States.� Accordingly, “it has been held that forced labor of certain individuals amounts to involuntary servitude and therefore is violative of the thirteenth amendment.�

The inclusion of forced labor in the definition of the term “slavery� is not confined to the Thirteenth Amendment but extends, for example, to 18 U.S.C. § 1583. 18 U.S.C. § 1583 was introduced in 1866 to prevent the kidnaping of former slaves to countries which still permitted slavery. The Fourth Circuit has said that “notwithstanding this limited purpose, the statute should be read as expressing the broad and sweeping intention of Congress during the Reconstruction period to stamp out the vestiges of the old regime of slavery and to prevent the reappearance of forced labor in whatever new form it might take.�

In World War II Era Japanese Forced Labor Litig., 164 F. Supp. 2d 1160, (N.D. Cal. 2001), the District Court for the Northern District of California recently implicitly included forced labor in the definition of the term “slavery� for purposes of the ATCA. There, the district court concluded that . . . slavery constitutes a violation of jus cogens, [and] this court is inclined to agree . . . that forced labor violates the law of nations.�

In light of these authorities, we conclude that forced labor is a modern variant of slavery that, like traditional variants of slave trading, does not require state action to give rise to liability under the ATCA.

b. Unocal may be liable under the ATCA for aiding and abetting the Myanmar Military in subjecting Plaintiffs to forced labor.

Plaintiffs argue that Unocal aided and abetted the Myanmar Military in subjecting them to forced labor. We hold that the standard for aiding and abetting under the ATCA is, as discussed below, knowing practical assistance or encouragement that has a substantial effect on the perpetration of the crime. We further hold that a reasonable factfinder could find that Unocal’s conduct met this standard.

The District Court found that “the evidence . . . suggests that Unocal knew that forced labor was being utilized and that the Joint Venturers benefitted from the practice.� The District Court nevertheless held that Unocal could not be liable under the ATCA for forced labor because Unocal’s conduct did not rise to the level of “active participation� in the forced labor. The District Court incorrectly borrowed the “active participation� standard for liability from war crimes cases before Nuremberg Military Tribunals involving the role of German industrialists in the Nazi forced labor program during the Second World War. The Military Tribunals applied the “active participation� standard in these cases only to overcome the defendants’ “necessity defense.� In the present case, Unocal did not invoke -- and could not have invoked -- the necessity defense. The District Court therefore erred when it applied the “active participation� standard here.

We however agree with the District Court that in the present case, we should apply international law as developed in the decisions by international criminal tribunals such as the Nuremberg Military Tribunals for the applicable substantive law. “The law of nations ‘may be ascertained by consulting the works of jurists, writing professedly on public law; or by the general usage and practice of nations; or by judicial decisions recognizing and enforcing that law.’ “ Filartiga v. Pena-Irala, 630 F.2d 876, 880 (2d Cir. 1980) (quoting United States v. Smith, 18 U.S. (5 Wheat.) 153, 160-61 (1820)) (emphasis added). It is “well settled that the law of nations is part of federal common law.� Marcos I, 978 F.2d at 502.

In different ATCA cases, different courts have applied international law, the law of the state where the underlying events occurred, or the law of the forum state, respectively. Unocal urges us to apply not international law, but the law of the state where the underlying events occurred, i.e., Myanmar. Where, as in the present case, only jus cogens violations are alleged -- i.e., violations of norms of international law that are binding on nations even if they do not agree to them -- it may, however, be preferable to apply international law rather than the law of any particular state, such as the state where the underlying events occurred or the forum state. The reason is that, by definition, the law of any particular state is either identical to the jus cogens norms of international law, or it is invalid. . . .

Application of international law -- rather than the law of Myanmar, California state law, or our federal common law -- is also favored by a consideration of the factors listed in the Restatement (Second) of Conflict of Laws § 6 (1969). First, “the needs of the . . . international system[]� are better served by applying international rather than national law. Second, “the relevant policies of the forum� cannot be ascertained by referring -- as the concurrence does -- to one out-of-circuit decision which happens to favor federal common law and ignoring other decisions which have favored other law, including international law. Third, regarding “the protection of justified expectations,� the “certainty, predictability and uniformity of result,� and the “ease in the determination and application of the law to be applied,� we note that the standard we adopt today from an admittedly recent case nevertheless goes back at least to the Nuremberg trials and is similar to that of the Restatement (Second) of Torts. Finally, “the basic policy underlying the particular field of law� is to provide tort remedies for violations of international law. This goal is furthered by the application of international law, even when the international law in question is criminal law but is similar to domestic tort law, as discussed in the next paragraph. We conclude that given the record in the present case, application of international law is appropriate.

International human rights law has been developed largely in the context of criminal prosecutions rather than civil proceedings. See Beth Stevens, Translating Filartiga: A Comparative and International Law Analysis of Domestic Remedies for International Human Rights Violations, 27 Yale J. Int’l L. 1, 40 (2002). But what is a crime in one jurisdiction is often a tort in another jurisdiction, and this distinction is therefore of little help in ascertaining the standards of international human rights law. Moreover . . ., the standard for aiding and abetting in international criminal law is similar to the standard for aiding and abetting in domestic tort law, making the distinction between criminal and tort law less crucial in this context. Accordingly, District Courts are increasingly turning to the decisions by international criminal tribunals for instructions regarding the standards of international human rights law under our civil ATCA. We agree with this approach. We find recent decisions by the International Criminal Tribunal for the former Yugoslavia and . . . Rwanda especially helpful for ascertaining the current standard for aiding and abetting under international law as it pertains to the ATCA.

In Prosecutor v. Furundzija, the International Tribunal for the former Yugoslavia held that “the actus reus of aiding and abetting in international criminal law requires practical assistance, encouragement, or moral support which has a substantial effect on the perpetration of the crime.� The Tribunal clarified that in order to qualify, “assistance need not constitute an indispensable element, that is, a conditio sine qua non for the acts of the principal.� Rather, it suffices that “the acts of the accomplice make a significant difference to the commission of the criminal act by the principal.� The acts of the accomplice have the required “[substantial] effect on the commission of the crime� where “the criminal act most probably would not have occurred in the same way [without] someone acting in the role that the [accomplice] in fact assumed.�

Similarly, in Prosecutor v. Musema, the International Criminal Tribunal for Rwanda described the actus reus of aiding and abetting as “all acts of assistance in the form of either physical or moral support� that “substantially contribute to the commission of the crime�.

As for the mens rea of aiding and abetting, the International Criminal Tribunal for the former Yugoslavia held that what is required is actual or constructive (i.e., “reasonable�) “knowledge that [the accomplice’s] actions will assist the perpetrator in the commission of the crime.� Thus, “it is not necessary for the accomplice to share the mens rea of the perpetrator, in the sense of positive intention to commit the crime.� In fact, it is not even necessary that the aider and abettor knows the precise crime that the principal intends to commit. Rather, if the accused “is aware that one of a number of crimes will probably be committed, and one of those crimes is in fact committed, he has intended to facilitate the commission of that crime, and is guilty as an aider and abettor.� . . .

The Furundzija standard for aiding and abetting liability under international criminal law can be summarized as knowing practical assistance, encouragement, or moral support which has a substantial effect on the perpetration of the crime. At least with respect to assistance and encouragement, this standard is similar to the standard for aiding and abetting under domestic tort law. Thus, the Restatement [Second] of Torts [ § 876] states: “For harm resulting to a third person from the tortious conduct of another, one is subject to liability if he . . . (b) knows that the other’s conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself . . . .� Especially given the similarities between the Furundzija international criminal standard and the Restatement domestic tort standard, we find that application of a slightly modified Furundzija standard is appropriate in the present case. In particular, given that there is . . . sufficient evidence in the present case that Unocal gave assistance and encouragement to the Myanmar Military, we do not need to decide whether it would have been enough if Unocal had only given moral support to the Myanmar Military. Accordingly, we may impose aiding and abetting liability for knowing practical assistance or encouragement which has a substantial effect on the perpetration of the crime, leaving the question whether such liability should also be imposed for moral support which has the required substantial effect to another day. . . .

. . . [W]e REVERSE the District Court’s grant of summary judgment in favor of Unocal on Plaintiffs’ ATCA claims for forced labor, murder, and rape. . . .

* * * * *

In his concurrence, Judge Reinhardt looked to “traditional civil tort principles of federal common law� in determining third-party liability in ATCA claims. Id. at 965 (Reinhardt, J., concurring). Federal common law is the appropriate law to apply for two reasons: first, federal courts ordinarily apply federal common law to international law claims; and second, this is a case which requires the resolution of issues ancillary to a cause of action created by congress, and federal courts should apply federal common law to “fill the interstices of federal legislation.� Id. at 965-66 (quoting United States v. Kimbell Foods, 440 U.S. 715, 727 (1979)).

Judge Reinhardt then looked to three established principles of federal common law vicarious liability: joint venture, agency, and reckless disregard. Joint liability exists where “(1) parties intended to form a joint venture; (2) parties share a common interest in the subject matter of the venture; (3) the parties share the profits and losses of the venture; and (4) the parties have joint control or the joint right of control over the venture.� Id. at 970, n. 11. A question of fact existed in this case over whether Unocal and Myanmar were joint venturers. An agency relationship “may be express or implied; in addition, a jury may infer from the factual circumstances that apparent agency authority exists.� Id. at 972. The plaintiffs in this case alleged that the Myanmar military acted as agents of Unocal, and that is also a question of fact. Id. There are two types of reckless disregard, objective and subjective. Objective reckless disregard occurs when someone who acts or, if a person has a duty fails to act, in the face of an unjustifiably high risk that is either known or should have been known. Id. at 974. Subjective reckless disregard exists where one has actual knowledge of a substantial risk which he or she subsequently disregards. Id. Again, plaintiffs in this case plead sufficient facts to necessitate a trial. Id.

This decision was subsequently vacated when the Ninth Circuit granted the petition for rehearing en banc in Doe I v. Unocal Corp., 395 F.3d 978 (9th Cir. 2003). Before the en banc court issued a new opinion, however, the appeal was dismissed. Doe I v. Unocal, 403 F.3d 708 (9 th Cir. 2005). Pursuant to a settlement, which was encouraged by the Supreme Court’s decision in Sosa, Unocal compensated the plaintiffs and provided funds to develop programs to improve living conditions, health care, and education in the pipeline region in Myanmar and to protect the rights of the people in that region. See William Baue, Unocal Alien Tort Claims Act Case Settlement Boosts Corporate Accountability, available at http://www.socialfunds.com/news/article.cgi/article1591.html (Dec. 16, 2004). Soon after the settlement, Unocal was acquired by ChevronTexaco. The settlement of the law suit may have been one of the conditions prior to sale of the company.

NOTES AND QUESTIONS

1. The 9th Circuit again faced the issue of corporate liability under the ATCA in Sarei v. Rio Tinto, PLC, 2006 U.S. App. LEXIS 20174. As in Unocal, the court in Sarei held that corporations can be held vicariously liable under the ATCA for violations of jus cogens norms. Id. at *16. During the 1960s, Rio Tinto asked the Government of Papua New Guinea for permission to build a mine in Bougainville, an island province. Rio Tinto would give the government a nineteen percent share of the profits from the mine. In 1972, the mine opened, and Rio Tinto employed a number of Bougainvilleans, all of whom were black. These employees were paid lower wages than white workers, and lived in “slave-like� conditions. Id. at *6. In 1988, the Bougainvilleans engaged in acts of sabatoge which forced the mine to close. In response, Rio Tinto sought the assistance of the Papua New Guinea Government to quell the uprising and reopen the mine. The army attacked in 1990, and in response, Bougainvilleans called for succession from Papua New Guinea. A ten year civil war ensued. Plaintiffs alleged that during this civil war, the Government of Papua New Guinea committed various human rights abuses at the behest of Rio Tinto, including a blockade, burning of villages, rape, and the aerial bombardment of civilian targets. Id.

The court noted that violations of the law of nations have always encompassed vicarious liability, citing an a 1795 opinion of the Attorney General which stated that those who aid or abet “hostilities . . . “render themselves liable to punishment under the laws of nations.� Id. n.5 (quoting 1 Op. Att’y Gen. 57, 59 (1795)). Further, Congress passed a specific statute criminalizing aiding and abetting piracy, one of Sosa’s paradigmatic violations of the law of nations. Id. The plaintiffs alleged that Rio Tinto “knew that its wishes were taken as commands by the PNG government and Rio intended that its comments would spur the PNG forces into action,� and that Rio “understood that . . . [i]f Rio did not direct and/or encourage a military response. . . none would have been initiated.� Id. at *17. As this was a review of Rio Tinto’s motion for summary judgment, the appellate court had to accept these allegations as true. Hence, plaintiffs had sufficiently alleged vicarious liability for Rio Tinto’s violation of jus cogens norms.

2. Plaintiffs who sue corporations under the ATCA may attempt to hold those corporations responsible for human rights violations committed by state actors under vicarious liability. Vicarious liability imposes liability on one person or entity for the tortious conduct of another, based solely on the relationship between the two persons. Respondeat superior is a form of vicarious liability that allows a plaintiff to hold an employer responsible for the torts of an employee/agent if the torts are committed within the scope of employment or other relationship. The majority of courts impose respondeat superior liability for a principal who has a right of control vis-a-vis its agent or employee who has committed a tort. A significant minority of jurisdictions impose respondeat superior liability for a principal which has a greater capacity to control the risk, bear the risk, and spread the risk of harm, and who also benefits from the activities of the tortious agent/employee. Another vicarious liability theory rests upon a showing of joint enterprise, in which the plaintiff must generally establish four requisites:

(1) an agreement, express or implied, among the members of the group; (2) a common purpose to be carried out by the group; (3) a community of pecuniary interest in that purpose, among the members; and (4) an equal right to a voice in the direction of the enterprise, which gives an equal right of control.

Restatement (Second) of Torts § 491 cmt. c (1965).

In Jama v. United States INS, discussed supra, page 29, the court held Esmor, the company which ran the detention center, could be liable for the human rights abuses of their employees under the doctrine of respondeat superior. Plaintiffs, undocumented aliens seeking asylum in the U.S., alleged that Esmor’s guards had beaten, humiliated, and sexually abused them. Jama, 343 F. Supp. 2d at 353 The court noted that there is widespread consensus in the international community that this sort of treatment towards detainees who had committed no crime violated the law of nations. Id. at 361. According to the court, “under the doctrine of respondeat superior the actions of Esmor guards and officers may be attributed to Esmor.� Id. at 352.

As a general rule, someone who hires an independent contractor is not liable for the torts of the contractor. This rule does not apply to non-delegable duties, duties of care that are considered so important they cannot be shifted onto another person. See, e.g., Maloney v. Rath, 445 P.2d 513 (Cal. 1968). Do any of these theories apply to the hypothetical case presented at the beginning of the chapter?

3. In Presbyterian Church, the court cites favorably the International Criminal Tribunal for Rawanda (ICTR). The ICTR, in its judgment in Prosecutor v. Akayesu, Case No. ICTR-9-4-T, Judgment of 2 September 1998, available at http://www.un.org/ictr; summary of judgment at 37 I.L.M. 1399 (1998), held:

538. The intent or mental element of complicity implies in general that, at the moment he
acted, the accomplice knew of the assistance he was providing in the commission of the
principal offence. In other words, the accomplice must have acted knowingly.

539. Moreover, as in all criminal Civil law systems, under Common law, notably English
law, generally, the accomplice need not even wish that the principal offence be committed. In the case of National Coal Board v. Gamble [National Coal Board v. Gamble, [1959] 1 QB 11], Justice Devlin stated

“an indifference to the result of the crime does not of itself negate abetting. If
one man deliberately sells to another a gun to be used for murdering a third,
he may be indifferent about whether the third lives or dies and interested only [in]
the cash profit to be made out of the sale, but he can still be an aider and
abettor.�

In 1975, the English House of Lords also upheld this definition of complicity, when it held that willingness to participate in the principal offence did not have to be established [DPP for Northern Ireland v. Lynch, [1975] AC 653]. As a result, anyone who knowing of another’s criminal purpose, voluntarily aids him or her in it, can be convicted of complicity even though he regretted the outcome of the offence.

See also Regina v. Bainbridge, [1959], 3 W.L.R. 656 (CCA) (upholding the conviction of a supplier of blow torch equipment as an accessory to the crime for selling the equipment to a person known to intend to use the blow torch for breaking into a bank); Andrew Clapham, Towards a common understanding of business complicity in human rights abuses (2001); Andrew Clapham & Scott Jerbi, On Complicity (2001).

Should the offense of “aiding and abetting� require a different sort of intent from the offense of conspiracy? See Shaw v. DPP, [1962] A.C. 220 (defendant convicted of conspiracy to corrupt public morals and living on the earnings of prostitutes when he published a directory of the names, addresses, and talents of prostitutes); People v. Lauria, 251 Cal. App. 2d 741, 59 Cal. Rptr. 628 (1967) (running an answering service used by prostitutes and aware of its use); Pinkerton v. U. S., 328 U.S. 640 (1946) (each conspirator may be liable for acts of every other conspirator done in furtherance of the conspiracy).

4. In Doe v. Exxon Mobil Corp., eleven Indonesian citizens brought suit against defendant oil company. Doe v. Exxon Mobil Corp., 393 F. Supp. 2d 20 (D.D.C. 2005). The defendant in this case allegedly contracted units of the Indonesian army, conditioned payment on providing security, made decisions about where to build bases, hired mercenaries to train troops, and provided logistical support. Defendant moved for dismissal for lack of subject matter jurisdiction and failure to state a claim upon which relief could be granted. Plaintiffs alleged a number of potential violations of the law of nations, including genocide, torture, crimes against humanity, arbitrary detention, extrajudicial killing, and sexual violence. In dismissing plaintiffs’ claims, the court relied on In re South Af. Apartheid Litig., supra, at 28, which held that:

liability for “aiding and abetting� violations of international law was not itself actionable under the Alien Tort Statute. In reaching its conclusion, the court was “heedful of the admonition in Sosa that Congress should be deferred to with respect to innovative interpretations� of the Alien Tort Statute. The court also was “mindful of the collateral consequences and possible foreign relations repercussions that would result from allowing courts in this country to hear civil suits for the aiding and abetting of violations of international norms across the globe.�

Id. at 24 (quoting In re South Af. Apartheid Litig., 346 F. Supp. 2d 538, 551 (S.D.N.Y. 2004)).

Was the court suggesting that the ATS does not allow claims based on third-party liability theories, or did it hold that interpreting the ATS to include third-party liability is non-justiciable under the political question doctrine? Are either correct?

5. In order for an aiding and abetting claim to be actionable, the conduct alleged must first rise to the level of a valid claim under the ATCA. In the case of Corrie v. Caterpillar, plaintiffs alleged that the demolition of their homes by Israeli soldiers with tractors supplied by the defendant constituted “war crimes� in violation of the Fourth Geneva Convention. Corrie v. Caterpillar, 403 F. Supp. 2d 1019, 1023 (W.D. Wash. 2005). Hence, the court had to answer two question in deciding this case: first, whether the demolition of homes by Israeli soldiers constituted “war crimes� in violation of the law of nations; and second, whether Caterpillar’s sale of tractors to the government of Israel was sufficient to support the plaintiff’s third-party liability claim. As to the first question, the court held that the sale “of a legal, non-defective product to Israel� does not meet Sosa’s standard. Id. at 1026. As to the second question, the court notes that international law does recognize accomplice liability in some circumstances, however “the conduct alleged must first rise to the level of a claim under Sosa.� Id. at 1027. Further, a supplier does not join a venture unless his fortunes rise and fall with that venture. Id. Since Caterpillar only did business with the government of Israel, the court dismissed the plaintiff’s ATS claim.

6. Does customary international law provide for corporate liability for human rights abuses? In Presbyterian Church of Sudan v. Talisman Energy, Inc., 374 F. Supp. 2d 331, 332 (S.D.N.Y. 2005), current and former residents of the Sudan brought a suit against Talisman, a Canadian energy company and the government of Sudan, alleging that they were the victims of genocide, crimes against humanity, and other violations of international law. Talisman moved for judgment on the pleadings, arguing that there was insufficient evidence that customary international law provides either for corporate liability or third-party liability for human rights abuses. Id. Talisman argued that since “no treaty or international tribunal decision imposes liability on corporations for violations of customary international law relating to human rights demonstrates that corporate liability is not part of the customary international law governing violations of jus cogens norms.� Id. at 336. Despite claiming that corporate liability is not a norm of international law, Talisman did not cite any cases where “any government objected to the exercise of jurisdiction over one of its national corporations based on the principle that it is not a violation of international law for corporations to commit or aid in the commission of genocide or other similar atrocities.� Id. at 337. This lack of objection reflected a consensus among the international community, therefore, that corporations, as well as individual actors, can be liable for human rights abuses.

The district court held that Talisman’s assertion that international law norms do not support claims of aiding and abetting liability was also erroneous. The International Criminal Tribunals for Rwanda and the former Yugoslavia supported the conclusion that aiding and abetting human rights abuses violates the law of nations. Id. at 338. The court noted that there is disagreement among courts “at the fringes of customary international law norms,� but that this disagreement does not “impugn the core principles that form the foundation of customary international legal norms.� Id. at 340-41. In denying the defendant’s motion for judgment on the pleadings, the court cites Unocal, supra, at 37, for the principle that it is “settled, core notion of aider and abetter liability in international law� that practical assistance and encouragement which has a substantial effect on the perpetration of human rights abuses is actionable under the ATS. Id. at 340.

7. For further reading on corporations, see:

Michael J. Bazyler, Nuremberg in America: Litigating the Holocaust in United States Courts, 34 U. Rich. L. Rev. 1 (2000);

Barnali Choudhury, Beyond the Alien Tort Claims Act: Alternative Approaches to Attributing Liability to Corporations for Extraterritorial Abuses, 26 NW. J. Int’l L. & Bus. 43 (2005);

Emeka Duruigbo, The Economic Cost of Alien Tort Litigation: A Response to Awakening Monster: The Alien Tort Statute of 1789, 14 Minn. J. Global Trade 1 (2004);

Igor Fuks, Note, Sosa v. Alvarez-Machain and the Future of ATCA Litigation: Examining Bonded Labor Claims and Corporate Liability, 106 Colum. L. Rev. 112 (2006);

International Council on Human Rights Policy, business Wrongs and Rights: human rights and the developing international legal obligations of companies (2001);

Menno T. Kamminga & Saman Zia-Zarifi, eds., Liability of Multinational Corporations Under International Law 119 (2000);

Brad J. Kieserman, Comment, Profits and Principles: Promoting Multinational Corporate Responsibility by Amending the Alien Tort Claims Act, 48 Cath. U. L. Rev. 881 (1999);

Ryan A. Tyz, Comment, Searching for a Corporate Liability Standard Under the Alien Tort Claims Act in Doe v. Unocal, 82 Or. L. Rev. 559 (2003);

Gregory G.A. Tzeutschler, Note, Corporate Violator: The Alien Tort Liability of Transnational Corporations for Human Rights Abuses Abroad, 30 Colum. Hum. Rts. L. Rev. 359 (1999);

Saman Zia-Zarifi, Suing Multinational Corporations in the U.S. for Violating International Law, 4 UCLA J. Int’l L. & Foreign Aff. 81 (1999).

D. TORTURE VICTIM PROTECTION ACT LITIGATION

On March 12, 1992, presumably to codify the result in Filartiga (at least with respect to torture and extrajudicial killing) and to make that result available to U.S. citizens, Congress passed the Torture Victim Protection Act (“TVPA�), excerpted now as follows:

28 U.S.C. § 1350

Sec. 2. Establishment of civil action.

(a) Liability. -- An individual who, under actual or apparent authority, or color of law, of any foreign nation --

(1) subjects an individual to torture shall, in a civil action, be liable for damages to that individual; or

(2) subjects an individual to extrajudicial killing shall, in a civil action, be liable for damages to the individual’s legal representative, or to any person who may be a claimant in an action for wrongful death.

(b) Exhaustion of remedies. -- A court shall decline to hear a claim under this section if the claimant has not exhausted adequate and available remedies in the place in which the conduct giving rise to the claim occurred.

(c) Statute of limitations. -- No action shall be maintained under this section unless it is commenced within 10 years after the cause of action arose.

Sec. 3. Definitions.

(b) Torture. -- For the purposes of this Act --

(1) the term “torture� means any act, directed against an individual in the offender’s custody or physical control, by which severe pain or suffering (other than pain or suffering arising only from or inherent in, or incidental to, lawful sanctions), whether physical or mental, is intentionally inflicted on that individual for such purposes as obtaining from that individual or a third person information or a confession, punishing that individual for an act that individual or a third person has committed or is suspected of having committed, intimidating or coercing that individual or a third person, or for any reason based on discrimination of any kind; and

(2) mental pain or suffering refers to prolonged mental harm caused by or resulting from --

(A) the intentional infliction or threatened infliction of severe physical pain or suffering;

(B) the administration or application, or threatened administration or application, of mind altering substances or other procedures calculated to disrupt profoundly the senses or the personality;

(C) the threat of imminent death; or

(D) the threat that another individual will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind altering substances or other procedures calculated to disrupt profoundly the senses or personality.

NOTES AND QUESTIONS

1. Like the ATCA, the TVPA opens U.S. courts to suits between aliens for violations of international law. There are differences, however. The TVPA applies to “an individual� and litigation thus is not restricted to aliens but may involve U.S. citizens too. In addition, the TVPA provides a cause of action for described torts and thus eliminates the need to find a customary international norm. The TVPA is limited, however, by a ten year statute of limitations. Further, it requires litigants to “exhaust[] adequate and available remedies in the place in which the conduct giving rise to the claim occurred.� Does that clause avoid some of the problems leading to criticism of the ATCA? What are the implications for plaintiffs? Does the exhaustion requirement unnecessarily restrict the reach of the statute?

2. The text of the TVPA requires that the defendant be acting under “actual or apparent authority, or color of law.� The Second Circuit in Kadic, discussed supra at 30, indicated that these terms should be interpreted using the body of law developed under 42 U.S.C. § 1983. See Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995). In Aldana v. Del Monte Fresh Produce, N.A., Inc., discussed supra at 25, plaintiffs alleged that private security forces acted under color of law because: (1) Guatemala sanctioned the acts of private security forces by allowing them to exist; (2) the police knew of and deliberately ignored the actions which occurred at the labor leader’s offices; and (3) that public officials, including the mayor, failed to take action in order to permit the violence to occur and were part of the security force. Aldana, 416 F.3d at 1248. The court held that the first two allegations made by plaintiffs are insufficient to support the conclusion that the private security force acted under color of law. Id. As to the third allegation, “[t]he Mayor’s active involvement in the process could have provided a sufficiently affirmative act to establish state action. The Mayor’s ‘mere presence’ may not establish state action, but his alleged participation in the forcible events could.� Id. at 1249 (citations omitted). See also Saravia, 348 F. Supp. 2d at 1149-51 (holding that a participant, conspirator, and aider and abettor of the 1980 assassination of Archbishop Romero acted under the apparent authority and color of law of El Salvador); In re Terrorist Attacks on September 11, 2001, 349 F. Supp. 2d at 828 (dismissing TVPA claims against two defendants because plaintiffs did not allege that they operated under color of law).

3. It is unclear whether the TVPA applies to corporations. Two district courts have held that the TVPA’s reference to suits against “individuals� included corporations. Sinaltrainal v. Coca Cola Co., 256 F. Supp. 2d 1345 (S.D. Fla. 2003); Estate of Rodriguez v. Drummond Corp., 256 F. Supp. 2d 1250 (N.D. Ala. 2003). In Sinaltrainal, the court relied on the Supreme Court’s interpretation of “individual� in Clinton v. New York, 524 U.S. 417, 428 (1998). In that case, the Court used the term “individual� synonymously with “person,� and acknowledged that “‘person’� often has a broader meaning in the law� than in ordinary usage. Sinaltrainal, 256 F. Supp. 2d at 1358-69 (quoting Clinton, 417 U.S. at 428). Since corporations are viewed as persons in other areas of the law, it is reasonable to conclude that had Congress intended to exclude corporations for liability under the TVPA, it would have stated so expressly. Id. at 1359. The Drummond court likewise concluded that “corporations can be sued under the ATCA and Congress did not explicitly exclude corporations from liability under the TVPA, private corporations are subject to liability under the TVPA.� Drummond Corp., 245 F. Supp. 2d at 1267.

In contrast, the plaintiff in Beanal v. Freeport-McMoRan, 969 F. Supp. 362 (E.D. La. 1997), an Indonesia tribe member, sued Freeport-McMoRan, a corporation under the ATCA and the TVPA. The district court dismissed the plaintiff’s claims under the TVPA, stating that the TVPA only holds individuals liable and that the term “individual� does not include corporations. Id. at 381. To reach this decision, the court relied on the definition of “individual� in Webster’s New Collegiate Dictionary. Id. at 382. The court also stated that “[t]here is no legislative history as to whether corporations could be held liable under the [TVPA].� Id. Although the court admitted that “Congress does not appear to have had the intent to exclude private corporations from liability under the TVPA,� the court nonetheless held that the TVPA “clearly applies only to ‘individuals,’ and this court understands that term to plainly mean natural persons, not corporations.� Id. The appellate court declined to consider whether the TVPA applies to corporations, and instead affirmed the dismissal of the plaintiff’s TVPA claim on the grounds that it lacked the “requisite factual specificity and definiteness to survive a . . . motion to dismiss.� Beanal v. Freeport-McMoRan, 197 F.3d 161, 169 (5th Cir. 1999).

Other courts have held that the term “individual� was not meant to include corporations. The court in In re Terrorist Attacks on September 11, 2001, 349 F. Supp. 2d 766, 828 (S.D.N.Y. 2005) dismissed all claims against the corporate and financial institutions that allegedly gave support to the terrorists responsible for the attacks. The court noted that “[o]nly individuals may be sued under the TVPA.� Id. Further, in Arndt v. UBS AG, 342 F. Supp. 2d 132, 134-35 (E.D.N.Y. 2004), plaintiffs claimed that the defendant bank was a successor in interest to I.G. Farben, a German company which profited during the Nazi period and which failed to turn over assets rightfully belonging to Holocaust victims. The court held that since UBS AG was not an individual, it could not be sued under the TVPA. Id. at 141.

4. The U.S. Court of Appeals for the Second Circuit held that the TVPA, as well as the ATCA, could be applied to de facto states. See Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995). The court in Doe v. Islamic Salvation Front, 993 F. Supp. 3, 9 (D.D.C. 1998) noted that:

the state action requirement of the TVPA does not require that a particular government be officially recognized. Certain private groups may constitute a de facto state, in which case they will be held liable under the TVPA. The de facto state doctrine recognizes that the TVPA does not concern the legitimacy of a particular organization but its power. According to international law, “a state is an entity that has a defined territory and a permanent population, under the control of its own government, and that engages in, or has the capacity to engage in, formal relations with such other entities.� Restatement (Third) [of Foreign Relations Law of the United States] § 201

5. One court has concluded that neither the FSIA nor the TVPA eliminated head of state immunity. In Lafontant v. Aristide, 844 F. Supp. 128, 137 (E.D.N.Y. 1994), the judge reasoned that both the history and the underlying policy of comity compel a conclusion that the FSIA did not affect the existing head of state immunity doctrine. Similarly, the legislative history supports the conclusion that it was “not intended to trump diplomatic and head of state immunities.� Id. at 138. The court dismissed plaintiff’s claims against President Aristide of Haiti on grounds of head of state immunity, despite its concluding that “[t]he TVPA on its face does give federal courts jurisdiction over some suits against foreign officials who kill illegally on foreign territory.� Id.

For actions brought under the TVPA, however, Congress may have intended to make the act of state defense inapplicable. Statements in the legislative history imply that the defense should not be used to avoid liability under the TVPA. See, e.g., 138 Cong. Rec. S2668 (daily ed. Mar. 3, 1992) (statement of Senator Specter) (arguing that torture cannot be committed as a matter of official policy and therefore cannot be considered an act of state). This issue was also raised in the Pinochet litigation, Chapter 8, supra.

6. In November 2000, a Florida jury refused to find two retired Salvadoran generals liable under the TVPA of the abduction, rape, and murder of four American women, three of whom were nuns, in El Salvador. The women were attacked and killed by members of the Salvadoran National Guard in 1980 during El Salvador’s civil war. The victims’ families sued the former generals in U.S. district court, asking for $100 million in damages. The trial judge asked the jury to decide whether the generals knew or should have known that their troops had committed human rights violations and whether the generals could have stopped the troops from committing future human rights violations. It was the first case in which a U.S. jury had to address the issue of foreign command responsibility. See David Gonzalez, 2 Salvador Generals Cleared by U.S. Jury in Nuns’ Deaths, N.Y. Times, Nov. 4, 2000, at A3.

On appeal, the Eleventh Circuit affirmed. Ford v. Garcia, 289 F.3d 1283 (11 th Cir. 2002), cert. denied, 537 U.S. 1147 (2003). Because there was no objection at trial to the command responsibility jury instruction, the appellate court reviewed the instruction only for plain error. Finding no such plain error, the court held that legislative history of the TVPA made clear that Congress intended to adopt the doctrine of command responsibility from international law and that the essential elements of liability under that doctrine were: (1) the existence of a superior-subordinate relationship between the commander and the perpetrator; (2) the commander knew or should have known that the subordinate was committing or planned to commit war crimes; and (3) the commander failed to prevent the crimes or failed to punish the subordinate for that conduct. This conclusion, said the court, was based upon In re Yamashita, 327 U.S. 1 (1946), ICTY and ICTR precedents, and Article 28 of the ICC Statute. In addition, the court held that plaintiffs had waived any objection to the related instruction on proximate causation, but Judge Barkett in a concurring opinion stated that the proximate causation instruction was erroneous and should be reviewed.

In a similar case involving the same defendants, the Court of Appeal for the 11th Circuit upheld a jury verdict in favor of plaintiffs who had filed suit under the TVPA. Arce v. Garcia, 434 F.3d 1254 (11th Cir. 2006). The trial court used more favorable jury instructions on command responsibility and those instructions were upheld. The defendants also appealed from the jury verdict against them, arguing unsuccessfully that the plaintiffs’ claims were barred by the TVPA’s statute of limitations. For further discussion of this case, see infra at 88.

7. How would you construe the requirement that remedies be “adequate and available�? Would a court waive the requirement if courts in the country wherein torture or extrajudicial killing occurred were not functioning? If the ruling government refuses to enforce judgments for torture? If otherwise it seems futile to pursue national remedies there?

The TVPA’s exhaustion requirement is an affirmative defense, and the defendant bears the burden of proof. Jean v. Dorelien, 431 F.3d 776, 781 (11th Cir. 2005). Quoting the Senate Report to the TVPA, S.Rep. No. 102-249, at 9-10, the court noted:

[the exhaustion requirement] should be informed by general principles of international law. The procedural practice of international human rights tribunals generally holds that the respondent has the burden of raising the nonexhaustion of remedies as an affirmative defense and must show that domestic remedies exist that the claimant did not use. Once the defendant makes a showing of remedies abroad which have not been exhausted, the burden shifts to the plaintiff to rebut by showing that the local remedies were ineffective, unobtainable, unduly prolonged, inadequate, or obviously futile. The ultimate burden of proof and persuasion on the issue of exhaustion of remedies, however, lies with the defendant.

Id. at 782.

In Jean, the plaintiff had obtained a legally binding judgment in Haiti against the defendant for his involvement in the “Roboteau Massacre,� in which the Haitian army attacked a group of civilians, killing 26 unarmed individuals, including the plaintiff’s husband. Id. This judgment, however, was unenforceable in Haiti because of a violent rebellion which returned the defendant to his position of power. Id. The house of the government lawyer who prosecuted Dorelien for the massacre was burned to the ground, and armed men attacked the judge who presided over the case. Id. at 783. The defendant presented no evidence disputing these facts, and thus did not meet his burden of proof to support the affirmative defense of nonexhaustion of remedies. Id. See also Savaria, 348 F. Supp. 2d at 1151-53 (holding that plaintiff’s TVPA claim was not barred because there was no legal remedy in El Salvador for claims relating to the assassination of the Archbishop).

8. One issue in TVPA litigation is retroactivity. In Xuncax v. Gramajo, 886 F. Supp. 162, 169 (D. Mass. 1995), a U.S.-citizen nun claimed that Hector Gramajo, Minister of Defense for Guatemala from 1987 to 1990, was responsible for the acts of torture she experienced while working in Guatemala as a missionary. The U.S. District Court for Massachusetts ruled that the TVPA applies retroactively to grant jurisdiction over pre-TVPA torture and awarded $3,000,000 in compensatory damages. The court declined, however, to award punitive damages retroactively. Id. at 177. See Joan Fitzpatrick et al., Recent Developments in International Human Rights Litigation and Legislation, ACLU International Civil Liberties Report 37 (1993).

Retroactivity did not present a problem for the 11th Circuit in Abebe-Jira v. Negewo, 72 F.3d 844 (11th Cir. 1996). In that case an Ethiopian official appealed a decision awarding three Ethiopian women $1,500,000 for arbitrary detention, torture, and cruel, inhuman, and degrading treatment. Though the lower court did not address the TVPA, defendant-appellant argued on appeal that the law did not apply. He argued in part that, since the plaintiffs’ complaint was filed before the TVPA was enacted, it could not provide jurisdiction. Brief of Defendant-Appellant, at 10. In an amici brief, international law experts argued that the issue was not retroactivity. Brief of Amici, at 21. Pursuant to the Supreme Court’s decision in Bradley v. School Bd. of City of Richmond, 416 U.S. 696, 711 (1974), a “court should ‘apply the law in effect at the time it renders its decision.’� Id. In effect, since the TVPA did not create new legal consequences but merely codified Filartiga, it should apply to all actions decided after its enactment. Id. at 22. The 11th Circuit affirmed the decision of the lower court based on the ATCA and agreed with the amici stating “we find support for our holding in the recently enacted Torture Victim Protection Act of 1991.� The court did not discuss retroactivity with respect to the TVPA.

9. Another issue that has come before the court is whether the TVPA is to be the exclusive judicial remedy for victims of torture, or whether such torture claims are still actionable under the ATCA as well. The district courts have split over this issue as well. In Enahoro v. Abubakar, 408 F.3d 877, 879 (7th Cir. 2005), plaintiffs, Nigerians, brought this claim under the ATCA against Nigeria’s head of state during the last year of a military junta, alleging that he was behind a number of atrocities, including torture, arbitrary detention, and wrongful death. In remanding the case for further findings of fact as to whether plaintiffs had satisfied the TVPA’s exhaustion requirement, the court noted that “the implications [of Sosa] are that the cause of action Congress provided in the [TVPA] is the one which plaintiffs alleging torture or extrajudicial killing must plead.� Id. at 885. If the TVPA did not occupy the entire field of torture litigation, no claimant “would plead a cause of action under the Act and subject himself to its requirements if he could simply plead under international law.� Id.

The 11th Circuit, however, held to the contrary in Aldana, supra at 26. Torture is actionable under the ATS, but only when it is committed in violation of the law of nations, whereas “Congress provided an express definition of torture in the [TVPA]. These two definitions suggest each statute provides a means to recover for torture as that term separately draws its meaning from each statute.� Aldana, 416 F.3d at 1250. Although the Supreme Court in Sosa did say that the TVPA was “an example of Congress providing a ‘clear mandate’ to allow recovery for claims ‘confined to [a] specific subject matter[:]’ torture and extrajudicial killing,� it did not say that the TVPA provided “exclusive authority to hear torture claims.� Id. at 1251 (quoting Sosa, 542 U.S. at 728). If the TVPA provides the exclusive remedy for acts of torture, then the TVPA amends the ATS, and the amendment of a statute by implication is disfavored. Id. Relying on the preceding reasons, the court holds that a plaintiff may bring torture claims under either the TVPA or ATS. Id.

10. For additional reading, see:

Robert F. Drinan, S.J. & Teresa T. Kuo, Putting the World’s Oppressors on Trial: The Torture Victim Protection Act, 15 Hum. Rts. Q. 605 (1993);

Ryan Goodman, Congressional Support for Customary International Human Rights as Federal Common Law: Lessons of the Torture Victim Protection Act; 4 ILSA J. Int’l & Comp. L. 455 (1998);

Beth Van Schaack, Unfulfilled Promise: The Human Rights Class Action, 2003 U. Chi. Legal F. 279 (2003).
___________________________________________________________________________________

E. INTERNATIONAL RULES GOVERNING TORTURE AND FORCED LABOR

In order to determine whether the Alien Torts Claims Act applies to the conduct alleged in the hypothetical case presented in this chapter, the plaintiff’s counsel should consider some of the principal treaties, instruments, and other sources of legal norms relevant to torture and forced labor:

Covenant on Civil and Political Rights, G.A. res 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force Mar. 23, 1976:

Article 2

Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

Article 4

1. In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.

2. No derogation from articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16 and 18 may be made under this provision.

Article 7

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. . . .

Article 8

1. No one shall be held in slavery; slavery and the slave-trade in all their forms shall be prohibited.

2. No one shall be held in servitude.

3.
(a) No one shall be required to perform forced or compulsory labour;
(c) For the purpose of this paragraph the term “forced or compulsory labour� shall not include:
(iii) Any service exacted in cases of emergency or calamity threatening the life or well-being of the community. . . .

Article 9

Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. . . .

Article 17

1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, [or] home . . ., nor to unlawful attacks on his honour and reputation.

2. Everyone has the right to protection of the law against such interference or attacks.

* * * * *

Slavery, Servitude, Forced Labour and Similar Institutions and Practices Convention of 1926 (Slavery Convention of 1926), 60 L.N.T.S. 253, entered into force March 9, 1927:

Article 5

(1) . . . [C]ompulsory or forced labour may only be exacted for public purposes

(2) . . . So long as such forced or compulsory labour exists, this labour shall invariably be of an exceptional character, shall always receive adequate remuneration, and shall not involve the removal of the labourers from their usual place of residence
(3) In all cases, the responsibility for any recourse to compulsory or forced labour shall rest with the competent central authorities of the territory concerned.

* * * * *

Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, 226 U.N.T.S. 3, entered into force April 30, 1957:

Article 7

(a) “Slavery� means, as defined in the Slavery Convention of 1926, the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised, and “slave� means a person in such condition or status

* * * * *

Geneva Conventions of 1949, Conventions I-IV, adopted Aug. 12, 1949, 6 U.S.T. 3114, 3217, 3316, 3516; T.I.A.S. No. 3362-3365; 75 U.N.T.S. 31, 85, 135, 287, entered into force Oct. 21, 1950:

Common Article 1

The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances. . . .

Common Article 3

In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:

(1) Persons taking no active part in the hostilities . . . shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.
To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; [and] . . .
(c) outrages upon personal dignity, in particular humiliating and degrading treatment . . ..

* * * * *

Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), U.N. Doc. A/32/144, Annex II, 16 I.L.M. 1442 (1977), entered into force Dec. 7, 1978:

Article 1 -- Material field of application

1. This Protocol, which develops and supplements Article 3 common to the Geneva Conventions of 12 August 1949 without modifying its existing conditions of application, shall apply to all armed conflicts which are not covered by Article 1 of . . . Protocol I and which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol.

2. This Protocol shall not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not being armed conflicts.

Article 4 -- Fundamental guarantees

2. . . . [T]he following acts against [persons who do not take a direct part or who have ceased to take part in hostilities] are and shall remain prohibited at any time and in any place whatsoever:

(a) violence to life, health and physical or mental well-being of persons, in particular murder as well as cruel treatment such as torture, mutilation or any form of corporal punishment; . . .

* * * * *

Control Council Law No. 10, Punishment of Persons Guilty of War Crimes, Crimes Against Peace and Against Humanity, 3 Official Gazette Control Council for Germany 50-55 (1946):

Article II

1. Each of the following Acts is recognized as a crime: . . .

c) Crimes against Humanity. Atrocities and offenses, including but not limited to murder, extermination, enslavement, deportation, imprisonment, torture, rape, or other inhumane acts committed against any civilian population, or persecutions on political, racial or religious grounds whether or not in violation of the domestic laws of the country where perpetrated.

* * * * *

Convention concerning Forced or Compulsory Labour (ILO No. 29), 39 U.N.T.S. 55, entered into force May 1, 1932:

Article II

1. For the purposes of this Convention the term “forced or compulsory labour� shall mean all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily.

2. Nevertheless, for the purposes of this Convention the term “forced or compulsory labour� shall not include:

(d) Any work or service exacted in cases of emergency, that is to say, in the event of war or of a calamity or threatened calamity, such as fire, flood, famine, earthquake, violent epidemic or epizootic diseases, invasion by animal, insect or vegetable pests, and in general any circumstance that would endanger the existence or the well-being of the whole or part of the population.

Article 5

1. No concession granted to private individuals, companies or associations shall involve any form of forced or compulsory labour for the production or the collection of products which such private individuals, companies or associations utilise or in which they trade.

Article 9

1. . . . [A]ny authority competent to exact forced or compulsory labour shall, before deciding to have recourse to such labour, satisfy itself:

(a) That the work to be done or the service to be rendered is of important direct interest for the community called upon to do the work or render the service;

(b) That the work or service is of present or imminent necessity;

(c) That it has been impossible to obtain voluntary labour for carrying out the work or rendering the service by the offer of rates of wages and conditions of labour not less favourable than those prevailing in the area concerned for similar work or service; and

(d) That the work or service will not lay too heavy a burden upon the present population, having regard to the labour available and its capacity to undertake the work.

* * * * *

Abolition of Forced Labour Convention (ILO No. 105), 320 U.N.T.S. 291, entered into force Jan. 17, 1959:

Article 2

Each Member of the International Labour Organisation which ratifies this Convention undertakes to take effective measures to secure the immediate and complete abolition of forced or compulsory labour . . ..

Commentary on the Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights, U.N. Doc. E/CN.4/Sub.2/2003/38/Rev.2 (2003):

1. . . . . Within their respective spheres of activity and influence, transnational corporations and other business enterprises have the obligation to promote, secure the fulfillment of, respect, ensure respect of and protect human rights recognized in international as well as national law . . ..

Commentary

(b) Transnational corporations and other business enterprises shall have the responsibility to use due diligence in ensuring that their activities do not contribute directly or indirectly to human rights abuses, and that they do not directly or indirectly benefit from abuses of which they were aware or ought to have been aware. . . . Transnational corporations and other business enterprises shall inform themselves of the human rights impact of their principal activities and major proposed activities so that they can further avoid complicity in human rights abuses.

3. Transnational corporations and other business enterprises shall not engage in nor benefit from war crimes, crimes against humanity, genocide, torture, forced disappearance, forced or compulsory labour, hostage-taking, extrajudicial, summary or arbitrary executions, other violations of humanitarian law and other international crimes against the human person as defined by international law, in particular human rights and humanitarian law.

4. Security arrangements for transnational corporations and other business enterprises shall observe international human rights norms as well as the laws and professional standards of the country or countries in which they operate.

Commentary

(b) Business security arrangements shall be used only for preventive or defensive services and they shall not be used for activities that are exclusively the responsibility of the State military or law enforcement services. Security personnel shall only use force when strictly necessary and only to the extent proportional to the threat.

(c) Security personnel shall not violate the rights of individuals while exercising the rights to freedom of association and peaceful assembly, to engage in collective bargaining, or to enjoy other related rights of workers and employers, such as are recognized by the International Bill of Human Rights and the Declaration on Fundamental Principles and Rights at Work of the ILO.

(d) Transnational corporations . . . shall establish policies to prohibit the hiring of individuals, private militias and paramilitary groups, or working with units of State security forces or contract security firms that are known to have been responsible for human rights or humanitarian law violations. Transnational corporations . . . shall engage with due diligence in investigations of potential security guards or other security providers before they are hired and ensure that guards in their employ are adequately trained, guided by and follow relevant international limitations with regard, for example, to the use of force and firearms.

* * * * *

Voluntary Principles on Security and Human Rights, Fact Sheet Released by the Bureau of Democracy, Human Rights, and Labor, U.S. Department of State, December 20, 2000:

In an effort to reduce the risk of such abuses and to promote respect for human rights generally, we have identified the following voluntary principles to guide relationships between Companies and public security regarding security provided to Companies:

Companies should use their influence to promote the following principles with public security: (a) individuals credibly implicated in human rights abuses should not provide security services for Companies; (b) force should be used only when strictly necessary and to an extent proportional to the threat; and (c) the rights of individuals should not be violated while exercising the right to exercise freedom of association and peaceful assembly, the right to engage in collective bargaining, or other related rights of Company employees as recognized by the Universal Declaration of Human Rights and the ILO Declaration on Fundamental Principles and Rights at Work.

Companies should record and report any credible allegations of human rights abuses by public security in their areas of operation to appropriate host government authorities. Where appropriate, Companies should urge investigation and that action be taken to prevent any recurrence.

. . . [W]e recognize the following voluntary principles to guide private security conduct:

Private security should maintain high levels of technical and professional proficiency, particularly with regard to the local use of force and firearms.

Consistent with their function, private security should provide only preventative and defensive services and should not engage in activities exclusively the responsibility of state military or law enforcement authorities. Companies should designate services, technology and equipment capable of offensive and defensive purposes as being for defensive use only.

Private security should (a) not employ individuals credibly implicated in human rights abuses to provide security services; (b) use force only when strictly necessary and to an extent proportional to the threat; and (c) not violate the rights of individuals while exercising the right to exercise freedom of association and peaceful assembly, to engage in collective bargaining, or other related rights of Company employees as recognized by the Universal Declaration of Human Rights and the ILO Declaration on Fundamental Principles and Rights at Work.

* * * * *

A. Yasmine Rassam, International Law and Contemporary Forms of Slavery: An Economic and Social Rights-Based Approach, 23 Penn. St. Int’l. L. Rev. 809, 814-17 (2005) (several footnotes omitted):

. . . Despite the fact that the definition of slavery, as provided by the 1926 Convention on Slavery, has been universally accepted for over eighty years, surprisingly few international bodies have proffered substantive interpretations of “the rights of ownership� within the context of contemporary forms of slavery. While the international community agrees that the rights of ownership cannot simply be reduced to either the historical meaning of ownership of a person through the commercial exchange of humans or a legally enforced proprietary claim over an individual, questions remain as to what “ownership� actually entails under international law.

. . . [W]ithin the context of slavery in the United States from the 1600s to the 1800s, concepts of “ownership� never meant the exclusive right to acquire or dispose of someone as property. Even the law treated slaves as both persons and property, thereby fueling the already complex relationships between master and slave. Moreover, historical forms of slavery never simply entailed a legal relationship, but “one structured and defined by the relative power of the interacting persons.� In practice, ownership in its most brutal form came to mean permanent and complete dominion over another through coercive means. As Orlando Patterson forcefully argues, “relations of inequality or domination, which exist whenever one person has more power than another, range on a continuum from those of marginal asymmetry to those in which one person is capable of exercising, with impunity, total power over another.� Patterson’s definition of slavery is further supported by Mark Tushnet who claims that “societal relations in slave society rest upon the interaction of owner with slave; the owner, having total dominion over the slave, relates to the entire personality of the slave.� Physical coercion ensured the continuance of domination of the slaveowner.

Recent jurisprudence lends support to the above-stated definition. For example, in Prosecutor v. Kunarac, the International Criminal Tribunal for the Former Yugoslavia (“ICTFY�) first applied the newly-minted war crime of sexual slavery. In Kunarac, two men were accused of the crimes of “rape� and “enslavement� for capturing women and subjecting them to sexual servitude for a period of months. The Court adopted the 1926 Slavery Convention’s . . . definition of slavery and defined the elements of ownership requisite for finding enslavement:

Indications of enslavement include elements of control and ownership; the restriction or control of an individual’s autonomy, freedom of choice or freedom of movement; and, often the accruing of some gain to the perpetrator. The consent or free will of the victim is absent. It is often rendered impossible, or irrelevant by, for example, the threat or use of force or other forms of coercion; the fear of violence, deception or captivity, psychological oppression or socio-economic conditions. Further indications of enslavement include exploitation; the exaction of forced or compulsory labour or service, often without remuneration and often, though not necessarily, involving physical hardship; sex; prostitution; and human trafficking . . .. The “acquisition� or “disposal� of someone for monetary or other compensation, is not a requirement for enslavement. Doing so, however, is a prime example of the exercise of the right of ownership over someone. The duration of the suspected exercise of powers attaching to the right of ownership is another factor whose importance will depend on the existence of other indications of slavery. [The basic factors include] the control of someone’s movement, control of physical environment, psychological control, measures taken to prevent or deter escape, force, threat of force or coercion, duration, assertion of exclusivity, subjection to cruel treatment and abuse, control of sexuality and forced labor.

These factors, all of equal weight, are “to be taken into account in determining whether enslavement was committed. . . .�

International jurisprudence and scholarship regarding traditional forms of slavery identify the elements inherent to finding whether a practice constitutes a contemporary form of slavery: physical and psychological coercion, absolute control of movement and autonomy, unpaid labor (including sex) accruing a benefit to the owner, and extreme deprivation and domination over every aspect of life. . . . [t]he institution of slavery is defined as the total dominion over another through physical and/or psychological violence for purposes of extracting unpaid labor.

NOTES AND QUESTIONS

1. The following list shows which nations concerned with the hypothetical case described at the beginning of this chapter have ratified the treaties excerpted above. The date in parentheses represents the date of ratification or succession.

United States

Slavery Convention of 1926 (March 21, 1929)
Geneva Conventions I - IV (August 2, 1955)
Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery (December 6, 1967)
Abolition of Forced Labour Convention (September 25, 1991)
Covenant on Civil and Political Rights (June 8, 1992)
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (October 21, 1994)

Colombia

Geneva Conventions I - IV (November 8, 1961)
Abolition of Forced Labour Convention (June 7, 1963)
Forced Labor Convention (April 3, 1969)
Covenant on Civil and Political Rights (October 29, 1969)
Covenant on Economic, Social and Cultural Rights (October 29, 1969)

Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims on Non-International Armed Conflicts (August 14, 1995)

2. There is wide judicial consensus that torture violates the norms of international law. The court in Filartiga notes that “official torture is now prohibited by the law of nations [and that] prohibition is clear and unambiguous.� Filartiga, 630 F.2d at 884. Not only has the prohibition of official torture been recognized by courts as a violation of international law, some courts have held that it has achieved jus cogens status. The district court in In re Estate of Marcos Human Rights Litig., 978 F.2d 493, 500 (9th Cir. 1992), noted that the prohibition against official torture “carries the force� of a jus cogens norm. The court in Unocal also referred to “torture, murder, and slavery [as] jus cogens violations.� Unocal, 395 F.3d at 945.

3. Forced labor has been roughly defined as “any labor performed without consent, not volunteered, given under outside pressure, exacted by other persons, or required by law.� David Ziskind, Forced Labor in the Law of Nations, 3 Comp. L. 253, 254 (1980). Prior to Sosa, several district courts held that forced labor violated established norms of international law. In Iwanowa v. Ford Motor Corp., 67 F. Supp. 2d 424, 440 (D.N.J. 1999), the district court held that the “use of unpaid, forced labor ... violated clearly established norms of customary international law.� Further, the court in Handel v. Artukovic, 601 F. Supp. 1421, 1426 n. 2, the court described deportation to slave labor as a war crime in violation of international law. One commentator had the following to say about the status of forced labor:

Forced labor has been held to be a violation of international law under ATCA decisions. Additionally, its analogy to slavery suggests that forced labor belongs in the category of jus cogens violations, and would therefore not require an element of state action for a successful claim. In fact, the Ninth Circuit in its tremendously important and controversial Unocal decision held just that. The key element behind forced labor’s status as a powerful ATCA claim is undoubtedly its established proximity to slavery. That proximity is quite robust as a legal argument because the modern vision of what encompasses slavery has been greatly expanded beyond what was traditionally thought of as “slavery� and because the frequent connection between the two in international conventions makes it easy to see forced labor as an impermissible human rights violation, akin to slavery.

Igor Fulks, Note, Sosa v. Alvarez-Machain and the Future of ATCA Litigation: Examining Bonded Labor Claims and Corporate Liability 106 Colum. L. Rev. 112, 126 (2006) (footnotes omitted).

5. How might lawsuits affect the situation in Colombia? Do you think the impact would differ depending on whether a judgment for plaintiffs is actually paid? What other use might be made of such lawsuits?

F. OBSTACLES TO ADJUDICATION UNDER THE ALIEN TORT CLAIMS ACT AND TORTURE VICTIMS PREVENTION ACT

In addition to determining whether it has jurisdiction and whether plaintiff has a cause of action, the court must decide whether any rules preclude adjudication of the claim. For example, if defendant is a current or former foreign official, the court must decide whether protection is accorded by sovereign immunity or doctrines of official immunity, such as head of state or diplomatic immunity. If the claim is against a foreign sovereign the court must decide whether the Foreign Sovereign Immunities Act (“FSIA�) is a bar. If the FSIA bars the suit, the ATCA no longer provides jurisdiction. A separate issue of justiciability based on U.S. constitutional notions of separation of powers is presented by the act of state doctrine.

Statutes like the ATCA and TVPA create universal civil jurisdiction in district courts, meaning that a U.S. court will have jurisdiction over claims arising anywhere in the world. The scope of universal civil jurisdiction is troubling to some commentators because some of the state’s traditional interests in resolving disputes may not be present, and such distance from the events being adjudicated may make U.S. courts an inadequate forum to settle such disputes. M.O. Chibundu, Making Customary International Law through Municipal Adjudication: A Structural Inquiry, 39 Va. Int’l L. 1069, 1133-43. (1999). Another concern related to universal civil jurisdiction is that it invites judicial scrutiny in areas that may be best left to the other political branches. Curtis A. Bradley, Universal Jurisdiction and U.S. Law, 2001 U. Chi. Legal F. 323, 347-48 (2001). This section of the book describes some of the various mechanisms that operate to ensure that the judiciary shows the necessary respect for the other branches of government.

Immunities law in general is driven by a concern for international comity. As you read the discussion and excerpts that follow, note how this concern impacts courts’ decisions.

1. Foreign Sovereign Immunities Act

Prior to enactment of the FSIA, the validity of claims of foreign sovereigns was determined primarily by the Executive Branch, whose recommendations generally were followed by courts without much question. See Siderman v. Republic of Argentina, 965 F.2d 699, 705-06 (9th Cir. 1992), cert. denied, 507 U.S. 1017 (1993). The FSIA codified a restrictive theory of sovereign immunity, the prevailing view at the time of its passage. Under that theory immunity is recognized for a state’s public acts (acta jure imperii) but not for its private acts (acta jure gestionis). Id. Jordan J. Paust, Jon M. Van Dyke, Linda A. Malone, International Law and Litigation in the U.S. 568-89 (2005).

Section 1330 of the FSIA allows federal courts to decide civil suits against foreign state governments that are not immune; section 1604 provides that foreign states are presumptively immune unless any of the exceptions contained in §§ 1605-1607 apply.

Some of the important exceptions to immunity are the waiver exception, 28 U.S.C. § 1605(a)(1), the commercial activity exception, 28 U.S.C. § 1605(a)(2), the international taking exception, 28 U.S.C. § 1605(a)(3), the noncommercial torts exception, 28 U.S.C. § 1605(a)(5); and the state-sponsored terrorism exception, 28 U.S.C. §1605(a)(7). These provisions are excerpted below.

28 U.S.C. § 1605. General exceptions to the jurisdictional immunity of a foreign state:

(a) A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case --

(1) in which the foreign state has waived its immunity either explicitly or by implication . . .;

(2) in which the action is based upon a commercial activity carried on in the United States by the foreign state; or upon an act performed in the United States in connection with a commercial activity of the foreign state elsewhere; or upon an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States;

(3) in which rights in property taken in violation of international law are in issue and that property or any property exchanged for such property is present in the United States in connection with a carried on in the United States by the foreign state; or that property or any property exchanged for such property is owned or operated by an agency or instrumentality of the foreign state and that agency or instrumentality is engaged in a commercial activity in the United States; . . .

(5) not otherwise encompassed in paragraph (2) above, in which money damages are sought against a foreign state for personal injury or death, or damage to or loss of property, occurring in the United States and caused by the tortious act or omission of that foreign state or of any official or employee of that foreign state while acting within the scope of his office or employment; except this paragraph shall not apply to --

(A) any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function regardless of whether the discretion be abused, or

(B) any claim arising out of malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights . . ..

(7) not otherwise covered by paragraph (2), in which money damages are sought against a foreign state for personal injury or death that was caused by an act of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources . . . for such an act if such act or provision of material support is engaged in by an official, employee, or agent of such foreign state while acting within the scope of his or her office, employment, or agency, except that the court shall decline to hear a claim under this paragraph--

(A) if the foreign state was not designated as a state sponsor of terrorism under section 6(j) of the Export Administration Act of 1979 (50 U.S.C. App. 2405(j)) or section 620A of the Foreign Assistance Act of 1961 (22 U.S.C. § 2371) at the time the act occurred, unless later so designated as a result of such act; and

(B) even if the foreign state is or was so designated, if--

(i) the act occurred in the foreign state against which the claim has been brought and the claimant has not afforded the foreign state a reasonable opportunity to arbitrate the claim in accordance with accepted international rules of arbitration; or

(ii) neither the claimant nor the victim was a national of the United States (as that term is defined in section 101(a)(22) of the Immigration and Nationality Act) when the act upon which the claim is based occurred.
.
The Supreme Court construed the FSIA in Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428 (1989), and Saudi Arabia v. Nelson, 507 U.S. 349 (1993). Amerada Hess involved a Liberian oil tanker attacked in international waters by the Argentine military during the war in the South Atlantic between Great Britain and Argentina. 488 U.S. at 431-32. Nelson involved a U.S. employee of a government-owned hospital in Saudi Arabia who was detained and tortured by the Saudi Arabian Government at the hospital’s request after he reported safety defects that endangered patient safety and posed fire hazards. 507 U.S. at 352.

In Amerada Hess, the Supreme Court first concluded the FSIA was the sole means of obtaining jurisdiction over a foreign sovereign. The ATCA thus does not provide an additional avenue for obtaining jurisdiction in these cases. 488 U.S. at 434-40. After reaching that conclusion, the Court analyzed whether any exceptions to the FSIA applied so that jurisdiction was proper.

The plaintiffs in Amerada Hess relied on the noncommercial tort exception, 28 U.S.C. § 1605(a)(5), to provide jurisdiction. The Supreme Court rejected their argument by construing the exception to apply only to suits for damages to or loss of property occurring within the territorial United States. Since the attack on the plaintiff’s ship occurred off the coast of Argentina, the FSIA exception did not apply. Id. at 440-42.

In Nelson, the Court construed the FSIA’s commercial activity exception. The plaintiff based his commercial activity argument on the following facts: (1) the hospital recruited him in the U.S. through an advertisement in a U.S. magazine; (2) Nelson signed his employment contract with the hospital in the U.S.; and (3) the hospital designated its U.S. purchasing agent as the point of contact for Nelson’s family in case of emergency. 507 U.S. at 352, 358. The Supreme Court rejected Nelson’s argument and held that the claim was not “based on� these activities since the acts did not constitute the elements which, “if proven, would entitle [the] plaintiff to relief under his theory of the case.� Id. at 357. Moreover, the activities on which the claim was based did not have sufficient nexus with the U.S. to fall under the commercial torts exception. Id. at 355. The Court then contrasted this suit with one based on breach of contract, which presumably would be sufficiently related to Saudi Arabia’s contacts in the U.S. to constitute a commercial activity in the U.S. Id.

The Court next held that the tortious conduct itself -- the detention and torture of Nelson -- was not a commercial activity. Id. at 358-63. Analyzing the tortious conduct under the restrictive theory of sovereign immunity, which the FSIA codified, the Court concluded

[A] state engages in commercial activity under the restrictive theory where it exercises only those powers that can also be exercised by private citizens, as distinct from those powers peculiar to sovereigns. Put differently, a foreign state engages in commercial activity for purposes of the restrictive theory only where it acts in the manner of a private player within the market.

. . . [W]hether a state acts “in the manner of� a private party is a question of behavior, not motivation . . .. We [do] not ignore the difficulty of distinguishing purpose (i.e., the reason why the foreign state engages in the activity) from nature (i.e., the outward form of the conduct that the foreign state performs or agrees to perform), but recognize[] that the Act unmistakably commands us to observe the distinction. . . .

. . . The conduct [in this case] boils down to abuse of the power of its police by the Saudi Government, and however monstrous such abuse undoubtedly may be, a foreign state’s exercise of the power of its police has long been understood for purposes of the restrictive theory as peculiarly sovereign in nature. Exercise of the powers of police and penal officers is not the sort of action by which private parties can engage in commerce. Such acts as legislation, or the expulsion of an alien, or a denial of justice, cannot be performed by an individual acting in his own name. They can be performed only by the state acting as such.

Id. at 359-61 (footnotes, citations, and internal quotations omitted). The Court’s reasoning suggests that wrongful arrest, imprisonment, and torture are particularly sovereign in nature and thus are likely to be immune under the FSIA. The Court also rejected Nelson’s argument that the conduct was commercial because it was inflicted on him in retaliation for his reporting of safety violations. The Court found that argument went to the purpose of the acts, which the FSIA “renders irrelevant to the question of an activity’s commercial character.� Id. at 363.

In a concurring opinion Justice White chastised the majority for basing its decision on the status of the individuals used by the hospital to retaliate for Nelson’s whistleblowing.

. . . As countless cases attest, retaliation for whistleblowing is not a practice foreign to the marketplace. . . .

Therefore, had the hospital retaliated against Nelson by hiring thugs to do the job, I assume the majority -- no longer able to describe this conduct as “a foreign state’s exercise of the power of its police� -- would consent to calling it “commercial.� For, in such circumstances, the state-run hospital would be operating as any private participant in the marketplace and respondents’ action would be based on the operation by Saudi Arabia’s agents of a commercial business.

Id. at 366 (White, J., concurring) (citation omitted). He concluded that the defendants’ operation of the hospital and their employment practices and disciplinary procedures were commercial activities. He nonetheless reached the same conclusion as the majority because defendants’ tortious conduct did not have substantial contact with the United States. Id. at 370.

Between the two Supreme Court decisions, the Ninth Circuit construed exceptions to the FSIA in Siderman v. Republic of Argentina, 965 F.2d 699 (9th Cir. 1992), cert. denied, 507 U.S. 1017 (1993). Siderman involved claims by four family members, one of whom was a U.S. citizen and three of whom were Argentine citizens, against Argentina. Plaintiffs stated that Argentine military officials detained and tortured one of the plaintiffs and expropriated property belonging to all family members because of their Jewish faith. They argued that two of the FSIA exceptions applied to their expropriation claims -- the commercial activity exception and the international takings exception, excerpted supra at 62. Id. at 704-05.

The court concluded that all three clauses of the commercial activity exception applied. Part of the property expropriated by Argentina was an Argentine corporation whose largest asset was an Argentine hotel. The hotel advertised in and solicited guests from the U.S. through its U.S. agent and accepted American credit cards from its numerous American guests. The court concluded these facts were sufficient to demonstrate that Argentina was engaging in a commercial activity, and that Argentina’s operation of this hotel had substantial contact with the U.S. Id. at 708-09. Even if the Siderman’s claims were not based on a commercial activity carried on in the U.S., however, jurisdiction was proper because Argentina’s activities were materially connected to the operation of the commercial activity in Argentina. The court reached this conclusion because plaintiffs were claiming profits from the hotel which partially were derived from American guests. Argentina’s advertising and credit reimbursement activities in the U.S. thus contributed to the profit resulting from a commercial activity conducted outside of the U.S. Id. at 709-10.

With respect to the third clause of the commercial activity exception the court emphasized that the Siderman’s claims must be based on an act occurring outside the U.S. which had a direct effect in the U.S. “Under the direct effect requirement, the ‘foreign sovereign’s activities must cause an effect in the United States that is substantial and foreseeable in order to abrogate sovereign immunity.’� Id. at 710. Although “mere financial loss� in the U.S. is not sufficient, the direct effect requirement was met here since the dividends from the expropriated corporation were to have been paid at the shareholders’ places of residence in the U.S. Id. at 710-11.

The court next construed the international takings exception and concluded that it, too, provided jurisdiction, but only for the claims of the plaintiff who was a U.S. citizen. The exception is not applicable where the plaintiff is a citizen of defendant country at the time of the taking, “because ‘[e]xpropriation by a sovereign state of the property of its own nationals does not implicate settled principles of international law.’� Id. at 711 (quoting Chuidian v. Philippine Nat’l Bank, 912 F.2d 1095, 1105 (9th Cir. 1990)). In order for the clause to apply, “the property at issue must have been taken in violation of international law.� Id. at 712. The court concluded here that Argentina’s taking of property discriminatorily based on ethnicity, without payment of just compensation, violated the international law of expropriation.

The court then turned to the Siderman’s torture claims. The Sidermans argued that Argentina should not enjoy sovereign immunity as to torture since there is a customary international norm against torture which has risen to the level of a jus cogens norm. Id. at 714. Jus cogens norms, also called peremptory norms, are customary international norms “accepted and recognized by the international community of states as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.� Vienna Convention on the Law of Treaties, art. 53, 1155 U.N.T.S. 332, 8 I.L.M. 679, entered into force May 23, 1969. Though the court concluded that the prohibition against official torture had attained the status of a jus cogens norm, based on Filartiga and Forti and the authorities cited therein, Id. at 716-17, the court found Amerada Hess precluded the adoption of plaintiffs’ argument. See chapter 13, supra, for further discussion of jus cogens.

The court agreed plaintiffs’ argument had merit. Sovereign immunity itself is a principle of international law which is trumped by jus cogens. Thus international law does not recognize an act that violates jus cogens as a sovereign act. Therefore a state’s violation of the jus cogens norm prohibiting official torture would not be entitled to the immunity afforded by international law. In enacting the FSIA, however, the court concluded that Congress intended to occupy the field of sovereign immunity. Based on the inclusive nature of the language of the Act and the Supreme Court’s declaration in Amerada Hess that jurisdiction was improper unless one of the exceptions to the FSIA applied, the court concluded “a violation of a jus cogens norm does not confer jurisdiction under the FSIA.� Id. at 718.

In establishing the FSIA, Congress provided the rules were “[s]ubject to existing international agreements to which the United States [was] a party at the time of enactment of� the FSIA. 28 U.S.C. § 1604. In Amerada Hess, the plaintiffs had argued that the Geneva Convention on the High Seas and the Pan American Maritime Neutrality Convention created an exception to FSIA immunity under § 1604. The Amerada Hess Court rejected the argument, adopting a narrow view of § 1604:

This exception applies when international agreements expressly conflict with the immunity provisions of the FSIA, hardly the circumstances in this case. [The Geneva and Pan American Conventions] only set forth substantive rules of conduct and state that compensation shall be paid for certain wrongs. They do not create private rights of action for foreign corporations to recover compensation from foreign states in United States courts.

488 U.S. at 442-43. Similarly, in Siderman, the plaintiffs argued Argentina’s immunity under the FSIA was subject to the Universal Declaration of Human Rights and the U.N. Charter. The court, following Amerada Hess, rejected those arguments. Because the Universal Declaration of Human Rights is only a resolution of the General Assembly, the court concluded that it was not an “international agreement� within the meaning of § 1604. Though the U.N. Charter is a treaty, its language is not sufficiently specific regarding individual remedies to fall within the mandate of § 1604. Id. at 719-20.

The court lastly construed the FSIA’s waiver exception.

The House Report accompanying the passage of the FSIA gives three examples of an implied waiver:

With respect to implicit waivers, the courts have found such waivers in cases where a foreign state has agreed to arbitration in another country or where a foreign state has agreed that the law of a particular country should govern a contract. An implicit waiver would also include a situation where a foreign state has filed a responsive pleading in an action without raising the defense of sovereign immunity.

Id. at 721 (citation omitted). The court held that “where a written agreement entered into by a foreign sovereign ‘contemplates adjudication of a dispute by the United States courts,’ we will find the sovereign to have waived its immunity.� Id., (quoting Joseph v. Office of Consulate General of Nigeria, 830 F.2d 1018, 1023 (9th Cir.1987), cert. denied, 485 U.S. 905 (1988)).

On the facts before it, the court concluded that Argentina had waived its immunity from suit. After the Sidermans fled to the U.S. to avoid persecution, Argentina requested U.S. assistance in extraditing one member of the family. The Sidermans suggested that extradition was a part of the plan to torture, and perhaps kill, that individual. Such request for assistance, the court concluded, constituted an implied waiver of sovereign immunity with respect to the torture claims. “The evidence indicates that Argentina deliberately involved United States courts in its efforts to persecute [the Sidermans]. If Argentina has engaged our courts in the very course of activity for which the Sidermans seek redress, it has waived its immunity as to that redress.� Id. at 722.

In 1996, Congress added 28 U.S.C. §1605(a)(7) as a response to Smith v. Socialist People’s Libyan Arab Jamahiriya, 101 F.3d 239 (2d Cir. 1996). In Smith, relatives of persons killed in the 1988 bombing of Pan Am Flight 103 over Lockerbie, Scotland were unable to gain jurisdiction over Libya, the country accused of sponsoring the terrorists responsible for the bombing. The amendment permits plaintiffs to sue foreign states in U.S. courts if the state has been formally designated as a state sponsor of terrorism and if the state has committed or provided support for the commission of a terrorist attack in the foreign state against a U.S. citizen. States designated as sponsors of terrorism currently include Cuba, the Democratic People’s Republic of Korea, Iran, Libya, Sudan, and Syria. See 22 C.F.R. §126.1 (d) (2006).

The statute of limitation on claims arising under the amendment is ten years, although “principles of equitable tolling, including the period during which the foreign state was immune from suit, shall apply in calculating this limitation period.� 28 U.S.C. § 1605(f). The amendment also contains a provision permitting the Attorney General to limit the discovery that may be had if the Attorney General certifies that the discovery request would “significantly interfere with a criminal investigation or prosecution, or a national security operation, related to the incident that gave rise to the cause of action.� 28 U.S.C. § 1605(g)(1)(A).

A judgment against a foreign state under the amendment may be satisfied by attaching property belonging to the foreign state that is used for commercial activity in the United States. Such property may be attached whether or not it was involved in the incident upon which the plaintiff’s claim is based. 28 U.S.C. § 1610 (a)(7).

NOTES AND QUESTIONS

1. The amendment applies retroactively. See Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214, § 221(c) (1996). The plaintiffs from Smith refiled their case under the amendment. Libya challenged the amendment as an unconstitutional delegation of the power to establish the jurisdiction of the federal courts. See Rein v. Socialist People’s Libyan Arab Jamahiriya, 162 F.3d 748 (2d Cir. 1998), cert. denied 527 U.S. 1003 (1999). The Second Circuit held that the amendment was constitutional as applied. Id. at 754.

The Supreme Court again ruled on the FSIA in a case which involved paintings which were confiscated by the Nazis during World War II. Republic of Austria v. Altmann, 541 U.S. 677, 680 (2004). Altmann initiated this action to recover six paintings which were taken from her uncle, a Czechoslovakian Jew. Id. The Court held that applying the FSIA to all claims regardless of when the underlying conduct occurred is “most consistent with two of the Act’s principal purposes: clarifying the rules that judges should apply in resolving sovereign immunity claims and eliminating political participation in the resolution of such claims.� Id. at 699. Since the FSIA applies retroactively, and since the taking of the paintings fell under § 1605(a)(3)’s exception to the general grant of immunity, the Court affirmed the denial of the Republic of Austria’s motion to dismiss. Id. at 700.

2. Since the passage of the amendment, U.S. courts have heard several cases involving § 1605(a)(7). The first case was Alejandre v. Republic of Cuba, 996 F. Supp. 1239 (S.D. Fla. 1997). Alejandre involved the Cuban Air Force’s shooting down of planes containing members of the group Brothers to the Rescue. Id. at 1242. The group was flying over the waters between Cuba and the Florida Keys, looking for rafters headed for the U.S. Id. Three members of the group were U.S. citizens, and after their planes were shot down, the personal representatives of their estates sued Cuba and the Cuban Air Force. Id. Cuba and the Cuban Air force did not mount a defense, instead claiming in a diplomatic note that the U.S. lacked jurisdiction. Id. Even though the defendants did not appear, the court was unable to enter a default judgment because the suit was against a foreign state. Id. The case went to trial on the issues of liability and damages. Id. The court found that the requirements of the state-sponsored terrorism exception to FSIA were met and awarded compensatory ($49,927,911) and punitive damages ($137,700,00) to the plaintiffs. Id. at 1249.

3. The next case to be heard under the amendment was Flatow v. Islamic Republic of Iran, 999 F. Supp. 1 (D.D.C. 1998). Flotow involved a U.S. college student studying in Israel. The student died as result of injuries she received when a suicide bomber blew up the bus in which she was riding. Id. at 7. Her father sued Iran, the country that had funded the terrorist group responsible for the bombing. Id. at 8-9. The court found that the elements of the amendment had been satisfied, and awarded compensatory ($22,513,220) and punitive damages ($225,000,000). Id. at 16-18, 25-34.

4. Other recent FSIA cases involving the amendment include Price v. Socialist People’s Libyan Arab Jamahiriya, 384 F. Supp. 2d 120 (D.D.C. 2005) (awarding over $7 million in damages to plaintiffs who were imprisoned and tortured in a Libyan prison); Salazar v. Islamic Republic of Iran, 370 F. Supp. 2d 105 (awarding $18 million in damages to a widow whose husband was fatally wounded in the bombing of the U.S. Embassy in Lebanon in 1983); Wyatt v. Syrian Arab Republic, 362 F. Supp. 2d 103 (D.D.C. 2005) (denying defendant’s motion to dismiss since Syria’s assistance and participation in hostage taking was sufficient to support subject matter jurisdiction under the FSIA); Anderson v. Islamic Republic of Iran, 90 F. Supp. 2d 107 (D.D.C. 2000) (awarding former hostage Terry Anderson and his family over $40 million in damages); Daliberti v. Republic of Iraq, 97 F. Supp. 2d 38 (D.D.C. 2000) (finding that the plaintiffs had sufficient grounds to proceed under the state-sponsored terrorism exception for acts committed against them while doing business in Kuwait).

5. How would Saudi Arabia v. Nelson have been decided if the amendment had existed at that time? How would Siderman have been decided?

6. Is Siderman still valid after Nelson? For example, the court in Siderman concluded that soliciting U.S. guests for an Argentine hotel and accepting U.S. credit cards in payment constituted a commercial activity based in the U.S. Moreover, the court concluded those activities formed the basis of the Sidermans’ expropriation claims. Would the Supreme Court agree? Were there other bases for the holding in Siderman?

7. Courts have followed Nelson in holding that kidnaping is not a commercial activity. For example, two victims of kidnaping and torture brought a suit against the Islamic Republic of Iran. Cicippio v. Islamic Republic of Iran, 30 F.3d 164 (D.C. Cir. 1994), cert. denied, 1995 U.S. LEXIS 122. In dismissing their claim the court based its decision on the FSIA as analyzed in Nelson. How does the Court’s holding in Nelson that the tortious activity itself was not a commercial activity limit the liability of some defendants in the hypothetical situation presented at the beginning of this chapter? Insurgent groups in states such as Colombia and the Philippines frequently engage in kidnaping as a means to obtain funds to continue their insurgencies. The distinction between armed political groups and organized crime becomes difficult to discern in such situations.

8. For criticism of Nelson, see Keith Highet et al., Foreign Sovereign Immunities Act--Commercial Activity Exception--Nature and Purpose Tests--Police Power as Sovereign Power, 87 Am. J. Int’l L. 442 (1993); Harvard Law Review Ass’n, Leading Cases, Foreign Sovereign Immunity: Commercial Activities, 107 Harv. L. Rev. 264 (1993).

For further reading on the commercial activity exception to the FSIA, see Joan E. Donoghue, Taking the “Sovereign� out of the Foreign Sovereign Immunities Act: A Functional Approach to the Commercial Activity Exception, 17 Yale J. Int’l L. 489 (1992); Margot C. Wuebbels, Note, Commercial Terrorism: A Commercial Activity Exception Under § 1605(a)(2) of the Foreign Sovereign Immunities Act, 35 Ariz. L. Rev. 1123 (1993) (arguing some Iranian terrorism should be considered a commercial activity); Richard Wydeven, Note, The Foreign Sovereign Immunities Act of 1976: A Contemporary Look at Jurisdiction Under the Commercial Activity Exception, 13 Rev. Litig. 143 (1993).

9. One court refused to follow the Supreme Court’s strict construction of FSIA exceptions in a case involving a renegade government. In Princz v. Federal Republic of Germany, 813 F. Supp. 22 (D.D.C. 1992), the court allowed a Jew who was interred by Nazis during World War II to sue Germany for damages. The court rejected Germany’s claim that the court lacked jurisdiction because the suit did not fit within one of the exceptions under the FSIA, noting “in enacting the [FSIA], Congress [cannot have] . . . intended to bar a U.S. citizen from seeking redress against a nation standing in the shoes of his or her would-be-butcher in U.S. courts in a case such as this.� Id. at 25-26. The court noted the FSIA was simply inapplicable to suits involving “a one-time outlaw nation . . . which at the time [the] barbaric acts were committed neither recognized nor respected U.S. or international law.� Id. Therefore, Germany could not now “assert[] U.S. law to evade its responsibilities. . . . To allow otherwise would create a severe imbalance in the reciprocity and mutual respect which must exist between nations, and would work an intolerable injustice against the plaintiff and the principles for which this country stands.� Id.

On appeal the Court of Appeals reversed. It first considered, but did not decide, whether the FSIA even applied to events occurring before enactment. Princz v. Federal Republic of Germany, 26 F.3d 1166, 1169-71 (D.C. Cir. 1994). The court then concluded that, even if the FSIA did control, none of the statutory exceptions applied to grant jurisdiction. Id. at 1171-75. In reaching that result, the court applied a strict statutory analysis rather than the purposive analysis used by the district court.

Princz’s claims were later settled through an agreement between the Governments of the United States and Germany. Further compensation negotiations have taken place between the two governments, with the aim of barring Holocaust-related litigation in U.S. courts against corporations that employed slave and forced labor. The United States has agreed to file a “statement of interest� seeking dismissal of pending and future lawsuits against German corporations brought by persons who are intended to benefit from the compensation fund, but such statements are not statutory limits on jurisdiction. In re Austrian and German Bank Holocaust Litigation, No. 98 CIV 3938 SWK, 2001 U.S. Dist. LEXIS 2311 (S.D.N.Y., filed March 8, 2001).

10. A significant issue in FSIA litigation involves determining whether the party asserting immunity is an “agency or instrumentality of a foreign state.� The definition in 28 U.S.C. § 1603(a) provides that “foreign state� includes an “agency or instrumentality� of the state. 28 U.S.C. § 1603(b) then defines “agency or instrumentality� as “a separate legal person, corporate or otherwise, . . . which is an organ of a foreign state or political subdivision thereof� or in which the state owns a majority interest.

In Chuidian v. Philippine Nat’l Bank, 912 F.2d 1095, 1101 (9th Cir. 1990), the court held that “agency or instrumentality� includes an individual government employee acting in his official capacity. The court reasoned that “a suit against an individual acting in his official capacity is the practical equivalent of a suit against the sovereign directly.� Id. Though language from the legislative history could support a conclusion that “Congress was primarily concerned with organizations . . . and may not have expressly contemplated the case of individuals acting as sovereign instrumentalities,� the Act did not expressly exclude individuals from the definition. Id. Since the FSIA primarily codified the existing law of sovereign immunity as of 1976, which “expressly extended immunity to individual officials acting in their official capacity,� the court determined individuals can fall within the definition of foreign state for purposes of the FSIA. Id.

The Ninth Circuit later clarified this holding in In re Estate of Ferdinand E. Marcos Human Rights Litigation, 978 F.2d 493 (9th Cir. 1992). In In re Estate of Marcos, an alien mother sued Imee Marcos-Manotoc, former head of military intelligence, for the torture and wrongful death of her son in the Philippines. Id. at 495. The court cited Chuidian for the proposition that “an official is not entitled to immunity for acts which are not committed in an official capacity (such as selling personal property), and for acts beyond the scope of her authority (for example, doing something the sovereign has not empowered the official to do).� Id. at 497. Since Marcos-Manotoc conceded she was acting solely on her own authority by defaulting, her acts did not fall within the immunity granted by the FSIA. Id. at 498. A jury later awarded $1,200,000,000 in punitive damages and over $800,000,000 in compensatory damages to the plaintiffs in the action. In Re Estate of Ferdinand E. Marcos Human Rights Litigation, MDL No. 840 (D. Haw. 1994). Where the defendant does not default, however, the question whether human rights violations can be within the scope of an official’s duty would have to be faced by a court following this reading of 28 U.S.C. §1603(b).

There are various factors to be considered when determining whether an entity can be considered an organ of a foreign sovereign under the FSIA. In re Terrorist Attacks on Sept. 11, 2001, 392 F. Supp. 25 533, 552 (S.D.N.Y. 2005). These factors include:

(1) whether the foreign state created the entity for a national purpose; (2) whether the foreign state actively supervises the entity; (3) whether the foreign state requires the hiring of public employees and pays their salaries; (4) whether the entity holds exclusive rights to some right in the [foreign] country; and (5) how the entity is treated under foreign state law.

Id. (quoting Filler v. Hanvit Bank, 378 F.3d 213, 217 (2nd Cir. 2004)). Plaintiffs in this case were representatives, survivors, and the insurance carriers of the victims of the Sept. 11, 2001 terrorist attacks. One of the entities sued was the Saudi High Commission (SHC), which moved to dismiss the claim for lack of subject matter jurisdiction under the FSIA. Id. at 546. SHC offered evidence that it was created by the Kingdom of Saudi Arabia’s Council of Ministers, and that the salaries of SHC employees were paid by the Kingdom as well. Id. at 553. Further, SHC can be sued in Saudi courts. Id. The court found these facts sufficient to dismiss claims against SHC for under the FSIA. Id.

11. Does the FSIA shield government officials from liability for acts that affect human rights which are within the scope of their official duties? Professor Joan Fitzpatrick argues, “[b]ecause ‘color of law’ requirements are essential to make out many violations of human rights norms, including protections against summary execution, torture, and arbitrary detention, a broad Chuidian approach would render the ATCA a dead letter for all but piracy-type cases.� Joan Fitzpatrick, The Future of the Alien Tort Claims Act of 1789: Lessons from In Re Marcos Human Rights Litigation, 67 St. John’s L. Rev. 491, 507 (1993). “If Chuidian’s reading of section 1603(b) of the FSIA is correct, all ATCA defendants sued for human rights torts that require proof that the violator acted under color of foreign law will be immune, having been able to commit the torts in question only by exercising power delegated to them by the sovereign.� Id. at 511. She urges courts to reject these precedents or, at a minimum, construe an exception to the inclusion of individuals as agencies or instrumentalities where the foreign officials violate international law. Id. at 515. See also Tom Lininger, Recent Development, Overcoming Immunity Defenses to Human Rights Suits in U.S. Courts, 7 Harv. Hum. Rts. J. 177, 186-88 (1994) (citing legislative history and Restatement sections in support of the conclusion that the FSIA is not applicable to individuals). The question whether acts such as torture, which are universally prohibited, may be within the scope of an official’s duties was also raised in the Pinochet litigation in the United Kingdom. See Chapter 8, supra.

12. In March 1992 Efraín Bámaca Velásquez was a member of a Guatemalan guerrilla group that sought to overthrow the government. He disappeared. In March 1995 a U.S. Senator announced that Velásquez had been killed pursuant to the order of a CIA “asset.� Harbury’s wife then sued, on her own behalf and as administratrix of her husband’s estate, officials of the CIA, U.S. State Department, and the National Security Council (NSC). She sought damages for alleged deprivation of her husband’s Fifth Amendment due process rights, violation of her right to familial association, and interference with her right of access to the U.S. courts. These claims were based upon two broad allegations: First, CIA officials knowingly engaged in, directed, collaborated and conspired in her husband’s secret imprisonment, torture, and extrajudicial murder. Second, NSC and State Department officials, while Bámaca was still alive, told her that they were investigating the whereabouts and status of her husband, but had discovered nothing even though they allegedly knew that her husband was alive and being tortured by CIA “assets.� In addition, after his death, these officials continued falsely to tell her that he was alive and that they were investigating the issues. Harbury v. Deutsch, 1999 WL 33456919, at 1-3 (D.D.C. 1999.)

The District Court for the District of Colombia dismissed the complaint on the grounds that there was no allegation of constitutional right violations and that the defendants were entitled to qualified immunity. Id. at 14. Thereafter the U.S. Court of Appeals for the District of Colombia affirmed the dismissal of the Fifth Amendment and familial association claims, but reversed the dismissal of the access to the courts claim. Harbury v. Deutsch, 233 F.3d 596 (D.C. Cir. 2000); Harbury v. Deutsch, 233 F.3d 596 (D.C. Cir. 2000), rehg denied, 244 F.3d 956 (D.C. Cir. 2001), rehg en banc denied, 244 F.3d 960 (D.C. Cir. 2001).

The U.S. Supreme Court then unanimously reversed the circuit court’s decision sustaining the claim for denial of access to the courts. Christopher v. Harbury, 536 U.S. 403 (2002). In an opinion by Justice Souter, the Court held that such a claim had to allege an underlying cause of action, the official acts that frustrated the litigation, and a remedy that may be awarded as recompense but not otherwise available in a suit that may yet be brought. Id. at 412. Harbury’s claim, however, failed to meet this standard. Id. at 419-22. The case was remanded for further proceedings with respect to her tort claims that remain pending in the district court, although the Court noted problems inherent in such claims. Id.at 420 n.19, 421-22.

13. A foreign state may waive its sovereign immunity as well as the immunity enjoyed by a current or former government official. In fact, it implicitly waives immunity by participating in litigation; for example, by filing a responsive pleading without raising the sovereignty defense. Drexel Burnham Lambert Group, Inc. v. Committee of Receivers for A.W. Galadari, 810 F. Supp. 1375, 1383 (S.D.N.Y. 1993).

One court held that the following waiver by Haiti constituted a waiver of any and all immunity enjoyed by a former official of its military:

[Defendant], ex-Lieutenant-General of the Armed Forces of Haiti and former President of the Military Government of the Republic of Haiti, enjoys absolutely no form of immunity, whether it be of a sovereign, a chief of state, a former chief of state; whether it be diplomatic, consular, or testimonial immunity, or all other immunity, including immunity against judgment, or process, immunity against enforcement of judgments and immunity against appearing before court before and after judgment.

Paul v. Avril, 812 F. Supp. 207, 210 (S.D. Fla. 1993). In rejecting Avril’s head of state defense, the court also rejected his argument that according weight to the waiver “would encourage countries to disavow those former leaders who do not curry favor with the new government.� Id. at 210-11. In 1994 the judge entered a default judgment for $41 million.

Further, a waiver must not be conditional. In Can-Am Int’l, LLC v. Republic of Trinidad & Tobago, 2006 U.S. App. LEXIS 5231 at *18-19 (5th Cir. 2006), the court held that the defendant’s conditional waiver of immunity was not effective because the condition of the waiver had not been met. Another court noted that waivers must be explicit, presumably to prevent “inadvertent, implied or constructive waiver in cases where the intent of the foreign state is equivocal or ambiguous.� Lafontant v. Aristide, 844 F. Supp. 128, 134 (E.D.N.Y. 1994) (quoting Libra Bank Ltd. v. Banco Nacional de Costa Rica, 676 F.2d 47, 49 (2d Cir. 1982)). The court also implied that the waiver must be accepted as such by the U.S. Government. Id.

14. Does the FSIA apply to criminal cases? In United States v. Hendron, the court held that the FSIA did not preclude a conviction for conspiracy and armed-weapons charges against a director of a state-owned Polish corporation. 813 F. Supp. 973 (E.D.N.Y. 1993). The court reasoned that both the words of the Act and the legislative history implied an intent to limit it to civil actions. Id. at 974-76.

In Gould, Inc. v. Mitsui Mining & Smelting Co., however, a different court held that the FSIA granted immunity to a foreign company acting as an agent of the French Government. 750 F. Supp. 838, 843-44 (N.D. Ohio 1990). The court reasoned that the FSIA was “the only method of obtaining jurisdiction over foreign sovereigns.� Id. Since “[t]he [Amerada Hess] Court did not limit its conclusion concerning the FSIA to civil cases,� the court held that the U.S. had no jurisdiction to prosecute a French corporation for mail or wire fraud or for violations of the Racketeer Influenced and Corrupt Organizations Act. Id. at 844.

15. The FSIA limits the type of damages that may be recovered from a defendant state:

[T]he foreign state shall be liable in the same manner and to the same extent as a private individual under like circumstances; but a foreign state except for an agency or instrumentality thereof shall not be liable for punitive damages . . . .

28 U.S.C. § 1606 (2000).

In Flatow, discussed supra at 70, the court nonetheless ordered Iran to pay punitive damages to the plaintiff. The court based its decision on the Flatow Amendment to the FSIA, which was published as a note to § 1605(a)(7):

(a) An official, employee, or agent of a foreign state designated as a state sponsor of terrorism designated under section 6(j) of the Export Administration Act of 1979 . . . while acting within the scope of his or her office, employment, or agency shall be liable to a United States national or the national’s legal representative for personal injury or death caused by acts of that official, employee, or agent for which the courts of the United States may maintain jurisdiction under section 1605(a)(7) of title 28, United States Code, for money damages which may include economic damages, solatium,[] pain, and suffering, and punitive damages if the acts were among those described in section 1605(a)(7).

The court concluded that a foreign state could be liable for punitive damages for the conduct of its agents by invoking respondeat superior and vicarious liability theories. Flatow v. Islamic Republic of Iran, 999 F. Supp. 1, 26-27 (D.D.C. 1998).

15. For further reading, see:

David J. Bederman, Dead Man’s Hand: Reshuffling Foreign Sovereign Immunities in U.S. Human Rights Litigation (Customary International Human Rights Law: Evolution, Status and Future), 25 Ga. J. Int’l & Comp. L. 255 (1995);

Jennifer A. Gergen, Note, Human Rights and the Foreign Sovereign Immunities Act, 36 Va J. Int’l L. 765 (1996);

Joseph W. Glannon & Jeffery Atik, Politics and Personal Jurisdiction: Suing State Sponsors of Terrorism under the 1996 Amendments to the Foreign Sovereign Immunities Act, 87 Geo. L.J. 675 (1999);

Jeewon Kim, Note and Comment, Making State Sponsors of Terrorism Pay: A Separation of Powers Discourse Under the Foreign Sovereign Immunities Act, 22 Berkeley J. Int’l L. 513 (2004);

Alexander J. Mueller, Nelson v. Saudi Arabia and the Need for a Human Rights Exception to the Foreign Sovereign Immunities Act, 13 N.Y. Int’l L. Rev. 87 (2000);

Michael D. Murray, The Stolen Art of Sovereign Immunity: The Case of Altmann v. Austria, 27 Colum. J.L. & Arts 301 (2004);

Stephen J. Schnably, Foreign Sovereign Immunities Act - denial of immunity for extrajudicial killing - Cuban liability for shooting down civil aircraft - punitive damages - retroactive application of statute recognizing cause of action for human rights violations (Rev.), 92 Am. J. Int’l L. 768 (1998);

Keith E. Sealing, ‘State Sponsors of Terrorism’ Are Entitled to Due Process Too: The Amended Foreign Sovereign Immunities Act Is Unconstitutional, 15 Am. U. Int’l L. Rev. 395 (2000);

Working Group of the American Bar Association, Report, Reforming the Foreign Sovereign Immunities Act, 40 Colum. J. Transnat’l L. 489 (2002).

2. Head of State and Diplomatic Immunity

Head of state immunity shares roots with foreign sovereign immunity, in concepts of comity suggesting that the courts of one nation should not exercise jurisdiction over a foreign sovereign. As noted above, foreign sovereign immunity has evolved in most nations from a doctrine of absolute immunity to one of restrictive immunity, which has been codified in many nations, including the United States. Head of state immunity, in contrast, is not codified in either treaty or statute in the United States, and remains a doctrine of federal common law. In the United Kingdom, as noted in the Pinochet case discussed in Chapter 8, head of state immunity is treated by statute as a type of diplomatic immunity.

Courts have taken different approaches toward the role that the Executive Branch should play when a defendant claims head of state immunity. The Eleventh Circuit surveyed the various approaches in United States v. Noriega, 117 F.3d 1206 (11th Cir. 1997) (footnote omitted):

Generally, the Executive Branch’s position on head-of-state immunity falls into one of three categories: the Executive Branch (1) explicitly suggests immunity; (2) expressly declines to suggest immunity; or (3) offers no guidance. Some courts have held that absent a formal suggestion of immunity, a putative head of state should receive no immunity. See, e.g., In re Doe, 860 F.2d 40, 45 (2d Cir. 1988). In the analogous pre-FSIA, foreign sovereign immunity context, the former Fifth Circuit accepted a slightly broader judicial role. It ruled that, where the Executive Branch either expressly grants or denies a request to suggest immunity, courts must follow that direction, but that courts should make an independent determination regarding immunity when the Executive Branch neglects to convey clearly its position on a particular immunity request. See Spacil v. Crowe, 489 F.2d 614, 618-19 (5th Cir. 1974) (granting petition for writ of mandamus directing district court to follow government’s suggestion of immunity in civil case).

Id. at 1212. The court then applied these ideas to Noriega’s case:

Noriega’s immunity claim fails under either the Doe or the Spacil standard. The Executive Branch has not merely refrained from taking a position on this matter; to the contrary, by pursuing Noriega’s capture and this prosecution, the Executive Branch has manifested its clear sentiment that Noriega should be denied head-of-state immunity.

Id.

The Eleventh Circuit’s decision in Noriega has not escaped criticism. One critic contended that “[b]y basing its denial of immunity on the executive branch’s manifestation of executive intent, rather than applying a legal presumption, the Noriega court further confused the already murky jurisprudence governing head-of-state immunity and placed an important foreign policy power in the judiciary, a branch of government ill-suited for such a responsibility.� Recent Case, United States v. Noriega, 117 F.3d 1206 (11th Cir. 1997), 111 Harv. L. Rev. 849 (1998).

The U.S. Court of Appeals for the 7th Circuit, in Wei Ye v. Jiang Zemin, 383 F.3d 620, 627 (7th Cir. 2004), held that the executive branch’s recommendation of immunity was binding on the court. Plaintiffs, practitioners of Falun Gong, sued under the ATCA, alleging that the defendant, the former President of China, engaged in genocide, torture, and other human rights abuses. Id. at 622. The plaintiffs served him with papers when he visited the U.S. Id. at 623 No answer was filed, and the plaintiffs moved for a default judgment. The executive branch intervened and asserted head-of-state immunity on the defendant’s behalf. Id. The court noted that the Supreme Court had held that “the Executive Branch’s suggestion of immunity is conclusive and not subject to judicial inquiry.� Id. at 626. Plaintiffs argued, however, that a state cannot provide immunity to a defendant who is accused of violating jus cogens norms. Id. Despite plaintiff’s argument, “a determination by the Executive Branch that a foreign head of state is immune from suit is conclusive and a court must accept such a determination without reference to the underlying claims of a plaintiff.� Id. Deference to the executive branch is proper in areas of foreign relations since the determination to grant, or not grant, immunity may have significant foreign relations consequences. Id. at 627.

One further immunity that may apply in alien tort litigation is diplomatic immunity. In general, diplomatic immunity exempts diplomats from civil and criminal jurisdiction in states to which they are sent, for acts committed within the scope of their diplomatic function. Diplomatic immunity is therefore best understood as immunity from suit rather than immunity from legal liability. Stephen L. Wright, Note, Diplomatic Immunity: A Proposal for Amending the Vienna Convention to Deter Violent Criminal Acts, 5 B.U. Int’l L.J. 177, 177 (1987). The international law of diplomatic immunity is codified in the Vienna Convention on Diplomatic Relations, 23 U.S.T. 3227, T.I.A.S. No. 7502, 500 U.N.T.S. 95, entered into force April 18, 1961, entered into force for the U.S. Dec. 13, 1972. In Tachiona v. United States, 386 F.3d 205 (2d Cir.2004), the court affirmed the dismissal of a case against Zimbabwe’s President and Foreign Minister on the grounds of head of state and diplomatic immunity. In addition, the court reversed the entry of a default judgment against their political party, holding that the service of process on the two officials as agents of the party was a nullity because of their immunity. Id.. at 214-21.

Like head of state immunity, diplomatic immunity is contingent upon official recognition
by the receiving state. United States v. Lumumba, 741 F.2d 12, 15 (2d Cir. 1984) (denying immunity to defendant claiming to be Vice President and Minister of Justice of the Provisional Government of the Republic of New Afrika, a “[n]ation of Afrikans born in North America as a consequence of . . . slavery� encompassing Alabama, Georgia, Louisiana, Mississippi, and South Carolina, because the nation had not been recognized by the Executive Branch). In addition, like other immunities, diplomatic immunity may be waived. Restatement (Third) of the Foreign Relations Law of the United States § 464 comment j (1986). Alternatively, the host state may respond to a criminal or tortious act by declaring the official to be persona non grata and requiring his/her departure.

In the context of the hypothetical case presented at the beginning of this chapter, how might diplomatic immunity limit the ability of the court to adjudicate the plaintiff’s claims? Would the answer be different if some of the defendants had been in the U.S. to attend a U.S.-government-sponsored meeting on the situation in Colombia? What if the U.S. had not yet recognized Colombia as a sovereign state? Or if the defendants were officials of the Colombian government? How would those hypothetical situations affect the defendants’ ability to raise head of state and diplomatic immunities?

For further reading, see:

Amber Fitzgerald, The Pinochet Case: Head of State Immunity Within the United States, 22 Whittier L. Rev. 987 (2001);

Frederic L. Kirgis, Editorial Comment: Understanding the Act of State Doctrine’s Effect, 82 Am. J. Int’l L. 58 (1988);

Tom Lininger, Recent Development, Overcoming Immunity Defenses to Human Rights Suits in U.S. Courts, 7 Harv. Hum. Rts. J. 177, 191-96 (1994) (discussing strategies for suing individuals under the ATCA and TVPA);

Jerrold L. Mallory, Note, Resolving the Confusion Over Head of State Immunity: The Defined Rights of Kings, 86 Colum. L. Rev. 169 (1986).

3. The Act of State Doctrine

The Supreme Court delineated the boundaries of the act of state doctrine as follows in Underhill v. Hernandez, 168 U.S. 250, 252 (1897):

Every sovereign State is bound to respect the independence of every other sovereign State, and the courts of one country will not sit in judgment on the acts of the government of another done within its own territory. Redress of grievance by reason of such acts must be obtained through the means open to be availed of by sovereign powers as between themselves.

A century ago the purpose for the rule thus was to show respect for co-equal sovereigns. More recently, the Supreme Court noted that the doctrine is “a consequence of domestic separation of powers, reflecting ‘the strong sense of the Judicial Branch that its engagement in the task of passing on the validity of foreign acts of state may hinder’ the conduct of foreign affairs.� W.S. Kirkpatrick & Co. v. Environmental Tectonics Corp., Int’l, 493 U.S. 400, 404 (1990) (citing Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 423 (1964)).

As the Court reiterated in Kirkpatrick, those purposes are relevant only to determining “whether, despite the doctrine’s technical availability, it should nonetheless not be invoked.� 493 U.S. at 409. The policies cannot be used to “expan[d] the act of state doctrine . . . into new and uncharted fields.� Id. See generally David Epstein & Jeffrey L. Snyder, International Litigation: A Guide to Jurisdiction, Practice and Strategy § 8.02[2] (1993).

As you read the following excerpt note the court’s discussion of the interplay between the FSIA and the act of state doctrine. In addition, think about how the policies underlying the act of state doctrine influenced the court’s decision.

* * * * *

Doe I v. Liu Qi, 349 F. Supp. 2d 1258 (N.D. Cal. 2004) (footnotes and several citations omitted):

[Plaintiffs alleged that since Falun Gong has been banned in China, over 100,000 practitioners have been subjected to some form of punishment including arrest and detention in prison facilities, labor camps, and mental hospitals, brutal beatings, starvation, and other forms of torture. Plaintiffs moved for default judgment against the defendants, local government officials in China.] . . .

VI. ACT OF STATE DOCTRINE . . .

A. Background on the Act of State Doctrine

The Court’s classic statement of the act of state doctrine was articulated in Underhill v. Hernandez, 168 U.S. 250 (1887). In Underhill, an American citizen filed a damages action alleging that a Venezuelan military commander -- whose government was later recognized by the U.S. -- unlawfully assaulted, coerced and detained him in Venezuela. [The court then quotes the language from Underhill quoted above.]
The leading modern case on the act of state doctrine is Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964). In Sabbatino, the plaintiff challenged the taking of property under a controversial principle of customary international law after the Cuban government took property within its own territory. In response to a U.S. reduction in Cuba’s sugar quota, which Cuba characterized as an act of political aggression, Cuba nationalized property (sugar) in which America nationals had an interest. In this context, the Sabbatino Court declined to adopt a broad and inflexible rule, but rather held:

We decide only that the Judicial Branch will not examine the validity of a taking of property within its own territory by a foreign sovereign government, extant and recognized by this country at the time of suit, in the absence of a treaty or other unambiguous agreement regarding controlling legal principles, even if the Complaint alleges that the taking violates customary international law.

The Court noted that while the act of state doctrine was not mandated by the Constitution, the doctrine nonetheless had “constitutional underpinnings�arising from separation of powers concerns about the competency of the judiciary to make and implement certain decisions in the area of international relations. The doctrine arises out of the basic relationships between branches of government enjoined by a separation of powers; it “concerns the competency of dissimilar institutions to make and implement particular kinds of decisions in the area of international relations.� It “expresses the strong sense of the Judicial Branch that its engagement in the task of passing on the validity of foreign acts of state may hinder rather than further this country’s pursuit of goals both for itself and for the community of nations as a whole in the international sphere.� The doctrine is neither jurisdictional nor constitutionally mandated. Rather, it constitutes a prudential limitation upon the exercise of the court’s power to adjudicate the legality of the acts of a foreign state or its agents. The act of state doctrine has been referred to as the “foreign counter part� to the political question doctrine.

While Sabbatino acknowledged the classic notion that the conduct of the foreign relations of our government is committed by the Constitution to the Executive and Legislative . . . departments, the Court nonetheless observed that “it cannot of course be thought that every case or controversy which touches foreign relations lies beyond judicial cognizance,� and that “the act of state doctrine . . . does not irrevocably remove from the judiciary the capacity to review the validity of foreign acts of state.�

In sum, the act of state doctrine encompasses two related concerns: respecting the sovereignty of foreign states and the separation of powers in administering foreign affairs of this nation. Balanced against those concerns, however, is the power and duty of the court to exercise its judicial functions. In assessing that balance, Sabbatino announced a three-part test for determining when to apply the act of state doctrine:

It should be apparent that the greater the degree of codification or consensus concerning a particular area of international law, the more appropriate it is for the judiciary to render decisions regarding it, since the courts can then focus on the application of an agreed principle to circumstances of fact rather than on the sensitive task of establishing a principle not inconsistent with the national interest or with international justice. It is also evident that some aspects of international law touch much more sharply on national nerves than do others; the less important the implications of an issue are for our foreign relations, the weaker the justification for exclusivity in the political branches. The balance of relevant considerations may also be shifted if the government which perpetrated the challenged act of state is no longer in existence . . . for the political interest of this country may, as a result, be measurably altered.

The Ninth Circuit has further held that the court must additionally consider “whether the foreign state was acting in the public interest.� Liu v. Republic of China, 892 F.2d 1419, 1432 (9th Cir. 1989).

In Sabbatino, the Court held that the act of state doctrine prohibited a challenge to the validity of a decree of the Government of Cuba expropriating certain property. The Court noted that there was no international consensus upon the limitations on the state’s power to expropriate the property of aliens. Although the State Department declined to make any statement one way or the other bearing on the litigation, the Court noted the danger of interfering and embarrassing the Executive Branch should the Court adjudicate the validity of the expropriation decree. The Court concluded, “however offensive to the public policy of this country and its constituent States an expropriation of this kind may be, we conclude that both the national interest and progress toward the goal of establishing the rule of law among nations are best served by maintaining intact the act of state doctrine in this realm of its application.�

Normally, the burden of proving acts of state rests on the party asserting the applicability of the doctrine. However, where there is a “potential for embarrassing the Executive Branch,� the act of state doctrine may be raised sua sponte. Obviously, where, as here, the Defendants have defaulted, the issue is not raised by either party. Instead, it is raised sua sponte by this Court.

Plaintiffs contend that under Sosa, the act of state doctrine does not apply where the claims satisfy the standard of specificity and universality the Court required. [They] argue that where “a court is presented with a claim based on international norms of equal definite content and acceptance among civilized nations than the historical paradigms familiar when section 1350 was enacted’ then it no longer is suitable or appropriate to weigh the proposed standard against potential political or foreign policy consequences.�

The Plaintiffs misread Sosa. It is true that the Court cited as one of several reasons that counsel caution in finding a common law claim actionable under the ATCA the concern that permitting a private cause of action could have potential implications for the foreign relations of the United States and that the courts should be “particularly wary of impinging on the discretion of the Legislative and Executive Branches in managing foreign affairs.� This, along with other factors, led the Court to require a high degree of specificity and clarity in finding an enforceable common law claim under the ATCA. However, the Court in no way intimated that once that standard is met, that no consideration may be given to similar concerns in determining whether such a case may proceed.

Indeed, the Court specifically noted, “This requirement of clear definition is not meant to be the only principle limiting the availability of relief in the federal courts for violations of customary international law.� As one example, the Court noted that consideration might be given to the need to exhaust remedies available in the domestic legal system. Addressing the issue raised by plaintiffs herein, the Court went on to state, “Another possible limitation that we need not apply here is a policy of case-specific deference to the political branches.� The Court cited as one example pending suits in federal district court seeking damages from various corporations alleged to have participated in, or abetted, the regime of apartheid that formerly controlled South Africa. Noting that both the governments of South Africa and the United States believe that these cases interfere with the policy embodied by South Africa’s Truth and Reconciliation Commission, the Court observed, “in such cases, there is a strong argument that federal courts should give serious weight to the Executive Branch’s view of the case’s impact on foreign policy.� The act of state doctrine embodies these same concerns, and thus consideration may properly be given to it in the cases at bar. . . .

B. Whether Defendants’ Conduct Constituted Acts of State

The act of state doctrine presupposes an “act of state.� It arises only when the court is required to rule on the legality of an “official act of a foreign sovereign performed within its own territory.� Thus, were the suits at bar brought directly against the PRC, the act of state analysis would undoubtedly apply.

The instant cases, however, are brought against two officials -- the Mayor of Beijing (now a high ranking member of the Chinese Communist Party) and the Deputy Provincial Governor of the Liao Ning Province. The question is whether the alleged conduct of these two individual officials constitutes an act of state.

The Liu and Xia Plaintiffs argue that because their conduct violated customary standards of international law and/or jus cogens norms, their acts cannot be deemed to be official acts of the state, and thus the act of state doctrine cannot be invoked. As with the parallel argument made with respect to the FSIA immunity of individual officials, however, this argument is not supported by case law. Whether the acts of individual officials are attributable to the foreign state so as to constitute acts of state turns not on international law, but on domestic law and policy of the foreign state. . . .

The cases which have addressed whether conduct of individual officials constitutes an act of state have focused on whether the official acted consistent with the foreign state’s laws or with approval by the national government, not on whether his or her acts violated international standards. See Kadic, 70 F.3d at 250 (doubting whether acts of state official “taken in violation of a nation’s fundamental law and wholly unratified by that nation’s government� could be properly characterized as an act of state); Filartiga v. Pena-Irala, 630 F.2d 876, 889 (2d Cir. 1980) (doubting whether action by a state official “in violation of the Constitution and laws of the Republic of Paraguay, and wholly unratified by that nations government� could properly be characterized as an act of state).

The question is whether, as measured by domestic laws and policies of the foreign state, the acts of the defendant officials in this case are sufficiently attributable to the government of China so as to constitute an act of state. The Ninth Circuit has not had an opportunity to address the parameters of this question. In Republic of the Philippines v. Marcos, 862 F.2d 1355 (9th Cir. 1988) (en banc), the court applied the Sabbatino analysis to a RICO suit against former President Marcos and his wife and held, after balancing various factors, including the fact that Marcos had been deposed and that the United States did not oppose adjudication of the suit, that the act of state defense did not bar the suit. Since the Marcoses had at that point in the litigation “offered no evidence whatsoever to support the classification of their acts as acts of state,� the court had no occasion to address under what circumstances the acts of an official are sufficient to implicate the act of state doctrine.

. . . [T]he [Kadic] court indicated there is no act of state where both of two conditions are met: (1) the conduct violated the fundamental laws of the foreign sovereign and (2) the conduct was “wholly unratified� by the nation’s government. In the cases at bar, only the first condition is met. The Court concludes the second condition is essential to an act of state.

The policy considerations underlying the act of state doctrine are implicated where a public official engages in conduct in executing policy authorized or ratified by the government even if that policy is covert and inconsistent with official law. The doctrine’s concern of affording respect and comity between and among sovereign nations is implicated whenever the official executes the policy of the sovereign. That the government’s policy is covert or inconsistent with its domestic law does not gainsay the fact that conduct in execution of that policy is a “governmental act� and the “exercise [of] powers peculiar to sovereigns.� Enactment or issuance of a “statute, decree, order, or resolution� by the government is one way in which the state exercises its sovereign power. Creation and implementation of policy, even if that policy is covert, is another.

Moreover, the concerns of the act of state doctrine for the separation of powers, the desirability of having our government speak with one coherent voice on matters of foreign affairs, and the interest in avoiding conflict with and embarrassment of the Executive Branch are implicated where the conduct at issue is the subject of diplomacy. Despite the PRC’s public disclaimer of human rights violations and wrongdoing in its treatment of the Falun Gong movement, the State Department has addressed the issue in its diplomatic communications with China. As the letter from the State Department filed herein states, “the United States has repeatedly made these concerns known to the Government of the PRC and has called upon it to respect the rights of all its citizens, including Falun Gong practitioners. Our critical views regarding the PRC Government’s abuse and mistreatment of practitioners of the Falun Gong movement are a matter of public record . . .� The State Department also states that the “Executive Branch has many tools at its disposal to promote adherence to human rights in China, and it will continue to apply those tools within the context of our broader foreign policy interests.� It urges that “U.S. courts should be cautious when asked to sit in judgment on the acts of foreign officials taken within their own countries pursuant to their government’s policy,� and that “such litigation can serve to detract from, or interfere with, the Executive Branch’s conduct of foreign policy.� Where a foreign state’s policy is the specific subject of foreign diplomacy by the State Department, the separation of powers considerations underpinning the act of state doctrine are implicated regardless of whether the subject policy is consistent with the foreign state’s domestic laws.

The analysis of the act of state doctrine thus diverges from that of FSIA immunity. In holding the FSIA does not supersede the act of state doctrine, the Ninth Circuit noted that the act of state doctrine addresses different concerns than the doctrine of sovereign immunity. The law of sovereign immunity goes to the jurisdiction of the court, whereas the act of state doctrine is prudential. Sovereign immunity is a principle of international law recognized by the United States by statute whereas the act of state doctrine is a domestic legal principle arising from the peculiar role of American courts. The doctrine “recognizes not only the sovereignty of foreign states, but also the sphere of power of the co-equal branches of our government.� “The doctrine is meant to facilitate the foreign relations of the United States . . .� The FSIA embodies the principle of sovereign immunity law under which a public official is stripped of his or her sovereign immunity defense if he or she exceeds the scope of a valid grant of authority (e.g. by committing an unconstitutional act or otherwise violating applicable law). However, the policy concerns embodied in the act of state doctrine obtain whenever the official acts pursuant to authority of or ratification by the national government regardless of whether those acts comply with official domestic law.

Accordingly, this Court finds that in the context of these default proceedings, the evidence establishes that the Defendants’ alleged conduct was not “wholly unratified� by the PRC. It was pursuant to policy and therefore constituted acts of state.

[The court concluded that the act of state doctrine barred claims for damages and injunctive relief against the defendants, but it did not bar the claims for declaratory relief.]

* * * * *

Like sovereign immunity the act of state doctrine bars U.S. courts from hearing certain claims. In W.S. Kirkpatrick & Co. v. Environmental Tectonics Corp., Int’l, 493 U.S. 400, 401 (1990), the Supreme Court held that the doctrine did not bar courts from adjudicating disputes that did not “rest upon the asserted invalidity of an official act of a foreign sovereign, but . . . require[d] imputing to foreign officials an unlawful motivation (the obtaining of bribes) in the performance of such an official act.� The case involved a U.S. company accused of offering a bribe to the Nigerian Government in exchange for a construction contract -- an act which violates both U.S. and Nigerian law. An unsuccessful bidder for the contract sued the company and the Nigerian Government for damages. The defendants claimed the action was barred by the act of state doctrine. Id. at 401-02.

Justice Scalia, writing for a unanimous Court, concluded the doctrine was inapplicable to this case:

The parties have argued at length about the applicability of . . . possible exceptions, and, more generally, about whether the purpose of the act of state doctrine would be furthered by its application in this case. We find it unnecessary, however, to pursue those inquiries, since the factual predicate for application of the act of state doctrine does not exist. Nothing in the present suit requires the Court to declare invalid, and thus ineffective as “a rule of decision for the courts of this country,� the official act of a foreign sovereign.

In every case in which we have held the act of state doctrine applicable, the relief sought or the defense interposed would have required a court in the United States to declare invalid the official act of a foreign sovereign performed within its own territory. In Underhill v. Hernandez, 168 U.S. 250, 254 . . . (1897), holding the defendant’s detention of the plaintiff to be tortious would have required denying legal effect to “acts of a military commander representing the authority of the revolutionary party as government, which afterwards succeeded and was recognized by the United States.� In Oetjen v. Central Leather Co., [246 U.S. 297, 304 (1918)], and in Ricaud v. American Metal Co., [246 U.S. 304, 310 (1918)], denying title to the party who claimed through purchase from Mexico would have required declaring that government’s prior seizure of the property, within its own territory, legally ineffective. In Sabbatino, upholding the defendant’s claim to the funds would have required a holding that Cuba’s expropriation of goods located in Havana was null and void. In the present case, by contrast, neither the claim nor any asserted defense requires a determination that Nigeria’s contract with Kirkpatrick [the U.S. company] . . . was, or was not, effective.

Id. at 405-06.

The Court then concluded,

The short of the matter is this: Courts in the United States have the power, and ordinarily the obligation, to decide cases and controversies properly presented to them. The act of state doctrine does not establish an exception for cases and controversies that may embarrass foreign governments, but merely requires that, in the process of deciding, the acts of foreign sovereigns taken within their own jurisdictions shall be deemed valid. That doctrine has no application to the present case because the validity of no foreign sovereign act is at issue.

The act of state doctrine thus should be understood as a rule limiting the scope of a foreign court’s inquiry into the legal validity of certain acts of a sovereign. As stated in Kirkpatrick, the doctrine does not result in dismissal for lack of jurisdiction, but precludes a court from questioning the validity of certain actions.

NOTES AND QUESTIONS

1. Think about the interplay between foreign sovereign immunity, head of state immunity, and the act of state doctrine. What are the differences and similarities? In what different situations is each one applicable? Why do three doctrines still exist? Note that foreign sovereign immunity is based on customary international law, but that there are varieties of state practice. The FSIA is simply one variant, and reflects particular policy choices by Congress. Head of state immunity has roots in customary international law and remains a common law doctrine in the U.S. The Executive Branch plays a significant role in cases where head of state immunity is raised, although decisions on foreign sovereign immunity have been committed to the judiciary under the FSIA. Diplomatic immunity is governed by treaty and implementing statutes. The act of state doctrine is a judge-created doctrine of federal common law, and is not jurisdictional. It is based on separation of powers notions and directs courts how to handle certain issues that may arise in litigation, even where no foreign state or official is a party.

2. Is there a relation between proving the existence of an international tort and determining whether the act of state doctrine bars adjudication? Remember that to prove many international torts, plaintiff must show the defendant was acting under color of law.

3. Significant precedential rules have emerged as a result of suits against Ferdinand Marcos, former leader of the Philippines. In Republic of the Philippines v. Marcos, 806 F.2d 344 (2d Cir. 1986) (Marcos I), the Philippines sued Marcos to recover property he embezzled while in power. The Philippines was successful in obtaining a preliminary injunction limiting Marcos’s power to transfer the property while the trial was pending. Id. at 346. Upholding the injunction, the court rejected the argument that the act of state doctrine shielded the embezzlement from judicial review. The court concluded that embezzling property was not a public act, and, thus, that the act of state doctrine did not apply. Id. at 358. The court noted, however, that even acts illegal in the country in which they occur can be considered acts of state if there is a public purpose. Marcos’s embezzlement, which contravened Philippine law, could have been covered by act of state immunity if it had not been merely a private act. Id. at 359.

In Marcos I, the court questioned whether foreign sovereign immunity extended to its former head of state. The court noted “[t]he rationale underlying sovereign immunity -- avoiding embarrassment to our government and showing respect for a foreign state -- may well be absent when the individual is no longer head of state and the current government is suing him.� The court did not reach a conclusion, however, because it determined the appellants lacked standing to raise the claim. Id.

In Republic of the Philippines v. Marcos, 862 F.2d 1355 (9th Cir. 1988) (en banc), cert. denied, 490 U.S. 1035 (1989) (Marcos II), the court reached a conclusion similar to that in Marcos I. In Marcos II, The Philippines again sued Marcos, this time under the Racketeer Influenced and Corrupt Organizations Act, for mail fraud, wire fraud, and transporting stolen property in foreign or interstate commerce. Id. at 1358. In affirming a preliminary injunction enjoining Marcos from disposing of any assets which were not needed to pay attorney fees or “normal� living expenses, the court rejected Marcos’s act of state defense. It noted that the doctrine was not to be used to protect a deposed head of state who was now being sued by his former country. Instead, it should only apply to heads of state currently in power. Id. at 1360-61. The court reasoned, “the [act of state] doctrine is meant to facilitate the foreign relations of the United States, not to furnish the equivalent of sovereign immunity to a deposed leader.� Id. at 1361.

In her concurring and dissenting opinion, Judge Schroeder expanded on that idea. After concluding that the act of state doctrine is not jurisdictional but rather a self-imposed limitation on the judiciary, she argued that the rationale behind the doctrine does not apply when the defendant is a government no longer in power. Id. at 1368-69. Showing respect for an independent sovereign and maintaining a balance in the separation of powers between the executive and judicial branches are less important when the defendant no longer enjoys a preferred position as leader of a foreign state. Id.

4. In Mujica v. Occidental Pet. Corp., supra, at 26, before the court dismissed the case as non-justiciable, it stated that the act of state doctrine did not apply because the plaintiffs’ ATS claims of extrajudicial killing; torture; crimes against humanity; war crimes; and cruel, inhuman, and degrading treatment were based on binding international norms and since the Colombian Air Force allegedly breached these norms, it was no longer acting in the public interest. These reasons outweighed any adverse foreign policy implications. Mujica, 381 F. Supp. 2d at 1191.

5. Filartiga, excerpted supra at 11, did not address the act of state issue because the defense was raised for the first time on appeal. The court noted that it doubted “whether action by a state official in violation of the Constitution and laws of the Republic of Paraguay, and wholly unratified by the nation’s government, could properly be characterized as an act of state.� 630 F.2d at 889. May an act violating laws of an official’s country nonetheless be an act of state? See Marcos I, discussed supra note 3. If a government asserts that wrongdoing was not part of an official’s duties, is that assertion dispositive of the act of state doctrine’s applicability? Or relevant to determining whether the doctrine bars adjudication? Would the answer differ if the official were part of a government that had been deposed but would have ratified the action had it remained in power?

4. Statute of Limitations, Damages, and Choice of Law

Filartiga v. Peña-Irala, 577 F. Supp. 860 (E.D.N.Y. 1984) (several citations omitted):

[This opinion was issued on remand from Filartiga v. Peña-Irala, 630 F.2d 876 (2d Cir. 1980), excerpted supra at 11.]

NICKERSON, District Judge. . . .

III

Following remand Peña took no further part in the action. This court granted a default and referred the question of damages to [a] Magistrate . . .. The Magistrate . . . recommended damages of $200,000 for Dr. Joel Filartiga and $175,000 for Dolly Filartiga. Plaintiffs filed objections to the report, and the matter is now here for determination. . . .

The common law of the United States includes, of course, the principles collected under the rubric of conflict of laws. For the most part in international matters those principles have been concerned with the relevant policies of the interested national states, and with “the needs� of the “international systems.� Restatement (Second) of Conflict of Laws (1971) § 6(2). The chief function of international choice-of-law rules has been said to be to further harmonious relations and commercial intercourse between states. Id., comment d.

However, where the nations of the world have adopted a norm in terms so formal and unambiguous as to make it international “law,� the interests of the global community transcend those of any one state. That does not mean that traditional choice-of-law principles are irrelevant. Clearly the court should consider the interests of Paraguay to the extent they do not inhibit the appropriate enforcement of the applicable international law or conflict with the public policy of the United States.

In this case the torture and death of Joelito occurred in Paraguay. The plaintiffs and Peña are Paraguayan and lived in Paraguay when the torture took place . . .. It was in Paraguay that plaintiffs suffered the claimed injuries, with the exception of the emotional trauma which followed Dolly Filartiga to this country. The parties’ relationships with each other and with Joelito were centered in Paraguay.

Moreover, the written Paraguayan law prohibits torture. The Constitution of Paraguay, art. 50. The Paraguayan Penal Code, art. 337, provides that homicide by torture is punishable by a imprisonment for 15 to 20 years. Paraguay is a signatory to the American Convention on Human Rights, which proscribes the use of torture. Paraguayan law purports to allow recovery for wrongful death, including specific pecuniary damages, “moral damage,� and court costs and attorney’s fees. Thus, the pertinent formal Paraguayan law is ascertainable.

All these factors make it appropriate to look first to Paraguayan law in determining the remedy for the violation of international law. It might be objected that, despite Paraguay’s official ban on torture, the “law� of that country is what it does in fact, and torture persists throughout the country.

Where a nation’s pronouncements form part of the consensus establishing an international law, however, it does not lie in the mouth of a citizen of that nation, though it professes one thing and does another, to claim that his country did not mean what it said. In concert with the other nations of the world Paraguay prohibited torture and thereby reaped the benefits the condemnation brought with it. Paraguayan citizens may not pretend that no such condemnation exists. . . .

To the extent that Peña might have expected that Paraguay would not hold him responsible for his official acts, that was not a “justified� expectation, Restatement (Second) of Conflict of Laws (1971) § 6(2)(d) and comment g, so as to make unfair the application to him of the written law of Paraguay.

IV

Plaintiffs claim punitive damages, and the Magistrate recommended they be denied on the ground that they are not recoverable under the Paraguayan Civil Code. While compensable “moral� injuries under that code include emotional pain and suffering, loss of companionship and disruption of family life, plaintiffs’ expert agrees that the code does not provide for what United States courts would call punitive damages. Paraguayan law, in determining the intensity and duration of the suffering and the consequent “moral� damages, takes into account the heinous nature of the tort. However, such damages are not justified by the desire to punish the defendant. They are designed to compensate for the greater pain caused by the atrocious nature of the act.

Yet because, as the record establishes, Paraguay will not undertake to prosecute Peña for his acts, the objective of the international law making torture punishable as a crime can only be vindicated by imposing punitive damages. . . .

Moreover, there is some precedent for the award of punitive damages in tort even against a national government. . . .

Where the defendant is an individual, the same diplomatic considerations that prompt reluctance to impose punitive damages are not present. . . .

This court concludes that it is essential and proper to grant the remedy of punitive damages in order to give effect to the manifest objectives of the international prohibition against torture.

V

In concluding that the plaintiffs were entitled only to damages recoverable under Paraguayan law, the Magistrate recommended . . . against an award of punitive damages and of $10,364 in expenses incurred in connection with this action. Plaintiffs object only to these . . . recommendations. . . .

Chief among the considerations the court must weigh is the fact that this case concerns not a local tort but a wrong as to which the world has seen fit to speak. Punitive damages are designed not merely to teach a defendant not to repeat his conduct but to deter others from following his example. . . .

There are no binding precedents to guide the court in determining what amount lies within those respectable bounds that hedge the judiciary and yet may serve to come to the attention of those who think to practice torture . . .

The record in this case shows that torture and death are bound to recur unless deterred. This court concludes that an award of punitive damages of no less that $5,000,000 to each plaintiff is appropriate to reflect adherence to the world community’s proscription of torture and to attempt to deter its practice.
* * * * *

In Arce v. Garcia, 434 F.3d 1254 (11th Cir. 2006), three Salvadoran refugees brought suit under the ATS and TVPA alleging that between 1979 and 1983, they were tortured by the defendants, two leaders of the Salvadoran military. The plaintiffs brought suit in 1999. The defendants argued that the plaintiffs’ claims should be barred by the TVPA’s 10-year statute of limitations. The district court denied the defendants’ motion to dismiss. The Court of Appeals for the 11th Circuit, in deciding whether the statute of limitations should be tolled, noted that:

We look to the relevant statute for guidance in determining whether equitable tolling is appropriate in a given situation. “The basic question to be answered in determining whether, under a given set of facts, a statute of limitations is to be tolled, is one ‘of legislative intent whether the right shall be enforceable . . . after the prescribed time.’� We glean legislative intent from “the purposes and policies underlying the limitation provision, the Act itself, and the remedial scheme developed for the enforcement of the rights given by the Act.�

Id. at 1261 (citations omitted). Further, Congress provided explicit guidance regarding equitable tolling in the TVPA context:

The legislation provides for a 10-year statute of limitations, but explicitly calls for consideration of all equitable tolling principles in calculating this period with a view toward giving justice to plaintiff’s rights. Illustrative, but not exhaustive, of the types of tolling principles which may be applicable include the following. The statute of limitations should be tolled during the time the defendant was absent from the United States or from any jurisdiction in which the same or similar action arising from the same facts may be maintained by the plaintiff, provided that the remedy in that jurisdiction is adequate and available. Excluded also from calculation of the statute of limitations would be the period when a defendant has immunity from suit. The statute of limitations should also be tolled for the period of time in which the plaintiff is imprisoned or otherwise incapacitated. It should also be tolled where the defendant has concealed his or her whereabouts or the plaintiff has been unable to discover the identity of the offender.

Id. at 1262 (quoting S. Rep. No. 102-249, at 10-11 (footnoted omitted))

The evidence presented to the district court established that a brutal civil war ravaged El Slavador until 1992, and that during this period the defendants held positions of power. Id. at 1264. Both defendants became permanent residents of the United States in 1989, and that until th end of the civil war, the military would have used its power to thwart any efforts to redress the human rights violations that the defendants allegedly perpetrated. Id. at 1263. Given these findings of fact:

it was well within the district court’s discretion to toll the statute of limitations until the defendants left El Salvador to reside in the United States . . .. The TVPA’s legislative history shows Congress’s clear intent that courts toll the statute of limitations so long as the defendants are outside the reach of the United States courts. Such tolling is especially appropriate in this case; [the defendants successively] held one of the most important positions of power within the Salvadoran military until 1989. . . . When we toll the statute of limitations until the defendants became United States residents, it becomes clear that [plaintiffs’] claims are timely; they filed suit on May 11, 1999, within the ten-year statute of limitations for the TVPA and the ATCA.

NOTES AND QUESTIONS

1. Plaintiffs who prevail against defendants on an ATCA or a TVPA claim may encounter problems when attempting to collect damages. Often, defendants are former dictators or high ranking officials who have hidden their resources in unreachable locations. Collection may be further complicated by the fact that the plaintiffs are represented by public interest organizations lacking the funds to pursue enforcement of a judgment. See George Norris Stavis, Collecting Judgments in Human Rights Torts Cases–Flexibility for Non-Profit Litigators?, 31 Colum. Hum. Rts. L. Rev. 209, 214-17 (1999).

The Filartiga plaintiffs have been unable to collect the award of $10.4 million. Peña did not have assets in the United States; efforts to recover in Paraguay have been unsuccessful. Nonetheless, what other benefits may have come from the litigation? Recall the discussion in part C, supra at 31, regarding the various purposes of ATCA litigation.

The Alejandre plaintiffs, discussed supra at 69, tried to collect their judgment by garnishing bank accounts belonging to a certain Cuban telecommunications company. They were unsuccessful because the Eleventh Circuit held that the company, as an instrumentality of the Cuban Government, had a separate judicial status from the government. Alejandre v. Telefonica Larga Distancia, de Puerto Rico, Inc., 183 F.3d 1277, 1278 (11th Cir. 1999). As a result, the company’s bank accounts could not be used to satisfy a judgment against the Cuban Government. Id.

The road was finally cleared for the Alejandre families to collect their judgment in February 2001. The day before he left office in January 2001, President Clinton signed an executive order permitting access to Cuban Government funds held in American banks. The U.S. Treasury Secretary thereupon authorized the release of $96.7 million in damages to the families. See Christopher Marquis, Families Win Cuban Money in Pilots’ Case, N.Y. Times, Feb. 14, 2001, at A21.

The plaintiffs in the Flatow case, discussed supra at 70, have so far been unable to collect the damages they were awarded. After the judgment was rendered, the U.S. Government intervened to block the attachment of Iran’s property in the U.S. The U.S. Government argued that the Washington D.C. property which the plaintiffs attempted to attach was diplomatic property and therefore did not fall within the FSIA’s reach. See John F. Murphy, Civil Liability for the Commission of International Crime as an Alternative to Criminal Prosecution, 12 Harv. Hum. Rts. J. 1, 45 (1999).

In 1996, after a twenty-year legal struggle, the plaintiff in Siderman, discussed supra at 66, finally reached a settlement agreement with the Republic of Argentina. Although the terms of the settlement agreement were confidential, Siderman reportedly received close to six million dollars in damages. See Tim Golden, Argentina is Reported to Agree to Settle Rights Suit in the U.S., N.Y. Times, Sept. 4, 1996, at A16.

2. It is important to note that the ATS does not actually contain a statute of limitations. In Forti I, supra at 25, the court held that the statute of limitations could be borrowed from the forum state, California, and that defendant’s hiding tolled the statute of limitations. The statute of limitations issue also arose in Iwanowa v. Ford Motor Co., 67 F. Supp. 2d 424 (D.N.J. 1999). In Iwanowa, the defendant asked the court to dismiss the plaintiff’s claims under the ATCA on the grounds that the statute of limitations had run. The court acknowledged that the ATCA does not contain a statute of limitations. The court looked for a law similar to the ATCA from which to borrow a statute of limitations and adopted the ten-year period from the TVPA. Id. at 462. The TVPA allows equitable tolling, however.

3. Courts have continued to borrow the 10-year limitations period in the federal TVPA for purposes of ATS claims. Cabello v. Fernandez-Larios, 402 F.3d 1148, 1153-56 (11th Cir. 2005 (per curiam)); Doe v. Saravia, 348 F. Supp.2d at 1146-48. These cases also held that the well-established doctrine for equitable tolling of the limitations period applied for ATS and TVPA claims. In these cases, the court held that such tolling was justified and thus the claims were not barred by the statute of limitations. Cabello, 402 F.3d at 1154-56; Saravia, 348 F. Supp. 2d at 1147-48 (holding that plaintiff could not have obtained justice in Salvadoran and U.S. courts over the 1980 assassination of Archbishop Romero because of legitimate fear of being killed for making such a claim).

4. As discussed in reference to Mujica, supra, at 26, the political question doctrine may bar adjudication of certain claims. This doctrine has been an issue in several recent ATS cases. Schneider v. Kissinger, 412 F.3d 190 (D.C. Cir. 2005) (dismissal of suit against Henry Kissinger, former National Security Advisor to President Nixon, by children and estate of Chilean general who was killed in the 1970 Chilean coup d’etat), cert. denied, 126 S. Ct. 1768 (2006); Presbyterian Church of Sudan v. Talisman Energy, Inc., 2005 WL 2082846, at 8 (S.D.N.Y. 2005) (rejection of such a contention with respect to a suit against the Republic of Sudan and a Canadian energy company even though the U.S. and Canadian governments had requested a dismissal). For further discussion of the political question doctrine see chapter 13, supra.

5. Other doctrines may potentially limit the justiciability of ATS claims. One such doctrine arose in Mujica. Under the foreign affairs doctrine, the court held, state laws may not intrude into foreign affairs, which is a province of the federal government. Mujica, 381 F. Supp. 2d at 1171. Another such doctrine is comity. Sarei v. Rio Tinto PLC, supra (affirming the dismissal of environmental and racial discrimination claims, but not war crimes or crimes against humanity, on basis of comity); Presbyterian Church of Sudan v. Talisman Energy, Inc., supra (rejection of argument that international comity, a discretionary doctrine, called for dismissal; the company knowingly assisted the commission of grave human rights abuses, the compelling need for adjudication of such claims and absence of evidence that the company was acting pursuant to Canadian government policy and that the lawsuit called for judgment about a Canadian policy).

For further discussion of the various doctrines limiting the justiciability of international human rights violations in U.S. courts, see American Soc’y Int’l Law, Foreign Governments in United States Courts, 85 Am. Soc’y Int’l L. Proc. 251 (1991).

6. For further reading, see:

Edward A. Amley Jr., Note, Sue and Be Recognized: Collecting Section 1350 Judgments Abroad (Alien Tort Claims Act codified in 28 United States Code), 107 Yale L.J. 2177 (1998);

Beth Van Schaack, Unfulfilled Promise: The Human Rights Class Action, 2003 U. Chi. Legal F. 279 (2003).

5. Forum Non Conveniens

Defendants in ATCA cases often invoke the doctrine of forum non conveniens. To invoke the doctrine successfully, a defendant must prove (1) that there exists an alternative forum more convenient for the defendant, witnesses, and collection of evidence and (2) that such a forum can provide the plaintiff with some remedy. See Kathryn Lee Boyd, The Inconvenience of Victims: Abolishing Forum Non Conveniens in U.S. Human Rights Litigation, 39 Va. J. Int’l L. 41, 46 (1998).

In the Shell litigation, the plaintiffs’ claim was at first unconditionally dismissed by the trial court based on forum non conveniens. See Wiwa v. Royal Dutch Petroleum Co., No. 96 Civ. 8386, 1998 U.S. Dist. LEXIS 23064 (S.D.N.Y. Sept. 25, 1998). After the dismissal, the plaintiffs moved for reconsideration in light of the Second Circuit’s decision in Jota v. Texaco Inc., 157 F.3d 153 (1998) (holding that dismissal based on forum non conveniens is not appropriate where there is no commitment by the defendant to submit to Ecuadoran courts). The court reconsidered the case and decided to grant in part the plaintiffs’ request for a conditional dismissal. Although the court refused to impose conditions related to substantive English law, the court was willing to impose the following conditions on the dismissal:

[T]hat defendants consent to service of process [in England], comply with all applicable discovery rules, consent to pay any judgment rendered [in England], waive any security bond that might be required and waive any statute of limitations defense if the action is [instituted in England] within one year of the final disposition of this matter.

Wiwa v. Royal Dutch Petroleum Co., No. 96 Civ. 8386, 1999 U.S. Dist. LEXIS 22352 (S.D.N.Y. Jan. 20, 1999), at *8. The plaintiffs appealed to the Second Circuit.

The Second Circuit clarified the law regarding the use of forum non conveniens in the context of ATCA actions in Wiwa v. Royal Dutch Petroleum, 226 F.3d 88 (2d Cir. 2000). The plaintiffs in Wiwa sued defendants Royal Dutch Petroleum Company and Shell Transport and Trading Co., incorporated in the Netherlands and the United Kingdom respectively. Id. at 92. The plaintiffs alleged that Royal Dutch and Shell directed the Nigerian Government to kill leaders of groups opposed to the companies’ environmentally harmful oil exploration activities in Nigeria. Id.

The defendants argued that the United Kingdom would be a more suitable forum for the plaintiffs’ case. Id. at 100. The Second Circuit held that the defendants were not entitled to a dismissal based on forum non conveniens because U.S. residents are entitled to greater deference in their choice of a U.S. forum than that accorded to non-residents. Id. at 101. Some of the plaintiffs in Wiwa were U.S. residents. Id. at 103. The court also accepted the plaintiffs’ argument that the ATCA and the TVPA reflect “a United States policy interest in providing a forum for the adjudication of international human rights abuses, and that this policy interest should have a role in� deciding forum non conveniens issues. Id. The court stressed that the two statutes communicate “a policy that such suits should not be facilely dismissed on the assumption that the ostensibly foreign controversy is not our business. The TVPA in our view expresses a policy favoring our courts’ exercise of the jurisdiction conferred by the ATCA . . . .� Id. at 106.

A defendant moving for dismissal for forum non conveniens must show that an adequate alternative forum for adjudication exists. The safety of the plaintiffs and bias of the proposed foreign court are valid considerations when determining whether an alternative forum is in fact adequate. In Doe v. Exxon Mobile Corp., the court denied the defendant’s motion for dismissal because the plaintiffs, who alleged that Exxon had participated in human rights abuses in Indonesia, contended that litigating their claims in Indonesia would pose a serious risk to their safety, and that Indonesian courts would be biased. Doe v. Exxon Mobile Corp., 393 F. Supp. 2d 20, 29 (D.D.C. 2005). Sometimes an alternative forum may not be adequate because a similar claim would be barred by the statute of limitations in the alternative forum. In Agunda v. Texico, Inc., 303 F.3d 470 (2d Cir. 2002), the court affirmed the dismissal of an ATS complaint against a U.S. corporation for pollution in Ecuador and Peru on the ground of forum non conveniens on condition that the defendant waive a statute of limitations defense.