The Alien Tort Statute (ATS) enables
aliens to bring tort claims in the United States District Court. Specifically, the statute states, “The
district courts shall have original jurisdiction or 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.” 28 U.S.C. s.
1350. The statute was passed not long
after the founding of the United States as part of the Judiciary Act of 1789,
however that has been little litigation over the past 200 years. More recently, cases have emerged and courts
have sought to define the statute with common law. The first part of this question asks whether
or not the courts who have presided over those cases, have interpreted the ATS
too narrowly, about right, or too broadly.
In 1980, the first of the more
recent cases to examine the statute was Filartiga
v. Pena-Irala (Filartiga). In that
case, the Filartiga’s were Paraguayan Nationals who were suing Pena, a
Paraguayan Police Chief, for the torture and murder of their family
member. For the court to have
jurisdiction, the threshold question of whether the Pena’s conduct violated the
law of nations. The court held; “Having
examined the sources from which customary international law is derived…we
conclude that official torture is now prohibited by the law of nations.”
The court appeared to interpret the
ATS in Filartiga about right. It is
essential that the global community act with the upmost diligence in
prohibiting torture and extrajudicial killings.
This case showed how the Filartiga’s home country, Paraguay, provided no
recourse whatsoever for their torture claim.
The government even arrested and disbarred the Filartiga’s
attorney. Citizens in countries such as
these should be able to seek damages from such abhorring conduct, but receive
none from such autocratic governments.
Be that as it may, the US court system does have an interest in
maintaining a sustainable caseload, as well as saving face with the sovereignty
of other global governments. However,
this case demonstrated a particularly heinous offense and the Filartiga’s
affidavit provided a comprehensive list of sources showing a violation of
customary international law, and evidence that the law was actually violated.
In 2014, the ATS was heard before
the Supreme Court of the Unites States in Sosa
v. Alvarez-Machain (Sosa). In Sosa,
the US Government hired a Mexican National, Sosa, to kidnap Alvarez and bring
him to the US for murder. Alvarez was
brought to the US via the kidnapping, however the charges were dismissed and he
later sued Sosa for false imprisonment.
Sosa alleged a violation of the ATS and argued that the statute, “was
not simply intended as a jurisdictional grant, but as a new cause of action for
torts in violation of international law.” (p.299-300). The Supreme Court
disagreed and held, “the federal courts should not recognize private claims
under federal common law for violations of any international law norm with less
definite content and acceptance amount civilized nations than the historical
paradigms familiar when s.1350 was enacted.” (p.310).
The Supreme Court interpreted the
ATS in Sosa was strict, but necessary.
For example, although experiences may vary the tort of false
imprisonment pales in comparison to the act of torture and murder. In Sosa, Alvarez was held for one day against
his will, then turned over to answer for the serious crime of murder. One would think monetary damages would be
nominal, and indeed less than those sought to be recovered from torture and
wrongful death. However, the court did
not evaluate damages, qualified the types of claims the ATS would cover. In so doing Justice Souter referenced the Tel-Oren case “for the purposes of civil
liability, the torturer has become – like the pirate and slave trader before
him… an enemy of all mankind.” (p.310) The court seems to place a severity
qualification on claims brought before the court by aliens. Therefore, Alvarez’s claim was examined
against the current state of international law, which included a judgment of
the consequences of making that cause available to future litigants. (p.310)
This interpretation of the ATS limited the types of torts which could be
herd, and related the examination back to the original statute.
In Kiobel v. Royal Dutch Petroleum, the ATS was again litigated. In that case, citizens of Nigeria sued oil
corporations for violations of international law for aiding in the murder,
torture, and property destruction of Nigerian Nationals. The court held that the US did not have
jurisdiction because the claimed tort was committed abroad and did not involve
any American interests.
The interpretation of the ATS in
Kiobel is also strict. This case
concerned the same international norm, torture, as was discussed in Sosa, however
the court applied a jurisdictional limit to the type of claims that may be
herd. This interpretation was necessary,
but seems to take the teeth out of the statute.
For example, Justice Breyer writes in the concurring opinion that he
feels the tort must occur on American soil, or the defendant is an American
national, or the defendant’s conduct substantially and adversely affects an
important national interest.
(p.326) This seems to exclude
many claims that would typically be brought before the court.
As a whole, the courts have
interpreted that statute just right.
There needs to be a balancing of reducing the friction with other
governments, unfortunately this largely comes by limiting the types of claims
which may be brought before the court.
Conversely, the United States has an interest in ensuring the country
does not become a safe-haven for those who commit such atrocities. In that
light, Kiobel does seem to be a set back.
There is also a need to balance the number of cases brought before the
court to prevent overburdening of the courts and therefore some restraining
interpretations are necessary. As such,
the courts have interpreted the ATS just right.
Considering why the ATS was written, it should be kept to a
jurisdictional statute and strictly interpreted. This would limit controversies with other
governments and prevent the number of claims brought before the court. Holding other claims under the ATS equal, the
breadth of the ATS was taken back after the Kiobel decision. For example, in Sosa the prohibition of
torture was determined to be an international norm. However in Kiobel, the ATS will not recognize
extra-territorial jurisdiction. So, with
regards to foreign nationals claims for torture under the ATS, their claim
would typically have to arise within the territory of the US. This would appear to represent a very small
demographic of litigants. As such, there
will likely be less claims brought under the ATS in the future.
The first issue is whether Chalky
remaining as part of Moscalia is consistent with the international law of
self-determination. Article 2 of the
United Nations Charter recognizes the principle of equal rights and
self-determination of peoples. The case Reference Re Secession of Quebec provides
the framework from when self-determination may arise. Firstly, there is a threshold inquiry of
whether the group seeking self-determination are a “people”. There is not precise definition of a people,
but typically include their language and culture. Therefore, the people of Chalky appear
satisfy the first element, because they do not share the same culture and
language as the people from Minskia. The
next element in the framework of self-determination is the scope of the
right. This right is only available to
those in situations of “former colonies, where those people are oppressed, as
in under foreign military occupation, or where a definable group is denied
meaningful access to government to pursue their political, economic, social and
cultural development.” (p.608) In this
sense, the facts indicate that Chalky should argue they have been denied a
meaningful part in government and have shown their wish to succeed from Minskia
by an 85% vote.
The second issue relates to the
General Assembly asking the International Court of Justice for an advisory
opinion. There are some reasons why the
court may refuse to issue an opinion. In
the advisory opinion issued in the Kosovo case, the General Assembly referred a
question of whether Kosovo’s declaration of independence was in accordance with
international law. The ICJ held that
international law does not prohibit unilateral declarations of independence,
therefore Kosovo’s declaration was not in violation. The problem that the General Assembly has
with rendering such opinions is that amount of influence it has over other
countries. For example, the number of
states that recognized Kosovo doubled after the opinion was issued. A question that should be submitted to the
ICJ is whether Moscalia engaged in threatening Minskia with force. In the Kosovo case, the court cites that the
Security Council condemned several other declarations of independence because
they were “all connected with the use of force or other egregious violations of
norms of general international law, in particular those of a perementpory
character.” (p.616) The riots,
propaganda, and military presence all seem to raise this issue. However, this is all relative to the fact
that the opinion is not binding and Moscalia and Chalky are under no obligation
to recognize the courts opinion.
The third issue involves
international criminal law. The
International Criminal Court has jurisdiction over genocide, crimes against
humanity, and the crime of aggression.
Therefore, the required substance matter is satisfied because Moscalian
military personnel are committing war-time atrocities. The Rome statute is the
governing treaty for the ICC and those who signed the treaty have compulsory
jurisdiction. In this case Moscalia is
not member of the court or treaty, thus there is no compulsory jurisdiction
over the country. However, the ICC may achieve jurisdiction by a referral from
the Security Counsel, or the state parties may refer cases them. Therefore, if the matter is submitted to the
ICC by the Security Counsel or a state party, the ICC would a basis to proceed
against Moscalia and have the power to investigate the criminal activity.
The fourth issue is…
The fifth issue is whether or not
Chalky residents could bring claims against Moscalia under the ATS in federal
court in the US. This question involves
a similar fact pattern to the case previous discussed, Kiobel. Similar to that case, the tort has happened
outside the territorial boundaries of the United States, and therefore the
court is unlikely to confer jurisdiction.
However, there court may take into consideration that the defendant is a
person, unlike Kiobel where the defendant was a corporation.
In Foster & Elam v. Nelson Justice Marshall wrote the opinion for
a dispute over a tract of land. The
controversy was whether or not the “treaty of amity” which contained only the
provision “shall be ratified and confirmed” was effective by its own terms, or
required subsequent litigation to take effect.
Justice Marshall wrote when a treaty acts without the aid of a
legislative provision, the Constitution declares it to be the law of the land. However, when the terms appear to stipulate a
contract, the legislature must execute the provisions of the agreement before
it can become the law of the land.
(p.219) In summary, when a treaty
contains only a pledge to enact further legislation, the treaty does not take
effect until such action is taken.
In Medellin v. Texas Justice
Roberts wrote the opinion for the court.
In that case, a Mexican National attempted to use an ICJ ruling to
submit a writ of habeas corpus because he was not informed of his Vienna
Convention rights. The court held that
international commitments, by themselves, may not function as binding federal
law. Specifically, the phrase “undertakes
to comply”, was not an acknowledgement that an ICJ decision will have immediate
legal effect in the courts of UN members, but rather a commitment to take future
action through their political branches to comply with the decisions. (p.261)
Therefore, the optional protocol only granted jurisdiction and did not
commit the US to comply with ICJ judgments.
Justice Marshall views non-self
executing treaties as contracts that can only become binding upon performance,
or in this case subsequent legislation. This
will occur unless there is language which specifically contemplates an
additional execution by the legislature.
As Justice Marshall said, “this will then address itself to the
political, and not the judicial department.”
His viewpoint supports a presumption of self-executing treaties. (p.270)
However, Justice Roberts’ view was for a treaty to have domestic effect
joint action by the Executive and the Legislature are necessary. Justice Roberts does not support a
presumption against self-executing treaties.
For example, the text of the treaty in Medellin demonstrated it was
non-self executing, which meant that subsequent litigation was necessary for it
to take effect. Therefore, absent this
litigation, the presumption was that the treaty was not self-executing.
In Fuji v. California, a Japanese
citizen challenged the seizure of land which was escheated to the state. He based his claim on the California law
being superseded by the UN Charter, which sought to promote human rights
without distinction to race. This issue
of the case then turned to whether the treaty provisions were self-executing. The court held that the provisions clearly
contemplated future legislative action.
Therefore, although the provisions were ambiguous, there was presumption
the treaty was non-self-executing. As
this was decided long before Medellin, this presumption has kept in line with
Justice Roberts’ viewpoint.