|Prof. Curtis Bradley said the ATS interferes with
September 15, 2004
Human Rights Claims Affirmed with Sosa, But Questions
The Supreme Court left the door open for prosecution of international
human rights violators in U.S. civil courts and reaffirmed prior lower
court decisions with its Sosa v. Alvarez-Machain decision,
according to a panel of legal experts who spoke at the Law School Sept.
10, but the future of such litigation remains unclear without legislation
dictating a framework to decide such cases, some panelists argued.
Others contended that judges are applying a narrow vision of the statute
and it is safer to leave it out of the hands of Congress, who might
be overly influenced by special interests in crafting legislation.
“The standards [articulated by the Supreme Court] are way too
vague to guide the potential litigants,” said law professor Curtis
Bradley, arguing for more detailed legislation to guide such claims.
If you want multi-national companies to be subject to greater regulation
for their conduct in other countries, he added, determining the proper
standards through piecemeal litigation against such companies “is
the absolutely worst way to do it.”
|Prof. David Martin moderated the panel.
In the past 25 years, aliens’ claims against human rights violators
have been decided under the Alien Tort Statute (ATS), a once-obscure
1789 law granting jurisdiction to U.S. federal courts over “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.” Once used
to combat piracy, the law was revived in Filartiga v. Pena-Irala,
heard by the Second Circuit Court of Appeals in 1980. The case concerned
the torture and murder of a man by a Paraguayan police official, later
spotted by the murdered man’s family on the streets of New York
City, explained panel moderator and law professor David
Martin. The court found in favor of the plaintiff, ruling that
ATS gave them jurisdiction in the case because the litigant violated
customary law. The U.S. State Department at the time agreed that the
law of nations supported norms against torture, Martin said. The case
opened the door for still more cases, and “several of those did
result in judgments for the plaintiffs,” he said. Since then,
complexities have cropped up, as questions arose over whether the statute
is just jurisdictional or whether it creates a private cause of action.
The stakes increased when victims of human rights violations filed
lawsuits against corporations working abroad, asserting they were responsible
for crimes in places like Burma, where California-based Unocal contracted
with the government to help build an oil pipeline; in clearing its
route, the government allegedly used forced labor and relocated citizens.
With corporations in the picture, “the prospect was open for
some major verdicts that would be recoverable,” Martin said.
In their last term, the Supreme Court took the Sosa case,
in which Mexican doctor Humberto Alvarez-Machain claimed he was illegally
arrested and detained by the United States and Mexican national Jose
Francisco Sosa. Accused of keeping a DEA agent alive while he was tortured
and eventually killed, Alvarez-Machain was later acquitted by a U.S.
judge for lack of evidence. He sued the U.S. government under the Federal
Tort Claims Act and Sosa under ATS. The Supreme Court came down in
the middle, rejecting jurisdiction over Alvarez-Machain’s claim,
but more accepting of other ATS tort claims. “Their language
is, I think it’s fair to say, Delphic,” Martin chuckled,
leaving the Court’s decision open to interpretation.
Bradley, currently on leave working as Counselor on International
Law in the Legal Adviser’s Office at the U.S. State Department,
said he liked some aspects of the decision. All nine justices agreed
the statute was just a jurisdictional provision, and he applauded their
discussion of the history of the statute.
“There as a lot of cautionary language in the majority opinion,” said
Bradley, who emphasized he was speaking in his own capacity at the
event. This may have indicated an attempt by the majority to “impose
some sort of a brake on the expansive developments.” For example,
the opinion acknowledges the meaning of the phrase “law of nations” has
changed dramatically since 1789 and could not have been anticipated
in its current incarnation by the Congress that passed the statute.
Bradley said he had some problems with the way the opinion made a
leap in logic in applying the statute to human rights cases today.
When Congress enacts a statute it “does not enact an entire jurisprudential
landscape,” Bradley said. The decision, he explained, is also
overly optimistic about whether the cautionary language will impose
restraint. The Supreme Court used the same standards for judgment as
the Ninth Circuit, but made opposite conclusions about the validity
of Alvarez-Machain's claim, Bradley pointed out.
Although the opinion devotes a number of pages to explaining why Congress
rather than courts should create causes of action, the majority could
not bring itself to leave it to Congress to legislate with respect
to human rights claims, Bradley said. He warned that with more than
600 federal court judges, each will have their own ideas about the
statute. “I’m skeptical that with just that very general
standard [provided by the Court], that it will really operate as a
restraint,” he said.
Allowing the ATS to be the vehicle to bring tort claims “has
the potential and in fact does interfere with the management of foreign
relations.” The lawsuit’s objective in ATS cases is to
obtain, from one of the branches of the federal government, official
condemnation or sanctions of foreign government actions, Bradley said,
and such steps “are core parts of the conduct of foreign relations.” Sometimes
the political branches try engaging abusive regimes rather than sanctioning
them to try to effect change. In some cases, cooperation in the war
on terror may play a role in how the United States handles such regimes.
The U.S. government often conditions sanction removal on whether the
country has improved its behavior. “The litigation is not consistent
with the general management of these issues by the political branches,” he
said. Foreign countries’ protests against ATS claims have increased
and the litigation threatens to undermine U.S. relationships with these
countries, he said.
Referring to a case against companies that did business with South
Africa’s apartheid regime, Bradley said the country had already
decided how to deal with apartheid—through a truth and reconciliation
process. It shouldn’t be up to U.S. courts to impose further
sanctions, he suggested.
All the litigation is based on a one-sentence statute that “lacks
any meaningful standards and limitations you would desire for this
sort of legislation.” The ATS doesn’t even define whether
there is a statute of limitations for such claims, he noted, or whether
it extends only to state actors. This creates a predictability problem
for corporations who need to know the risks of doing business abroad.
|Prof. Beth Stephens filed an amicus brief supporting
Rutgers law professor Beth Stephens, who filed an amicus brief in
support of Alvarez-Machain, responded to Bradley’s comments,
noting that she agreed that the Supreme Court was wise to describe
the statute as narrow. “I don’t think one could plausibly
make the argument that this particular statute applied today should
be applied in a broad way.” She said the lower courts have in
fact applied the statute narrowly already. Broader claims have all
lost or been dismissed. She predicted the Supreme Court decision will
not change how cases are decided because their opinion is in step with
previous lower court decisions. “The standard to be applied seems
to be the standard that has been applied in the past.”
Responding to Bradley’s argument that corporations need better
guidance to avoid ATS claims, Stephens said complicity with slavery,
torture and genocide is not really questionable—corporations
know it’s wrong. When oil company Talisman contracted with the
Sudanese government to clear areas for oil exploration, the government
cleared out the people too, and the corporation knew the government
would do that through egregious human rights violations, she said.
“I don’t have any problem with saying the corporation
should know it shouldn’t be doing that,” Stephens said.
The same foreknowledge came to Unocal, whose memos show the corporation
knew it was likely the Burmese government would commit human rights
violations. Stephens argued that corporations defend against a lot
of litigation, and “these standards as applied by the courts
have been quite predictable.”
There was some suggestion during Sosa’s oral arguments
that because other government branches hadn’t proposed an amendment
to ATS to narrow it, the Court was within its reach to determine such
On the question of whether ATS cases affect foreign policy, Stephens
said the problem of individual plaintiffs impacting policy is broader
than human rights cases alone. Asylum cases (finding that a person
will be tortured if sent home), antitrust cases, and cases where citizens
get in trouble abroad all give the State Department headaches. “It’s
a cliché to say it, but that’s the unruly part of a democracy.”
She noted that the Sosa opinion said courts should show deference
when the executive branch raises case-specific concerns.
|Prof. John Harrison
Law professor John
Harrison outlined one potential move ATS plaintiffs could make:
they could bring cases in state courts, relying not on federal law
that incorporates international human rights law, or on state law
that does so, but directly on international human rights law. State
courts are not subject to the jurisdictional limits the Constitution
imposes on federal courts; they can hear cases in which all parties
are aliens and there is no question of federal law, for example.
If state courts conclude that international human rights law is sufficiently
determinate and widely applied to count as law, they can decide cases
under it, Harrison said. Congress would likely intervene if state
courts began hearing such cases, and “we would get what we
need in related areas, which is an act of Congress.” Congressional
action is desirable for several issues the courts have grappled with,
such as the executive’s authority to detain alleged enemy combatants,
Harrison said. Until Congress acts, suits in state court—whether
or not a good idea—would rest on a legally sound basis, he
|Prof. Ralph Steinhardt
George Washington University law professor Ralph Steinhardt, who served
on Alvarez-Machain's legal team, said the Supreme Court’s Sosa decision
reaffirms the body of doctrine already in place. He recalled a frivolous
case where a lottery winner who wanted her money in a lump sum sued
under ATS, claiming denial of her money violated international law—“we
need that case to disappear and lo and behold it does.” He said
the South Africa cases Bradley referenced are likely to be dismissed
as well. The Unocal case, however, has strong standing under two frameworks:
Article 3 of the Geneva Convention, which the United States is party
to, refers to war crimes that can be committed by private actors, and
the Genocide Convention also says genocide can be committed by private
actors; secondly, the corporation and the Burmese government were so
sufficiently enmeshed that the corporation can be found to be aiding
Antidiscrimination statutes of the United States hold that when a
private actor performs a public function, such as a corporation running
a prison, the state can delegate obligations, Steinhardt said. “There’s
no part of law that says states can delegate obligations to private
actors, then insulate those actors from private actions.”
The Sosa decision was also consistent with a Supreme Court
decision during the Spanish-American War in a case where the U.S. military
seized Cuban fishing boats. The Supreme Court held that the fishing
vessels were immune from seizure, thus showing that “international
law is part of our law.”
In a question and answer session, Stephens said she thought it may
be best to keep legislation codifying ATS out of Congress as long as
possible because “they’ll only mess it up.” If the
Supreme Court had ruled against Filartiga, a movement would
have formed to draft legislation, she added.
Steinhardt said that with the exception of Guatemala , no state has
objected to the universal jurisdiction created by ATS because they
don’t want to put their arm around a torturer. Bradley injected
that the United States has received “dozens of protests in the
past few years” about the use of ATS.
When asked what he would think if the facts bear out that Unocal
was complicit in Burma’s use of forced labor, Bradley responded
that he was sympathetic to the desire for redress, but objected to
the case being decided without a more detailed legal framework. He
proposed the issue be addressed in legislation or through a multilateral
fashion with other countries. Stephens responded that some filings
by the executive branch have egregiously been in service of corporations.
If she thought they were equal partners, “it would be an entirely
different landscape” when it came to legislation.
Steinhardt said corporate responsibility is not “imposed by
plaintiff’s bar out of control.
“The current corporate class understands there is a certain
value in showing its commitment to human rights standards,” he
concluded, noting that the market alters corporate culture—not
The panel was sponsored by the Human
Rights Program, American Constitution Society, the Federalist
Society, the J.B. Moore Society of International Law, and the Latin
American Law Organization.
Reported by M. Wood