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Is the Alien Tort Claims Act a powerful human rights tool?

Anthony J. Sebok, FindLaw Columnist
Special to CNN.com


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(FindLaw) -- A little less than two weeks ago, in a unanimous decision, the Supreme Court resolved the case of Sosa v. Alvarez-Machain.

The case required the court to interpret both the Federal Torts Claim Act (FTCA) and the Alien Tort Statute, better known as the Alien Tort Claims Act (ATCA).

Both human rights groups and multinational corporations eagerly awaited the decision. The Justice Department had urged the court to restrict, if not completely gut, the scope of the ATCA -- a reading that would have greatly benefited multinationals. In contrast, human rights groups had urged the court to read the statute broadly, to vindicate the rights to noncitizens to sue for human rights violations in U.S. federal courts.

The court's decision seemed to rebuke the government. Accordingly, the media generally portrayed the decision as a victory for the human rights community. But in fact, as I will argue in this column, the court's opinion in Sosa cannot be easily categorized as a victory for anyone.

That is because the court, in deciding Sosa, avoided many of the hard questions that have made the ATCA so controversial in the past 10 years. It thus left open the question of whether the ATCA will be as powerful a weapon as human rights activists hope -- or as weak a weapon as multinationals hope.

The facts of the Sosa case

The Sosa case arose from an incident that took place in 1985 in Mexico. There, members of a Mexican drug cartel tortured and murdered an American DEA agent. American prosecutors believed that a Mexican doctor, Humberto Alvarez-Machain, kept the agent alive in order to either to get more information, or prolong his agony.

Alvarez was indicted in absentia by a Los Angeles grand jury, but the Justice Department could not get him extradited from Mexico. The DEA, therefore, hired a man named Sosa, as well as other Mexicans, to kidnap Alvarez and forcibly brought him onto U.S. soil -- where he was arrested by U.S. officials.

At his criminal trial in Los Angeles, Alvarez was acquitted. Once back in Mexico, Alvarez filed a civil claim in U.S. federal court against the United States under the FTCA -- which was dismissed.

Alvarez also filed additional civil claims in U.S. federal court against the Mexican nationals who had kidnapped him, including a man named Jose Francisco Sosa, under the ATCA. All the claims except the one against Sosa were dismissed.

After a trial on Alvarez's ATCA claim against Sosa, a jury in Los Angeles awarded Alvarez $25,000 in damages for emotional distress.

The Alien Tort Claims Act

The ATCA has been part of American law since 1789. It grants the federal district courts "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."

Until 1980, the ATCA was very rarely used. But that year, in the decision of the U.S. Court of Appeals for the Second Circuit in Filartiga v. Pena-Irala, and in other decisions that followed, the ATCA was interpreted in a more expansive way.

Since 1980, the ATCA has been held to apply to human rights violations by agents of foreign nations occurring outside the United States. It has also been held to apply to violations of certain core principles of human rights -- principles that are considered part of customary international law -- by private individuals and corporations.

Sosa's Position: The ATCA did not authorize any suits

Sosa -- joined by the Bush administration as well as groups such as the Chamber of Commerce of the United States of America and the American Petroleum Institute -- took the position that the passage of the ATCA in 1789 did not authorize anyone to sue in federal court, since it granted jurisdiction without saying jurisdiction over what.

In other words, despite 200 years of precedent to the contrary, Sosa, the Justice Department and corporate America were arguing that, until Congress passed additional legislation, the ATCA was an empty gesture.

The position urged by Bush administration was implausible on its face. And indeed, the Court's unanimous opinion, in Section III, rejected the argument that, because the ATCA was jurisdictional, it did not create a statutory cause of action.

In that Section, the Court made very clear that the ATCA is and was no dead letter, for its "jurisdictional grant is best read as having been enacted on the understanding that the common law would provide a cause of action." ("Common law" is the evolving, court-made law consisting of a body of judicial precedents; it is in contrast to court interpretation of legislature-made law such as statutes, or executive agency-made law such as regulations.)

The ATCA protects some human rights

Ironically, Sosa still won his case in the end. In his opinion for the Court, Justice Souter canvassed modern international law and concluded that arbitrary arrest could not be the basis for an ATCA claim, because -- while it might be actionable under American or Mexican law -- it was not a violation of any self-executing treaty signed by the United States, nor was it a violation of a binding norm of customary international human rights law, as the ATCA requires.

However, for many human rights activists -- including Paul Hoffman, one of Alvarez's lawyers -- Souter's opinion was a case of losing the battle but winning the war. For them, the key issue, in the long run, was not whether Alvarez could sue Sosa for arbitrary arrest -- or false imprisonment, or kidnapping, for that matter. It was whether the ATCA would be available in the future to victims of genocide, slave labor, and other clear violations of international human rights.

Human rights lawyers might disagree, even among themselves, over which wrongs count as violations of international human rights law. All agree, however, that some set of wrongs must be included in the ATCA.

And it seemed that the court agreed with them. But did it really? There are several reasons to think it didn't go anywhere near as far as human rights lawyers may believe.

A concurrence with the logic of a dissent

It's important, first, to look at the concurrence written by Justice Scalia, which was joined by Chief Justice Rehnquist and Justice Thomas. It reads more like a dissent.

It's true that these three joined with Souter and the rest of the court. And the fact that they did seems, at first glance, like a stinging rebuke to the Justice Department. But in fact, in his concurrence Scalia simply repackaged the Justice Department's argument.

Scalia claimed that even supposing the ATCA originally included international "common" law, it no longer does. Why? It is not because the ATCA was amended -- it wasn't. It is, according to Scalia, because in 1938, the Supreme Court issued its famous civil procedure decision in Erie R. Co. v. Tompkins.

Lawyers generally see this case as simple, yet fundamental. A federal court has what is called "diversity" jurisdiction over a case if the parties are from different states. Erie held that in a "diversity" case, the federal court should apply state substantive law. Thus, even today, in a diversity case, while the Federal Rules of Civil Procedure apply, the substantive law -- of tort, or contract, or what have you -- is state law.

Readers may ask: What in the world does this have to do with the ATCA? Good question -- but Scalia has an answer for it.

Scalia believes that Erie accomplished a legal transformation. Before Erie, federal courts applied what they thought of as a "federal common law" in diversity cases. After Erie, they legally could not; they could only apply state law. Thus, according to Scalia, Erie not only told federal courts what law to apply in diversity cases, it also abolished "federal common law" across the board. And since the ATCA, in turn, was based on federal common law, the norms borrowed from international law disappeared too. Or put another way, in enacting the ATCA, Congress had tried to incorporate something that did not exist: federal common law.

There are serious problems with Scalia's view. For one thing, why equate federal common law with the international common law the ATCA references? The ATCA mentions "the law of nations," not U.S. federal law. (It also mentions U.S. treaty obligations. But they are not common law -- they are statutory.) Just because the law of nations is referenced in a federal statute, does not make it identical to federal common law.

In any case, it's not really true that federal common law has been utterly abolished. Courts, in effect, go beyond statutory text into the realm of common -- that is, court-made -- in a whole host of federal cases, ranging from maritime law to constitutional torts.

Also, Erie seems inapplicable here given that ATCA suits enter federal courts under "federal question" jurisdiction, because the plaintiff is invoking a federal statute, and not under diversity jurisdiction. It's not clear that Erie really had anything to do with federal question cases at all.

Finally, if the worry is that Congress incorporated a vague set of rules, it's important to note that at the time the ATCA was enacted, some very specific rules were known to be part of the "law of nations" -- and those rules doubtless have modern counterparts.

But what's most interesting about Scalia's view is that he felt he could both express this view, and concur in Souter's opinion. Why? The reason is that Souter's opinion really does not say anything about how federal courts are supposed to interpret the international common law norms that are part of the ATCA.

It does tell us that one norm -- the right against arbitrary arrest -- is not part of the international common law included in the ATCA. But it does not really say why that is -- nor does it say which rights might be part of that common law.

So nothing in Souter's opinion will stop Scalia, in the next ATCA case before the Court, from trying to narrowly interpret the "law of nations" -- perhaps to be limited to rights akin to the anti-piracy rights familiar to the Framers.

More ATCA battles will doubtless follow now

In the end, then, the real battle over the ATCA has just begun. The truth is, the court has not told us very much about how it will interpret the ATCA.

It's true that Scalia's concurrence has a preemptive strike designed to warn certain judges (such as the U.S. 9th Circuit Court of Appeals) not to read the ATCA too expansively. The fact that he is scared is probably the reason so many human rights lawyers felt they won the Sosa case. But it's important to remember that their optimism is not based on what the Court itself said?it is based on what Justice Scalia was afraid the Court could say in the future.

Justice Souter's opinion was able to win eight other votes for a reason: It left all the hard questions for another day. Thus, the Sosa decision cannot be seen as a victory for the human rights community. It is, at best, an "operational pause" in a long, hard battle to come.

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Anthony J. Sebok, a FindLawexternal link columnist, is a professor of law at Brooklyn Law School, where he teaches torts, among other subjects.


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