Book p. 303- some of the claims against Marcos were filed under the ATCA- originally passed as part of the judiciary act of 1789. Rarely used for nearly 200 years, then in 1980’ 2nd circuit decided Filartiga under he ATCA- decision hailed by human rights advocates and a flury of HR litigation in US courts- this litigations sparked heated debats over the desirability of adjudicating international HR claims in US.
Tel Oren is an influential and thorough discussion of these issues.
“The district courts shall have original jx of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the US.” 28 U.S.C. §1350
Basis of jx for litigating human rights claims in US courts
“ATCA reaches the conduct of private parties provided that their conduct is undertaken under the color of state authority or violates a norm of international law that is recognized as extending to the conduct of private parties.”
Since Filartiga, ATCA is the jurisdictional basis of US courts to hear human rights claims
Is ATCA a pure jurisdictional statute?
ATCA had been a completely dormant statute
Theory of jx beyond diversity or federal question
Creates jx in fed dist court by an alien for a tort committed in violation of law of nations or US treaty
Available when both alien and defendant are foreign nationals
No nexus with US necessary
Filartiga v. Pena-Irala (1980), p. 304
Opponent of Paraguayan government, 17 year old son is tortured and killed by police chief in Paraguay
Attempt to prosecute in Paraguay fails
The lawyer on the case was arrested and threatened with death, resigned from case
Sister of decedent comes to US; while there, she hears that the police chief who had killed her brother was in NY
Sister begins this lawsuit against the police chief, causes service to be effected on him
Subject matter jx is based on ATCA
Personal jx is based on presence in NY
Issue: does district court have sub mat jx against Pena?
Pena’s argument: a nation’s treatment of its own citizens is not part of the law of nations
This comes from traditional view of int’l law: what happens domestically is not part of int’l law; based on sovereignty, exclusivity
Court’s opinion: talks about how int’l law has changed from the traditional notion, esp after WWII human rights violations
Court: CIL has advanced to the point where it is a violation of CIL for a police chief to torture and murder a political opponent
Another possible interpretation: interpretation of the statute when passed (1789) is frozen in time, and since what Pena did wouldn’t have been a violation of CIL then, it isn’t now
Atik: 2nd example, along with Paquete Habana, of US court doing int’l law
Court: torture is a violation of law of nations in 1980
Looks at language of UN Charter, GA declarations
No dissenting votes in Declaration Against Torture
Prohibition of torture in ICCPR
National practice
Constitutions of 55 nations prohibit torture, including US and Paraguay
Cannot find a state where torture is lawful
Just because there are breaches of a norm, doesn’t mean the norm doesn’t exist
Court: we do have jx to hear this case
Therefore, this opens up the prospect that human rights violations that occur on the other side of the world can now come to US, and if they get personal jx over D, they can have a hearing in US court; possibly get large jury awards including punitive damages
However, most of the ATCA cases, except for Marcos, haven’t resulted in very substantial recoveries since the D’s usually don’t have deep pockets
Court: not clear on whether all the work has been done for the case to go forward
If you read it as pure jx statute, then all ATCA does is vest jx in district court, so the finding of a violation of the law of nations is only a jurisdictional predicate, and there remains the requirement that the P have a cause of action
Alternative reading: ATCA is both a jx statute and a source of cause of action
This debate has lasted to the present
Tel-Oren case: Judge Bork says ATCA is only jx statute
If ATCA is purely jurisdictional, what are the potential causes of action?
Assault
Wrongful death
Whose law would you use? Would have to do conflict of law analysis. Could be…
Paraguayan law
Law of jx where court sits
Alien Tort Claims Act
2 interpretations
Pure jx statute
Both creates jx and also makes commission of act in violation of law of nations actionable in US court, serves as cause of action
Bork in Tel-Oren: ATCA is a jx statute, there must be a separate cause of action
Atik: favors the cause of action interpretation
Bork: using the cause of action interpretation would go against the doctrine of self-executing treaties
This is not settled law
As a practical matter, with respect to Filartiga and Tel-Oren, Congress solved the problem because it passed statute called Torture Victim Protection Act, which provides cause of action for victims of torture
Another cause of action passed for victims of terrorism
If using these causes of action, don’t really need ATCA
Recent cases: corporate defendants alleged to benefit from a foreign gov’s violation of int’l law
So question still remains to what extent CIL can be used as cause of action
