CHAPTER 19 ............................................................................................................................................. 2
The Development of Human Rights and Private Sector Enforcement (The United States Experience) ..... 2
I. Human Rights and the Domestic Legal Political Environment ......................................................... 2
II. Apartheid as a Tort in Violation of the Law of Nations .................................................................. 19
A. Violation of the Rules of Customary International Law for the Tort of Apartheid Gives Rise to
Claims for the Appropriate Civil Action in the Federal Courts under the Alien Tort Statute. ........ 19
B. Apartheid is defined with sufficient specificity to establish a civil action for tort under the
ATS. 20
C. Apartheid is wrongful and correspondingly unlawful in customary international law ........... 22
D. Apartheid is an International Tort under the ATS. .................................................................. 25
E. United States federal courts are a proper forum to adjudicate a civil action for the tort of
apartheid in international law ........................................................................................................ 26
F. Conclusion of Amicus Argument ............................................................................................. 27
G. Second Amicus Argument: The Language of the Ats Calls for a Threshold Determination of
What a Federal Common Law Tort Is in Violation of the Law of Nations. ..................................... 28
H. The Language of The Ats Calls For A Threshold Determination Of What A Federal Common
Law Tort Is In Violation of the Law of Nations ............................................................................... 29
I. The Language of the ATS Supports Findings of Subject Matter Jurisdiction and a Civil Action,
Regardless of Whether a Textualist or a Non-Textualist Construction and Interpretation is
Employed. ...................................................................................................................................... 30
J. It is Within the Competence of the Federal Judiciary to Determine What in Federal Common
Law Adjudication is a Tort and it is Similarly Within the Competence of the Judiciary to Determine
the Appropriate Pleading Form in Which the Right Might be Vindicated ..................................... 32
III. The Historical Underpinnings of the ATS Yields Clear Guidance Regarding the Scope of Its Specific
Prescription and Application In Particular Cases ................................................................................... 33
A. General Remarks on the Relationship Between Substance and Procedure ........................... 35
B. Substance and Procedure and the Application of the ATS ..................................................... 36
C. Conclusion on the Argument Relating to Strict Pleadings ...................................................... 37
D. Have the Courts Retreated From the Promise of Human Rights Litigation in Section 1350 of
ATS? ................................................................................................................................................ 38
CHAPTER 19
The Development of Human Rights and Private
Sector Enforcement (The United States
Experience)
Chapter 19 addresses the importance of international law to domestic and
regional bodies. As an example, the chapter illustrates the role of human rights in
civil litigation in the domestic courts of the United States. We provide a relevant
summary of the law relating to claims under the Alien Tort Statute and provide an
insider’s view with appropriate documentation of the extensive litigation in the New
York courts, In re: Apartheid.1
In 1980, the Second Circuit Court of Appeals delivered a landmark judgment
on the private sector enforcement of human rights.2 The theory of liability in
Filártiga v. Peña-Irala was that the violation of a particular human right is an
international wrong, and has a tortious character.3 Assuming proper jurisdiction, a
plaintiff could thus sue the defendant on a human rights tort in United States
federal court. The theory of the case was based on a 1792 Statute: the Alien Tort
Statute (“ATS”).4 The ATS states that a U.S. federal court provides jurisdiction for
an alien to sue for a tort in violation of the law of nations.5 Up until 1980, courts
had little experience interpreting the ATS to include the broader “law of nations.”
Since 1980, however, some circuit courts invoked the ATS as providing a federal
tort for the violation of a human right.6 Moreover, the Supreme Court has affirmed
the decision of the lower federal courts in providing a civil tortious remedy for the
violation of human rights norms.7
I.
HUMAN RIGHTS AND THE DOMESTIC LEGAL POLITICAL ENVIRONMENT
In re S. Afr. Apartheid Litig., 346 F. Supp. 2d 538 (S.D.N.Y. 2004) – In this case the South African government
stated that these types of cases interfere with the policy of the Truth and Reconciliation Commission, which
“‘deliberately avoided a “victor’s justice” approach to the crimes of apartheid and chose instead one based on
confession and absolution, informed by the principles of reconciliation, reconstruction, reparation and goodwill.’”
Sosa, 542 U.S. at 733 (quoting Declaration of Penuell Mpapa Maduna, Minister of Justice and Constitutional
Development, Republic of South Africa (July 11, 2003), reprinted in Brief of the Government of Commonwealth
of Australia et al. as Amici Curiae in Support of Petitioner app. b, at 7a). Given the position of the South African
government, there is a strong argument that, in some situations, federal courts should defer to the Executive
Branch’s judgment on the matter.
2 Filártiga v. Peña-Irala, 630 F.2d 876 (2d Cir. 1980)
1
3
Id.
4
28 U.S.C. § 1350 (2010).
Id.
See Blum, Jeffrey M. and Steinhardt, Ralph G., Federal Jurisdiction over International Human Rights Claims:
The Alien Tort Claims Act after Filartiga v. Pena-Irala, 22 Harv. Int'l. L. J. 53 (1981)
7 Id.
5
6
One should understand the developments in political and legal culture
forming a background to the use of a nation-state’s domestic courts to provide
remedies for aliens suffering from human rights violations. The first and most
important issue is the general question of what role domestic courts should have in
applying international law. Historically, there were no judicial fora of an
international character by which legal disputes could be settled through judicial
proceedings applying international law. Thus, with the 20th Century development
of human rights laws, regional courts specialized in human rights were created.8
These courts were not created without reservations. Judicial conservates worried
that the prescription, application, and enforcement of human rights standards are
not precise enough for judicial settlement. There also remains a lingering fear that
national courts given effect to such norms and standards would be trenching upon
the limits of law, and in fact transforming the courts into institutions of
discretionary political preference. However, human rights jurisprudence before the
Inter-American Court of Human Rights, as well as the European Court of Human
Rights, has demonstrated that judicial settlement of human rights issues has been
eminently juridical and principled, and indeed recorded in a impressive
jurisprudence of case law and precedent. Thus, in the post-World War II world,
there was a gradual acceptance that human rights norms are amenable to the legal
culture traditions of the practice of law.
The history of the United States Supreme Court has reflected a willingness
on its part to carve out a role for itself in the making and application of
international law. In turn, all U.S. federal courts have historically been active
agents in the development of international law through legal processes. These
developments, of course, should also be seen against the backdrop of U.S. foreign
relations. The role of the courts in cultivating a sophisticated legal respect for
human rights had to be balanced against the nation’s evolving foreign policy
mandates to position itself within the global forces that enhance or threaten U.S.
interests. These matters became critical as the U.S. observed the outbreak of the
First World War. The U.S. long insisted that it was a neutral party and that its
neutrality could be challenged or compromised by the participants in the war.9
At the back of neutrality was the notion that the United States was
exceptional and that its creation rejected strong nationalist sentiment in Europe; A
sentiment that expressed itself through intense competition, extensive imperialist
ambitions, and a willingness to resort to war as an instrument of national interest.
Indeed, the United States had been created in a revolt against colonial exploitation
and imperialism. These perspectives of American exceptionalism expressed
themselves in two very different outlooks. One was to altogether stay out of the
growing mess in Europe. This perspective believedthe Europeans were destroying
themselves and the U.S. would do likewise by participating. A second outlook,
See Winston Nagan and Aitza Haddad, International Courts, Wiley-Blackwell Encyclopedia of Globalization
(February 29, 2012)
9 See generally Ross Gregory, The origins of American intervention in the First World War, Norton (1971)
8
3
reflected in Woodrow Wilson’s idealism, was that the European conflict could
generate the conditions for U.S. to significantly influence the shape of a future
world order. These principles are founded on a more idealistic position, and
defended as exceptionally American. The first outlook would endure for a long
period and have a significant impact on the U.S. position regarding international
human rights. The second outlook gravitated to the right wing of the political
spectrum and was reflected in an aggressively promoted agenda of isolationism.
Wilsonian idealism triggered the peace treaty in 1919,10 and although making
important compromises to the demands of the French and the British, nonetheless
put into the peace process the creation of a League of Nations,11 as well as the
notion that all peoples had a right to self-determination.12 The isolationists,
however, had a great victory when Woodrow Wilson returned to the United States
and had the treaty rejected by the senate.13 One of the leading isolationists was
Wilson’s arch nemesis, Senator Henry Cabot Lodge of Massachusetts.14 The
isolationists were helped when at a crucial time in the treaty-ratifying campaign
Woodrow Wilson suffered a severe stroke and was incapable of advocating for
ratification.15 Isolationism therefore reigned triumphant and the United States
turned to its internal political issues.16
With the escaping and the Great Depression becoming the focus of American
politics, the nation looked even more inward as it crafted policies towards this end.17
Meanwhile, in Asia, Japanese imperialism embolded its efforts to secure territorial
expansion.18 Also, in Europe, Adolf Hitler rose to power in Germany and the
The Treaties of Peace 1919-1923, New York: Carnegie Endowment for International Peace, 1924, is the source
of the complete text of the 1919 Treaty; See also Treaty of Versailles, Encyclopædia Britannica, Encyclopædia
Britannica Online, Encyclopædia Britannica Inc., 2012 (accesed on 12 Apr. 2012)
11 See generally Northedge, FS., The League of Nations: Its Life and Times, 1920–1946. New York: Holmes &
Meier (1986) – It is a concise story about the creation of the League of Nations. Professor Northedge focuses on
the reasons for the failure of the of the League as a system of collective security; See also Corbett, P. E., What is
the League of Nations, 5 Brit. Y.B. Int'l L. 119 (1924)
12 Antonio Cassese, Self-determination of Peoples; A legal Reappraisal , A Grotius Publication; Cambridge
University Press (1997); See also Brilmayer, Lea, Secession and Self-Determination: A Territorial
Interpretation, 16 Yale J. Int'l L. 177 (1991)
13 Aug 19, 1919: President Wilson appears before the Senate Foreign Relations Committee , This Day in History,
History.com (accessed April 12, 2012); See also American History Series: Remembering the Peace Talks That
Followed the Original Armistice Day, Voice of America, VOANews.com (November 10, 2010); See generally
Lloyd E. Ambrosius, Woodrow Wilson and the American Diplomatic Tradition: The Treaty Fight in Perspective,
Cambridge University Press (January 26, 1990)
14 Id.; See generally John Milton Cooper, Breaking the Heart of the World: Woodrow Wilson and the Fight for
the League of Nations, Cambridge University Press (September 24, 2001); See also David Mervin, Henry Cabot
Lodge and the League of Nations, Journal of American Studies, 4 , pp 201-214 (1971)
10
Id.
Id.
17 See generally Amity Shlaes, The Forgotten Man: A New History of the Great Depression, HarperCollins (May
27, 2008); See generally Peter Temin, Lessons from the Great Depression, MIT Press (October 8, 1991); See also
John A. Garraty, The New Deal, National Socialism, and the Great Depression, The American Historical
15
16
Review , Vol. 78, No. 4, pp. 907-944 (October, 1973)
18 Id.; See generally Sugihara, Kaoru, Japanese imperialism in global resource history. Working Papers of the
Global Economic History Network (GEHN), 07/04. Department of Economic History, London School of
Economics and Political Science, London, UK. (2004)
4
growing militarization of the Nazis would threaten neighboring countries, and the
U.S. and other nations’ interests worldwide.19 In between these two growing world
powers, Joseph Stalin consolidated his totalitarian regime in Russia.20 It should be
important to note that when Hitler supported Franco in the Spanish Civil War, the
neutrality of the U.S. was not necessarily a policy favored by all.21 Thus, private
brigades were created and went to Spain to fight in defense of the Spanish republic.
One such example was the Abraham Lincoln brigade.22 When World War II broke
out in 1939, isolationism was the favored position by the American public, and the
United States officially stayed out of this latest European entanglement.23 President
Roosevelt, however, had a keen sense on the strategic implications the war had
American security, and could note support an absolute isolationist policy whereby
the U.S. had little control over the conflict’s outcome. 24 Thus, he worked on a
number of mechanisms to support Britain and her allies while still maintaining the
fig leaf of neutrality.25 The debate over U.S. neutrality in World War II ended when
the Japanese attacked Pearl Harbor on December 7, 1941.26 This attack sidelined
the leading advocates of isolationism, as their positions now appeared to give
comfort to America’s enemies.
With America at war, Roosevelt developed a framework for the Allies’war
aims, often known now as Atlantic charter.27 The charter contained four freedoms:
freedom of speech and expression, freedom of conscience and belief, freedom from
fear, and freedom from want.28 These principles formed the foundational values for
the creation of the United Nations and the UN charter.29 It should be recognized
that these principles were also Roosevelt’s principles in which he based his New
Deal policies.30 Following the war, and after Roosevelt’s death, the victorious Allies
created the UN with the U.S. being a critical player it’s founding and in its
Id.; See generally Hans Raupach, The Impact of the Great Depression on Eastern Europe, Journal of
Contemporary History , Vol. 4, No. 4, The Great Depression, pp. 75-86 (October, 1969)
20 Id.; See generally Ward, Chris, Stalin’s Russia, Edward Arnold (1993)
21 See generally Robert H. Whealey, Hitler And Spain: The Nazi Role In The Spanish Civil War, 1936-1939,
University Press of Kentucky (January 3, 2005)
19
Id.
See generally Alan John Percivale Taylor, Origin Of The Second World War, Simon and Schuster, (April 1,
1996); See also Winston Churchill, The Second World War, Golden Press (1960)
24 Id.
25 Id.; See generally Warren F. Kimball, Forged in War: Roosevelt, Churchill, And The Second World War ,
22
23
HarperCollins (May 6, 1998)
26 Id.; See generally James Rusbridger and Eric Nave, Betrayal at Pearl Harbor:
how Churchill lured Roosevelt into World War II, Summit Books (1991)
27 Id.; See generally Douglas Brinkley, David Richard Facey-Crowther, The Atlantic Charter, Palgrave
Macmillan (Apr 15, 1994); See also The Atlantic Charter, signed by Franklin Roosevelt and Winston Churchill
on August 14, 1941, available at http://www.internet-esq.com/ussaugusta/atlantic1.htm
Id.
Id.; See also M. Glen Johnson, The Contributions of Eleanor and Franklin Roosevelt to the Development of
International Protection for Human Rights, Human Rights Quarterly , Vol. 9, No. 1, pp. 19-48 (February, 1987);
See generally Frank Robert Donovan, Mr. Roosevelt's four freedoms: the story behind the United Nations
Charter, Dodd, Mead (1966)
30 Id.; See generally Elizabeth Borgwardt, A New Deal For The World: America's Vision For Human Rights ,
28
29
Harvard University Press (2005)
5
functions.31 Central to the U.N.’s charter are concerns for world peace and security,
and human rights.32 It was widely acknowledged at the time, however, that human
rights should be clarified and possibly codified.33 For this purpose, President
Truman appointed Eleanor Roosevelt as a deleage to the U.N. General Assembly,
where she became chairperson of the committee charged with drafting a declaration
of human rights.34 It will be seen that the universal declaration reflects the new deal
values of the U.S. at that time.35 Certainly, civil and political rights wre
paramount.36 However, Roosevelt himself believed that the fundamental rights of
the U.S. were incomplete without the protections of economic human rights.37
Roosevelt in fact talked about the fact that necessitous men were not free.38 And
before the war, he speculated about a national bill of socio-economic rights.39
The U.N. adopted the United Nations Declaration of Human Rights (UDHR)
as a resolution of the general assembly.40 In general, resolutions of the general
assembly are not legally binding.41 To get the degree of global consensus for the
adoption of the UDHR meant that, in effect, it would have to be adopted as a nonlegally binding resolution.42 Still the UDHR was not without some political, moral,
Basic Facts - About the U.N., U.N. Publication, Sales No. E.04.I.7; The U.N. officially came into existence on
24 October 1945, when the Charter had been ratified by China, France, the Soviet Union, the United Kingdom,
the U.S. and a majority of other signatories. U.N. Day is celebrated on 24 October each year; See generally
Mark Mazower, No Enchanted Palace: The End of Empire and the Ideological Origins of the United Nations ,
Princeton University Press (October 21, 2009); See generally Stephen C. Schlesinger, Act Of Creation: The
31
Founding of the United Nations : A Story of Superpowers, Secret Agents, Wartime Allies and Enemies, and
Their Quest for a Peaceful World, Basic Books (December 14, 2004); See generally Robert C. Hilderbrand,
Dumbarton Oaks: The Origins of the United Nations and the Search for Postwar Security, UNC Press Books
(2001); See also Leland M. Goodrich, From League of Nations to United Nations, International Organization, 1 ,
pp 3-21 (1947)
32 Id.; See also See United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI, available at:
http://www.unhcr.org/refworld/docid/3ae6b3930.html; See also Fassbender, Bardo The United Nations Charter
As Constitution of the International Community, 36 Colum. J. Transnat'l L. 529 (1998); See also Leland M.
Goodrich., et al., Charter of the United Nations: Commentary and Documents, 290–309 (3d ed. 1969) – discusses
the history of the Charter of the United Nations and justifications as to why the Security Council is imbued
with such power.
33 Id.; See also Lillich, Richard B., Intervention to Protect Human Rights, 15 McGill L. J. 205 (1969)
34 M. Glen Johnson, The Contributions of Eleanor and Franklin Roosevelt to the Development of International
Protection for Human Rights, Human Rights Quarterly , Vol. 9, No. 1, pp. 19-48 (February, 1987)
35 Id.; See generally Johannes Morsink, The Universal Declaration of Human Rights: Origins, Drafting, and
Intent, University of Pennsylvania Press (1999)
36
Id.
Franklin Delano Roosevelt, A Rendezvous With Destiny, Speech before the 1936 Democratic National
Convention, Philadelphia, Pennsylvania (June 27, 1936); See also Franklin Delano Roosevelt, Annual Message
to Congress (January 11, 1944)
37
Id.
Id.
40 Supra note 38; See also UN General Assembly, Universal Declaration of Human Rights, 10 December 1948,
38
39
217 A (III), available at: http://www.unhcr.org/refworld/docid/3ae6b3712c.html (accessed 12 April 2012)
41 Joyner, Chritopher C., U.N. General Assembly Resolutions and International Law: Rethinking the
Contemporary Dynamics of Norm-Creation, 11 Cal. W. Int'l L.J. 445 (1981); See also Stephen M. Schwebel, The
Effect of Resolutions of the U.N. General Assembly on Customary International Law, Proceedings of the Annual
Meeting (American Society of International Law), Vol. 73, pp. 301-309 (April 26 - 28, 1979); See also Johnson, D.
H. N., The Effect of Resolutions of the General Assembly of the United Nations , 32 Brit. Y.B. Int'l L. 97 (19551956)
42
Id.
6
and juridical currency. It is generally understood that when a sovereign state
expresses that it supports a particular issue, it should not act in a manner inconsist
with those views. Additionally, although human rights, as a concept, are not
specifically defined in the UN charter, the charter does make specific reference to
“human rights.”43 This means that the UDHR is based on a constitutional principle,
which has a legal character in the UN charter itself.44 The UN charter is the
international constitution.45
Internationall, there was a need for an explicit effort to create a treaty-based
regime inspired by the UDHR. Thus, the UN generated two important treaties
using the UDHR and providing greater explication of the rights contained in it in
the form of international treaties. These two treaties are the International
Covenant on Civil and Political rights,46 and the International Covenant on Social
Cultural and Economic rights.47 These three instruments constitute what today
would refer to as an International Bill of Rights.48 The critical question now is the
role of the U.S. in adopting these treaties and making them part of U.S. law.49 In the
1950s, a new form of isolationism emerged from the extreme right wing of the U.S.
senate.50 Senator John Bricker of Ohio led this movement. Senator Bricker took the
view that he wished to bury the human rights covenant so deep that no U.S.
president would dare to resurrect it.51
A leading disply of the isolationist movement’s power came from its ability to
block the adoption of the first human rights treaty. This is the convention that
outlawed genocide.52 Senator Bricker was an impeccable enemy of international
human rights.53 The isolationist movement in the 1950s was in part fueled by the
Supra note 35.
Id.
45 Id.
43
44
International Covenant on Civil and Political Rights (16 Dec 1966)
International Covenant on Economic, Social and Cultural Rights ( 16 Dec 1966).
48 Strossen, Nadine, United States Ratification of the International Bill of Rights: A Fitting Celebration of the
Bicentennial of the U.S. Bill of Rights, 24 U. Tol. L. Rev. 203 (1992-1993) – “The three documents that
constitute the International Bill of Rights are the Universal Declaration of Human Rights, which the United
Nations adopted by consensus in 1948, and two covenants that spell out in greater detail the broad principles
enunciated in the Universal Declaration: the International Covenant on Civil and Political Rights ("ICCPR")
and the International Covenant on Economic, Social, and Cultural Rights ("ICESCR"). These three documents
contain core human
rights principles that are widely recognized by the international community”; See generally Henkin Louis, The
International Bill of Rights: The Covenant on Civil and Political Rights , Columbia University Press (1981)
46
47
Id.
See generally Sara Diamond, Roads to Dominion: Right-Wing Movements and Political Power in the United
States, Guilford Press (September 8, 1995); See also Natalie Hevener Kaufman and David Whiteman,
Opposition to Human Rights Treaties in the United States Senate: The Legacy of the Bricker Amendment,
49
50
Human Rights Quarterly , Vol. 10, No. 3, pp. 309-337 (Aug., 1988)
51 Id.; Supra note 52 at 223 – “My purpose in offering this resolution is to bury the so-called covenant on human
rights so deep that no one holding high public office will ever dare to attempt its resurrection.”
52 Convention on the Prevention and Punishment of the Crime of Genocide , Paris (9 December, 1948)
53 Supra note 55; See also Natalie Hevener Kaufman and David Whiteman, Opposition to Human Rights
Treaties in the United States Senate: The Legacy of the Bricker Amendment, Human Rights Quarterly , Vol. 10,
No. 3, pp. 309-337 (Aug., 1988)
7
success former isolationists had in blocking the adoption of the League of Nations
treaty.54 Ideologically, that perspective was also justified by the fact that in the
League of Nations there was the International Labor Organization (ILO), whose
goal it was to protect the fundamental rights of workers worldwide.55 Hence, the
ILO had the odor of socialism, an ideology deemed anathema to the right wing.56
Additionally, under the jurisdiction of the ILO were matters concerning the
protection of minorities.57 This presented the problem of the internationalization of
race relations under the progressive ILO.58 This of course was a sensitive matter for
the right wing.59 Additionally, the ILO also developed a jurisdictional concern for
indigenous people.60 The complicated and dark history of the U.S.’s treatment of
indigenous peoples further fueled the isolationist outlook.61 It should be added that
in the 1950s the Civil Rights movement for black Americans had asserted itself in
earnest into the nation’s debate halls.62 The idea that human rights values could be
mobilized to support claims for civil and political rights was another reason to
sustain the strength of isolationist demands.63
There was also a broader political struggle during this time in the Cold War.64
This decades long contest was fought on many fronts, including, and sometimes
most directly, on the front of ideology. In this battle for ideological primacy, the U.S.
postured itself as being on the side of freedom, democracy, and fundamental
rights.65 In turn, it sought to portray its adversary, most notably the U.S.S.R., as
standing for the opposite values.66 In this battle, human rights held an important
place in the U.S.’s armory of Cold War ideas.67 In this sense, the isolationists’
antipathy toward human rights was an embarrassment. In particular, its antipathy
to the adoption of the genocide convention was an embarrassment to both
republican and democratic administrations. The results of isolationist advocacy
generated an important and unintended consequence. Since the U.S. was a major
grantor of foreign aid, Congress determined that the foreign assistance from the
U.S. should be made conditional on some measure of human rights performance.68
Supra note 54 and 55.
See generally Alcock, Antony Evelyn, History of the International Labor Organization, Octagon Books (1971)
56 Id.
57 Id.
58 Id.
59 Id.
60
Id.
61 Id.
62 Id.
63 Id.
64 See Anders Stephanson, Cold War Origins, IN ENCYCLOPEDIA OF AMERICAN FOREIGN POLICY, VOLUME 1, edited
by Alexander DeConde, Richard Dean Burns, Fredrik Logevall. Simon and Schuster (2001); See also Robert L.
Messer, The End of an Alliance: James F. Byrnes, Roosevelt, Truman, and the Origins of the Cold War , Chapel
54
55
Hill: The University of North Carolina Press, Pp. 292 (1982)
Id.
Id.
67 Id.
68 See generally David P. Forsythe, Human Rights and U.S. Foreign Policy: Congress Reconsidered, University
65
66
Press of Florida (March 1, 1988)
8
Putting human rights provisions in the Foreign Assistance Act, as a part of ordinary
legislation, was a way of avoiding the specific procedure before the senate for the
adoption of a treaty.69 A treaty, of course, requires a supermajority, and thus
isolationist participation.
Placing human rights into the framework of legislation and in the Foreign
Assistance Act had far reaching implications for human rights advocacy. Since
human rights were made a condition for receiving foreign assistance, it attracted
interest groups that lobbyied for the granting or withdrawal of foreign assistance
based on a particular nation’s human rights performance. This essentially made the
culture of human rights a part of ordinary political advocacy in the national
legislative process. Foreign assistance legislation developed important
constituencies in human rights advocacy, including watchdog groups. Further, in
the executive branch, the introduction of human rights values directly into foreign
policy resulted in the development of human rights reporting by the Department of
State. This included the creation of a human rights position within the department
during the Carter Administration. This administration insisted upon the more
general principle that human rights be the framework of normative guidance for the
foreign policy of the U.S.
The significance of the introduction of human rights into the framework of
the U.S. foreign policy meant that there were many advocacy constituencies
generated and which targeted the political process. Human rights had in effect
become domesticated. Perhaps the most significant human rights achievement, in
the context of U.S. foreign relations, occurred during the Reagan administration,
after Congress enacted a unique bill called, Comprehensive Anti-Apartheid Act of
1986. This bill imposed comprehensive sanctions on South Africa based on human
rights standards and guidelines. The Reagan Administration opposed the bill but it
was enacted over the Reagan veto. The U.S. example of using foreign assistance and
foreign policy to advance human rights was also followed by many other developed
states.
Human rights interest groups explored various ways in which human rights
advocacy could be directed at the domestic courts of the U.S. The leading modern
example of this initiative is Filártiga v. Peña-Irala.70 In this case, the plaintiffs, the
Filártigas, appealed a federal district court decision that dismissed their wrongful
death claim against the defendant, Peña-Irala, for lack of subject matter
jurisdiction.71 Both the plaintiffs and defendnats were citizens of Paraguay. The
Filártiga family was purported opponents of the government of Paraguay. They
claimed that their 17-year old son, Jolito, had been kidnapped and tortured to death
by Peña-Irala,Paraguay’s inspector general of police.72 The Filártigas believed that
69
Id.
70
Filártiga v. Peña-Irala, 630 F.2d 876 (2d Cir. 1980)
Id.
72 Id.
71
9
Jolito was tortured and murdered in retaliation for the Mr. Filartiga’s political
activity.73 Initially, Filártiga filed a criminal action against Peña in the Paraguayan
courts; however, the Peña arrested Filártigas’ lawyer and chained him to a wall and
threatened his death.74 That attorney was subsequently disbarred from practicing
law. When the Filártigas heard that Peña was in the U.S., they filed a civil suit
against him asking for $10,000,000 in compensatory and punitive damages. The
complaint was filed as a suit inter alia on the basis of Alien Tort Statute (ATS).75
The ATS reads as follows: “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.”76 Although the ATS had originally been included in
the Judiciary Act of 1789, it was not widely litigated until the Filártiga decision.77
The critical question for the 2nd circuit court was, whether torture is a conduct that
violates the law of nations, and separate from one, based on treaty.78 This required
the court to examine whether torture was an international tort in violation of the
law of nations.79 That inquiry required determining whether there is a source of
international law providing legal currency to the idea of torture as an actionable
wrong under the law of nations.80 The circuit court placed strong reliance on the
identification of appropriate sources of the law of nations, as indicated in Supreme
Court precedent.81 Indeed, the 2nd Circuit quoted the following passage from The
Paquete Habana:
“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
eivilized 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 treat. 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.”82
Based in part on this precedent, Judge Irving Kaufman determined that
torture was an international wrong and a tort in violation of the law of nations
73
74
75
Id.
Id.
28 U.S.C. § 1350 (2000) – The ATS was originally part of the Judiciary Act of 1789.
Id.
Id.; See also Philip A. Scarborough, Rules of Decision for Issues Arising Under the Alien Tort Statute,
Columbia Law Review, Vol. 107:457 (2007); See also Blum, Jeffrey M. and Steinhardt, Ralph G., Federal
Jurisdiction over International Human Rights Claims: The Alien Tort Claims Act after Filartiga v. Pena-Irala,
76
77
22 Harv. Int'l. L. J. 53 (1981)
Id.
Id.; See generally Craig M. Scott, Torture as Tort: Comparative Perspectives on the Development of
Transnational Human Rights Litigation, Hart Publishing (2001); See also Michael Danaher, Torture as a Tort
in Violation of International Law: Filartiga v. Peña-Irala, Stanford Law Review , Vol. 33, No. 2, pp. 353-369
78
79
(January, 1981)
Id.
Id.
82 The Paquete Habana, 175 U.S. 677, at 700 (1900).
80
81
10
under customary international law.83 The court quoted the UN Charter, not a selfexecuting international agreement, to the effect that it established an obligation to
promote “universal respect for, and observance for human rights and fundamental
freedoms.”84 It also quoted Article 55 of the UN Charter, which stipulates that all
members of the UN “pledge themselves to take joint and separate action” for the
achievement of promoting and supporting human rights.85 The court also referenced
the UDHR, a politically, but not legally, binding declaration, based on its
stipulation that no one shall be subjected to torture.86 The court noted that the U.N.
General Assembly had indicated that the Charter precepts embodied in theUDHR
“constitute basic principles of international law.”87 The court found further support
in the UDHR on the protection on all persons being subjected to torture.88 Finally,
the court also drew on developments seeking to outlaw torture in regional
international law.89 In the court’s view, the cumulative effect of these expressions
83
84
Supra note 91.
Id. at Part II – “The United Nations Charter (a treaty of the United States, see 59 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.”
Id.
Id. – “While this broad mandate has been held not to be wholly self-executing, Hitai v. Immigration and
Naturalization Service, 343 F.2d 466, 468 (2d Cir. 1965), this observation alone does not end our inquiry. (9) For
85
86
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." (10) 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).”
87
88
Id.
Id. – “These U.N. declarations are significant because they specify with great precision the obligations of
member nations under the Charter. Since their adoption, "(m)embers can no longer contend that they do not
know what human rights they promised in the Charter to promote." Sohn, "A Short History of United Nations
Documents on Human Rights," in The United Nations and Human Rights, 18th Report of the Commission
(Commission to Study the Organization of Peace ed. 1968). Moreover, a U.N. Declaration is, according to one
authoritative definition, "a formal and solemn instrument, suitable for rare occasions when principles of great
and lasting importance are being enunciated." 34 U.N. ESCOR, Supp. (No. 8) 15, U.N. Doc. E/cn.4/1/610 (1962)
(memorandum of Office of Legal Affairs, U.N. Secretariat). Accordingly, it has been observed that the Universal
Declaration of Human Rights "no longer fits into the dichotomy of "binding treaty' against "non-binding
pronouncement,' but is rather an authoritative statement of the international community." E. Schwelb, Human
Rights and the International Community 70 (1964). Thus, a Declaration creates an expectation of adherence,
and "insofar as the expectation is gradually justified by State practice, a declaration may by custom become
recognized as laying down rules binding upon the States." 34 U.N. ESCOR, supra. Indeed, several
commentators have concluded that the Universal Declaration has become, in toto, a part of binding, customary
international law. Nayar, supra, at 816-17; Waldlock, "Human Rights in Contemporary International Law and
the Significance of the European Convention," Int'l & Comp. L.Q., Supp. Publ. No. 11 at 15 (1965).”
89 Id at Part III – “the sphere of domestic jurisdiction is not an irreducible sphere of rights which are somehow
inherent, natural, or fundamental. It does not create an impenetrable barrier to the development of
international law. Matters of domestic jurisdiction are not those which are unregulated by international law,
but those which are left by international law for regulation by States. There are, therefore, no matters which
11
generated an unambiguous expectation that torture is universally condemned and
prohibited in customary international law.90
Shortly after Filártiga, the U.S. Circuit Cour for the District of Columbia
heard Tel-Oren v. Libyan Arab Republic, another case related to human rights.91 In
Tel-Oren, the critical question was whether terror is a tort in violation of the law of
nations.92 The three circuit judges deciding the case, Bork, Edwards, and Robb, all
voted to dismiss the lawsuit, but they provided radically different grounds for doing
so.93 The opinions appeared to effectually undue Filártiga.94 Judge Bork reasoned
that an interpretation of the 1789 Judiciary Act should be guided by the original
intent of the drafters. In Bork’s view, the original intent of Congress in 1789 could
have conceivably had only three cases in mind; (1) safe conducts; (2) infringement of
ambassadorial rights; and (3) piracy.95 Judge Bork therefore concluded that the
framers could not have envisioned either torture or terrorism, and thus it did not
apply. The second opinion, by Judge Edward’s, reasoned that that liability should be
extended to non-state actors. The third opinion, by Judge Robb, reasoned that the
entire matter implicated the political question doctrine.
Judge Bork’s opinion also contained a more technical basis for dismissal than
merely original intent. He reasoned that none of the sources including either
treaties or customary international law created “an explicit grant of a cause of
action.” The existence of an explicit grant of a cause of action isnecessary for legal
action in the courts. In the absence of such a cause of action, the judiciary would be
encroaching on the constitutional powers of the other two branches of government
in the conduct of foreign relations. In effect even if there was federal jurisdiction
under the ATS, no explicit cause of action had in fact been created to permit the
plaintiffs to pursue the claim. Judge Borke’s insistence upon an international cause
are domestic by their "nature.' All are susceptible of international legal regulation and may become the subjects
of new rules of customary law of treaty obligations. Preuss, "Article 2, Paragraph 7 of the Charter of the United
Nations and Matters of Domestic Jurisdiction," Hague Receuil (Extract, 149) at 8, reprinted in H. Briggs, The
Law of Nations 24 (1952).”
90 Id. – “Having examined the sources from which customary international law is derived the usage of nations,
judicial opinions and the works of jurists (16) we conclude that [HN5] 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. Accordingly, we must conclude that the dictum in Dreyfus v. von Finck, supra, 534 F.2d at
31, to the effect that "violations of international law do not occur when the aggrieved parties are nationals of the
acting state," is clearly out of tune with the current usage and practice of international law. The treaties and
accords cited above, as well as the express foreign policy of our own government, (17) 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. We therefore turn to the question whether the other requirements
for jurisdiction are met.”
91 Tel-Oren v. Libyan Arab Republic, 726 F. 2d 774 (D.C. Cir. 1984)
Id.
Id.
94 Id.
95 Id. at 779 – “The principal offenses against the law of nations, animadverted on as such by the municipal laws
92
93
of England, are of three kinds: 1. Violation of safeconducts; 2. Infringement of the rights of ambassadors; and, 3.
Piracy.” 4 Blackstone’s Commentaries 67 (Welsby ed. 1854) (emphasis added).”
12
of action is not a matter that could have been established in 1789, since there were
no causes of action then.
The system of pleadings was based on the formulary system requireing a
specific pigeon hole of liability. In fact, the formulary system grew out of the
common law and its peculiar history. In the 19th century, the forms of action were
eventually displaced by the system of co-pleading and that system relies on the
concept of a cause of action to state a valid claim at law. However the code system
developed its own problems and in 1938 the Supreme Court adopted a new system
of rules of federal procedure. Central to the new system was a throwing out of the
code system of pleading causes of action. The federal rules required notice pleading,
a short plain statement of the claim indicating that the pleader is entitled to relief.
Thus, Judge Bork’s strict pleading standard is no longer the law governing pleading
and procedure in federal courts.
The Tel-Oren case has not been a significant influence on the development of
human rights law under section 1350 of the ATS. A sizeable body of case law
developed in other circuits. In Todd v. Panjaitan, an Indonesian general was held
liable for the death of a young student-activist during the 1991 East Timor Dili
massacre. In Forti v. Suarez-Mason, the court held that torturers from Argentina
who acted against fellow citizens were enemies “to all mankind” and thus subject to
the jurisdiction of any country, even though the atrocities were committed
elsewhere and the parties were not citizens of that country).96 In Paul v. Avril, the
dictator-president of Haiti was held liable for the torture of five political
opponents.97
The Forti v. Suarez-Mason case in the ninth circuit has been extremely
helpful for clarifying the ostensible differences in the interpretation of § 1350 in
Filártiga and Tel-Oren. In Forti, the court concluded that the interpretation given
to § 1350 in Filártiga was “better reasoned and more consistent with principles of
international law.” The court noted a growing consensus in practice that “section
1350 provides a cause of action for certain international common law torts.” The
court therefore explicitly rejected the Judge Bork’s requirement of that the plaintiff
must establish “the existence of an independent, express right of action, since the
law of nations clearly does not create or define civil actions, and to require such an
explicit grant under international law would effectively nullify that portion of the
statute which confers jurisdiction over tort suits involving the law of nations.” The
court concluded that a plaintiff need only plead a tort in violation of law of nations.
The implications of Tel-Oren’s interpretation of § 1350 is that that section not only
provides for jurisdiction, but also establishes the basis of a cause of action. This
federal cause of action arises from the recognition of certain international torts
Forti v. Suarez-Mason, 672 F. Supp. 1531 (N.D. Cal. 1987).
901 F. Supp. 330 (S.D. Fla. 1994). See also Kadic v. Karadzic, 70 F.3d 232, (2d Cir. 1996); Deutsch v. Turner
Corp, 324 F.3d 692 (9th Cir. 2003); Carmichael v. United Technologies Corp., 835 F.2d 109 (5th Cir. 1988);
Tachiona v. United States, 386 F.3d 205 (2d Cir. 2004.).
96
97
13
through the prism of § 1350. The standards that guide the recognition of these
international torts are that they represent a universal consensus in the
international community as to the binding status and content. In short, the
standard of customary international law for § 1350 purposes is that the foundation
for a causes of actions for an international tort must have the character of
universality, it must be definable, and it must carry the mantle of an obligatory
international legal norm.
In the first Forti decision, the court determined that “causing a
disappearance did not meet the customary law criteria quoted above.” The court
came to the same conclusion with regard to the alleged international tort of cruel,
inhuman and degrading treatment.” In the second Forti decision, the court
reexamined these issues with the support of a multitude of jurist consults indicating
that there was a universal consensus about the expectation of obligation regarding
the wrong of causing a disappearance. The court in particular quoted the opinion of
Professor Franck “the international community has also reached a consensus on the
definition of a disappearance. It has two essential elements: a) abduction by a state
official or by persons acting under state approval or authority and b) refusal by the
state to acknowledge the abduction and detention.” The court also noted that the
Restatement of the Law (3d) of Foreign Relations Law of the United States § 702
includes “disappearance as a violation of the international law of human rights.”
These and other materials in the form of resolutions, declarations, and reports led
the court to conclude that the material before it were “sufficient to establish the
existence of a universal and obligatory international proscription of the tort of
causing a disappearance.” The court however found that the tort of cruel, inhuman,
or degrading treatment was insufficiently precise and insufficiently developed to
qualify as a tort in violation of law of nations under § 1350.
The precise status of human rights claims under § 1350 was significantly
clarified by the United States Supreme Court inn Sosa v. Alvarez-Machain.98 An
important consequence of Sosa is that it supports the second and the ninth circuit
conclusion that a selected number of human right torts are actionable under the
ATS. In Sosa, plaintiff Alavarez-Machain sued defendant Sosa for the alleged tort of
arbitrary detention. Specifically, Sosa led a group of Mexican nationals who
abducted Machain and had him secreted to the United States where he was
arrested and made to stand trial for allegedly being implicated in the torture
murder of a DEA agent in Mexico. The Supreme Court declined to extend the scope
of human rights torts to the wrong of arbitrary detention. According to the Court,
“any credible invocation of a principle of 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.”99 In short, the relatively
short period Alvarez was detained by Sosa was not a wrong of sufficient gravity to
98
99
Sosa v. Alvarez-Machain, 542 U.S. 692 (2004)
Id.
14
constitute a breach of a universal, defined, and obligatory rule of customary
international law.
The Supreme Court in Sosa gave careful consideration to the history of the
Alien Tort Statute and the context of the law of nations during the period of its
enactment. The Court notes that the term “law of nations” contained two
identifiable meanings reflected in practice. First, that the law of nations was
essentially about the rules that operate between “nations.” Second, however, the
Court noted a separate and more pedestrian meaning whereby a judge made law
regulating individuals functioning outside of domestic boundaries. These domestic
forms of conduct had an international character. They included mercantile issues
such as bills of exchange, marine causes such as freight, average, demurrage,
insurances, bottomary… (in all disputes related to prizes, to shipwrecks, hostages
and ransom bills). The Court noted that it had the law of nations in mind when it
decided Paquete Habana. In that case, the status of coastal fishing vessels in
wartime grew from “ancient usage amongst civilized nations, beginning centuries
ago, and gradually ripening into a rule of international law.” The Court also
referred to another class of cases where binding obligations were imposed on
individuals which were derived from the norms of state relationships. Referring to
Blackstone, the court identified the violation of safe conducts, the infringement of
the rights of ambassadors, and piracy. This is obviously a narrow set of violations to
the law of nations that historically provided a judicial remedy. [Is this the author’s
opinion? Perhaps it can be fleshed out more.]The Court thought that these
violations were probably on the minds of those who drafted the ATS with its
reference to tort.
The Court agres with Judge Bork view that the ATS is a jurisdictional
statute and that it does not create new causes of action. The Court adds, however,
that a reasonable inference from historically background suggests that the statute
was meant to have a practical effect the moment it became law. Thus, the Court
maintains that the jurisdictional foundation of the statute is best read as “having
been enacted on the understanding that the common law would provide a cause of
action for a modest number of international law violations with a potential for
personal liability at the time.” The Court concludes that:
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 Filártiga v. Peña-Irala has categorically precluded federal courts
from recognizing a claim under the law of nations as an element of the
15
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 of a federal court
should exercise in considering a new cause of action of this kind.
Accordingly we think the courts should require any claim based on the
present day law of nations to rest on the norm of international
character accepted by the civilized world and defined with specificity
comparable to the feature of 18th-century paradigms we have
recognized.100
The court then examines the fundamental reasons of judicial policy for the
approach that is cautious with respect to the creation of human rights causes of
action under § 1350. First, the central point that the court makes is that the view of
the common law in 1789 was influenced by Blackstone’s natural law outlook. This
means that the court could create its own common law beyond secular political
authority. Second, this discretionary view of the common law was rejected by the
case of Erie v. Tompkins, which provided a strong positivists gloss to the question of
the status of common law in the federal courts.101 In Erie, the Supreme Court held
that federal courts, as courts of limited jurisdiction, cannot create their own
independent forms of federal common law. There are, however, limited
circumstances where the courts have been required to develop rules of a narrowly
formulated common law by necessity doctrine. Additionally, it has become more
apparent that the role of the federal courts in the making and application of
international law are in effect applying international law as a form of the common
law. It is generally accepted that there is an international law as a part of federal
common law, Erie notwithstanding. Essential to the Court’s analysis reflecting
judicial caution is the problem of the separation of powers and the management of
foreign relations. In other words, determining how far the judiciary might go in
creating private causes of action in international law without compromising the
powers held by the executive and legislature branches. The court reasons that
federal courts “have no Congressional mandate to seek out and define new and
debatable violations of the law of nations, and modern indications of Congressional
understanding of the judicial role in the field have not affirmatively encouraged
greater judicial creativity.” The court notes, however, the clear mandate of Torture
Victim Protection Act of 1991 which “establishes an unambiguous modern basis for
federal claims of torture and extrajudicial killing.” The Court also notes that in the
legislative history there is remark that “§ 1350 should “remain intact” to permit
suits based on other norms that already exist or may ripen in the future into rules
of customary international law.” The Court notes that Congress itself has done
“nothing to permit such suits.” It perhaps could be indicated that Congress has done
nothing to limit the development of § 1350 in the context of human rights claims.
The Court therefore reasons that the door is still ajar for a narrow class of cases
100
Id.
101
304 U.S.64 (1938).
16
based on international norms. The Court supports this by stressing its ong history
affirming that the domestic law of the United States recognizes the law of nations.
The Court recognizes that the United States courts do apply international law as a
part of our own law in appropriate circumstances. The Court continues that in the
past it has held that “international law is a part of our law and must be ascertained
and administered by the court of justices of appropriate jurisdiction as often as
questions of right depending on it are duly presented for their determination.”
Moreover, the Court has recognized recently that international disputes implicating
U.S. relations with foreign nations are one of the narrow areas in which federal
common law continues to exist. The Court reasons as follows: “it would take some
explaining to say now that federal courts must avert their gaze from any
international norm intended to protect individuals.”
A central concept of normative guidance regarding the role of the courts in
the recognition of international law as federal common law for the purpose of § 1350
is the statement of Judge Souter as follows “…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 features of 18th century paradigms we have recognized.” A significant problem
with this test is whether it is largely a reliant on the 18th century paradigms for
purpose of specificity required to define an international tort in violation of the law
of nations.
A significant case came before the Second Circuit providing an opportunity to
apply the Sosa standards. In Khulumani v. Barclay National Bank, LTD.,102
plaintiff’ sued a corporate defendant claiming that they should be liable under the
ATS for aiding and abetting in the tort of apartheid in violation of the law of
nations. The lower court held that tortious liability did not extend to corporations
whose business practices in South Africa waere seen as aiding and abetting in the
policies and practices as well as repression used by the apartheid regime to sustain
its power. On one hand Judge Souter lists a number of reasons why the lower courts
must be careful in creating new causes of action under the authority of section 1350.
Here the Supreme Court suggests that some normative guidance may be gleaned
from the context of 18th century paradigms of liability which may have been within
the contemplation of Congress. On the other hand, the Court is clear that although
the ATS is jurisdictional, the proper interpretation goes beyond a pure jurisdictional
gloss. To give it such a narrow meaning the court held would be to render the ATS
meaningless. The Court reasons therefore that Congress must have intended that
the courts have the power to create limited tort causes of action under the law of
nations. This means that the proper interpretation of § 1350 is to give the lower
court’s the discretion to recognize and give effect to torts based on wrongs in
violation of the law of nations. On the specific facts of Sosa, a rather short period of
arbitrary detention does not give rise to liability under the ATS. However, the Court
102
504 F.3d 254 (2d Cir. 2007)
17
seems to at least imply that the nature of the declaration must be of sufficient
gravity, in addition to meeting the test of universality and definition in terms of the
statute.
The trial judge in Khulumani focused his attention on most exclusively on
thae part of Sosa which stresses caution and limitation in the creation of actionable
claims under the ATS. That conclusion is supported by the court’s reasoning that
apartheid does not meet the standard of definability. Moreover, apartheid appears
to represent a problem that is less juridical and more political. The court was
especially antagonistic to the claim that private sector corporations could be liable
for the activities of the apartheid state to the extent that they aided and abetted in
the policies and practices of apartheid when doing business in South Africa. The
central issue for the Second Circuit on appeal was the district court’s ruling that
under the ATS aiding and abetting was not a recognizable theory of liability. Two
judges on that court held that aiding and abetting was a recognizable theory of
liability. According to Judge Katzman, Sosa required that the courts examine scope
of liability questions from the perspective of international law. Looking to the Rome
Statute103 of the international criminal court, Judge Katzman concluded that aiding
and abetting liability is an accepted theory of secondary liability. Under the Rome
Statute, it is the equivalent of rendering aid to someone who commits a crime.
Judge Hall, who joined in the majority, also concluded that Sosa requires an
examination of customary international law to determine the standard of ATS
liability. However, he suggested that the standards of accessory liability should be
based on U.S. domestic law. To this end he maintains that the proper test is in the
Restatement Second of Torts Section 876(b). According to the Restatement one aids
and abets in tortious conduct “if he knows that the other’s conduct constitutes a
breach of duty and gives substantial assistance or encouragement to the other.”
This standard merely requires mens rea with regard to general knowledge, while
the Rome Statute mens rea requires specific intent. Judge Korman dissented. In his
dissenting opinion, however, he suggested a preference for Judge Katzman’s test on
aiding and abetting.104
The circuit court’s focus on the issue of aiding and abetting corporate liability
prevented it from clarifying other aspects of the Sosa, in particular its implication
for characterizing apartheid as a tort in violation of law of nations under the ATS.
We therefore draw on substance of two amicus briefs filed with the Second Circuit
during the period prior to the appellate hearing. These briefs explore the problem
that Sosa represents in terms of the guidance of an 18th century legal paradigm for
actions under the ATS. Second because the judges, including the trial judge, implied
(July 17, 1998, 2187 U.N.T.S. 90, Art 25).
The majority’s decision in Khulumani that aiding and abetting is a valid theory for corporate ATS liability
finds support in a number of other cases. Almog v. Arab Bank, PLC, 471 F. Supp.2d 257, 287 (E.D.N.Y. 2007);
Kiobel v. Royal Dutch Petroleum Co., 456 F.Supp.2d 457 (2006); Presbyterian Church of Sudan v. Talisman
Energy, Inc., 453 F. Supp.2d 633, 668 (S.D.N.Y. 2006); Bowoto v. Chevron Corp., No. C 99-02506, 2006 U.S.
Dist. LEXIS 63209 (N.D. Cal. Aug. 22, 2006); In re: “Agent Orange” Prod. Liab. Litig., 373 F. Supp.2d 7, 52-54
(E.D.N.Y. 2005). But see Doe v. Exxon Mobil corp., 393 F. Supp.2d 20, 24 (D.D.C. 2005).
103
104
18
some reservations and prudential misgivings about the idea of apartheid as a tort in
violation of the law of nations, we propose to clarify that issue as well. Below is a
summary of the central arguments in those amicus briefs.
II.
APARTHEID AS A TORT IN VIOLATION OF THE LAW OF NATIONS
A. VIOLATION OF THE RULES OF CUSTOMARY INTERNATIONAL LAW FOR
THE TORT OF APARTHEID GIVES RISE TO CLAIMS FOR THE
APPROPRIATE CIVIL ACTION IN THE FEDERAL COURTS UNDER THE
ALIEN TORT STATUTE.
To determine whether apartheid is an international wrong, and thus whether
as an international wrong it is specifically unlawful, requires an analysis of what
apartheid actually is and how it is is operationally defined. By defining apartheid,
we can determine whether it is a tort thatviolates international law in light of the
practices within the international community and the federal courts. This specific
case deals with private economic actors who have allegedly been complicit in the
perceived wrongs characterized through apartheid. This complicity is tantamount to
a quid pro quo for the receipt of economic preferences for direct and indirect support
of apartheid policies and practices, which resulted in grave human rights
deprivations. These apartheid policies and practices comprise an important aspect
of what the international community has outlawed as a matter of positive
international law. Thus, the corporations that allegedly directly and indirectly
aided and abetted the implementation of the policies and practices of apartheid
were in fact complicit in the wrongs for which the plaintiffs have suffered damages.
An authoritative study done in 1975 concluded as follows: “So long as [the
corporations] are present in South Africa and conducting normal business activities,
American firms remain subject to charges of assisting in the maintenance and
strengthening of apartheid.”105 The study was done in consultation with many
corporations doing business in South Africa and the corporations were fully
cognizant of the meaning of apartheid.106
We submitted that no Herculean effort of pleading is needed to state a claim
for relief in clear and unambiguous terms that apartheid is unlawful in
international law. Indeed, the unlawfulness of apartheid is firmly established in
customary international law, which is a part of federal common law. The principle
is established that wrongs characterizable as having a tortious character may be
appropriately adjudicated in the federal courts. To the extent that the District
Court was seemingly confused about what apartheid actually is (“a cornucopia of
horrible things”) not having been condemned unlawful in international law, the
Center respectfully seeks to address these precise questions. (1) What is apartheid?
Donald McHenry, United States Firms in South Africa: Study Project on External Investment in South
Africa and Namibia (South-West Africa), 37 (Africa Publications Trust, The African Studies Program, Indiana
University, Bloomington Indiana 1975).
106 Id. at 1-2.
105
19
(2) Why is apartheid a wrong in international law? (3) Why does it have delictual or
tortious character? (4) Why is it appropriate for United States federal courts to
adjudicate the international tort of apartheid formulated as a claim for with the
federal courts are suitable instruments for giving relief?
B. APARTHEID IS DEFINED WITH SUFFICIENT SPECIFICITY TO ESTABLISH
A CIVIL ACTION FOR TORT UNDER THE ATS.
What is apartheid? Apartheid was invented by the ruling Nationalist
government of South Africa in 1948. The term apartheid is a neologism. The term
literally breaks into apart (an English word) and heid (an Afrikaans word that
translates into the suffix “-ness”). Apartheid was the policy and practice of South
Africa’s ruling party prior to the establishment of a government of reconciliation. 107
When the National Party won the elections of 1948, it began a program of
systematic racial discrimination designed to cover every facet of human intercourse
for which there might be trans-group contact or interaction.108
Beyond these practical and historical definitions, apartheid has meaning as a
term with juridical qualities. Apartheid is a systematic pattern of policy and
practice for establishing of domination and subjugation based on racial pedigree. It
is sustained by the total apparatus of the state. In policy and practice, it deprives
the subjugated races of the most fundamental human rights established in
international law. That apartheid is characterized by racial domination essentially
means that the practice of such domination is more virulent than mere racial
discrimination.109 To be more specific, the definition of apartheid under Article
7(2)(h) of the Rome Statute of the International Criminal Court comprises an
appropriate starting point from which to begin the definition of apartheid.
The Rome Statute sought to more narrowly define the international law
wrong of apartheid in terms of established humanitarian law precepts. The Rome
Statute’s definition is useful in the sense that it gives a strong legal imprimatur to
those aspects of apartheid that have a criminal law character. It does not, however,
cover aspects of wrongs that may be included in a concept civil liability. This would
be much broader than the stipulations of positive criminal law. The Rome Statute,
which has come into force, has generated a substantial global consensus. Although
the United States is not a party to the Rome Statute, many of the principles codified
in the Rome Statute, including the anti-apartheid principles, already have the
status of customary international law; hence, specific parts of the Statute simply
reinforce the legal character of already existing rules of customary international
THE OXFORD HISTORY OF SOUTH AFRICA VOL. II 1870-1966 (Monica Wilson & Leonard Thompson eds.,
Clarendon Press 1971) at 374.
108 Donald L. Horowitz, A Democratic South Africa? Constitutional Engineering in a Divided Society at 10
(University of California Press 1991).
109 M. MCDOUGAL, et al., HUMAN RIGHTS AND WORLD PUBLIC ORDER, 523; Winston P. Nagan, Racism, Genocide
and Mass Murder: Toward a Legal Theory about Group Deprivations , 17 NATIONAL BLACK L. J. 133 (Columbia
Edition 2004) (“Group Deprivations”).
107
20
law. As such, the Statute could certainly serve to strengthen the expectation that a
particular rule of customary international law is appropriate for enforcement in
civil proceedings. With regard to apartheid, the Rome Statute stipulates:
The crime of apartheid means inhumane acts of a character similar to
those referred to in…[Article 7(1) of the Rome Statute, including
“Murder,” “Extermination,” “Enslavement,” “Deportation or forcible
transfer of [a] population,” “Imprisonment or other severe deprivation
of physical liberty in violation of fundamental rules of international
law,” “Torture,” “Rape, sexual slavery, enforced prostitution, forced
pregnancy, enforced sterilization, or any other form of sexual violence
of comparable gravity,” “Persecution against any identifiable group or
collectivity on political, racial, national, ethnic, cultural, religious,
gender…or other grounds that are universally recognized as
impermissible under international law…,” “Enforced disappearance of
persons,”… and “Other inhumane acts of a similar character
intentionally causing great suffering, or serious injury to body or to
mental or physical health”], committed in the context of an
institutionalized regime of systematic oppression and domination by
one racial group over any other racial group or groups and committed
with the intention of maintaining that regime.110
It is important to note that this definition has been criticized for its failure to
address other aspects of apartheid, such as the social, economic, and political
implications of dividing particular populations and prohibiting inter-group
socialization, professional conduct, marriages, and more.111 Accordingly, jurist
consults derive from the statute’s definition a coherent and explicit definition of
apartheid that serves as the legal predicate for the formulation of a civil action in
law.
Apartheid has the characteristics of slavery, caste, and racial discrimination.
The fact that apartheid is a more virulent form of racial discrimination does not
diminish its legal characterization as prohibited in international law. Slavery and
caste are as well prohibited. The fact that apartheid has elements of these
prohibited forms of conduct in international law does not mean that apartheid is
construed as not having the imprimatur of law to establish its unlawfulness. The
fact that a so-called cornucopia of specific prohibited behaviors flow from the policy
and practice of apartheid does not mean that the catalog of explicit human rights
and humanitarian law violations are immune from the characterization that they
UN General Assembly, Rome Statute of the International Criminal Court (last amended January 2002), 17
July 1998, A/CONF. 183/9, available at: http://www.unhcr.org/refworld/docid/3ae6b3a84.html [accessed 16 April
2012]
111
Human Rights Watch, Summary of the Key Provisions of the ICC Statute, available at
http://hrw.org/campaigns/icc/docs/icc-statute.htm (last visited January 3, 2011).
110
21
are essentially unlawful and that legal remedies may be applied in appropriate
circumstances by the courts.
C. APARTHEID IS WRONGFUL AND CORRESPONDINGLY UNLAWFUL IN
CUSTOMARY INTERNATIONAL LAW
It is well established in United States practice that the federal courts may
directly apply customary international law to appropriate cases for which
jurisdiction is established. It is important to note that slavery was once validated by
customary international law then outlawed by customary international law. This is
conventional international law.
In Prigg v. Pennsylvania, a case involving a fugitive slave, Justice Story
noted that conventional or customary international law was in fact used to justify
the institution of slavery.112 The Court also noted that customary international law
normally applied to the colonies prior to the revolution and continued to do so after
the revolution. In short, courts directly applied customary international law to
protect private rights unless those rights were changed by explicit statutory
intervention.
The central principle regarding the binding force of customary international
law in United States courts was firmly established in The Paquete Habana, which
holds:
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. For this purpose, where there is no treaty, and no
controlling executive or legislative act or juricial 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 treat. 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.113
The District Court does not recognize apartheid as a wrong in customary
international law. This is not the case.
The International Court of Justice (ICJ) is the institution in international
law that is charged with the authoritative interpretation of the character and reach
of international law. In 1971, the ICJ determined as a juridical matter, that
112
113
41 U.S. 539, 563-4 (1842)
Supra note 81.
22
apartheid was simply unlawful in international law.114 In defining that apartheid is
unlawful the court stated that apartheid which was promulgated: “[t]o establish …,
and to enforce distinctions, exclusions, restrictions and limitations exclusively based
on grounds of race, colour, descent or national or ethnic origin which constitutes a
denial of fundamental human rights is a flagrant violation of the purposes and
principles of the Charter.”115
This authoritative interpretation by the I.C.J. stands in stark contrast to the
proposition that apartheid is not a wrong in international law. The specific status
from a “binding” perspective of an advisory I.C.J. opinion is not critical. What is
critical is that such a ruling from this authoritative source influences the
expectations which are crucial to the establishments and maintenance of a
customary rule of international law that apartheid is unlawful. The I.C.J. refers to a
legal construction of the United Nations Charter. 116 The Charter is not selfexecuting from the perspective of United States domestic courts, but its provisions
establish and maintain the generally agreed upon norms of world order and also
give rise to the expectations codified in specific customary international law rules.117
The I.C.J.’s ruling in 1971 simply reflected the overwhelming expectation that
particular contraventions of international law were juridically unlawful and not
merely violations of a form of positive morality.
The severity of the human rights deprivations through apartheid represents
a degree of deviance from international legal norms which generated specific
initiatives to define apartheid as a crime against humanity. Correspondingly, the
effort to criminalize core aspects of apartheid required a narrower definition in
order to establish unambiguously those aspects of apartheid that were criminal.
Using the policies and practices of the repressive aspects of apartheid, the
international community found a striking correspondence to the international
crimes prosecuted at Nuremburg.118 The principles by which the Apartheid
Convention is based, regardless of the specific number of ratifications it received,
were principles already established under customary international law.119 The
Apartheid Convention is a source of evidence of state practice, giving specific
meaning to already accepted principles of international criminal law. Even if it is
Advisory Opinion on Legal Consequences for States of the Continued Presence of South Africa in Namibia
(South West Africa) Notwithstanding Security Council Resolution 276 (1970), 1971 I.C.J. 16 (“Namibia Case”).
115 Id. at 57.
114
116
Id.
Baxter, Richard R., TREATIES AND CUSTOM, 129 Recueil des Cours (Hague Acad. Int’l L.) 25, 32-104 (1970-I);
Higgins, Rosalyn, PROBLEMS AND PROCESS: INTERNATIONAL LAW AND HOW WE USE IT (1994).
118 Charter of the International Military Tribunal, Annex to the Agreement for the Prosecution and Punishment
of the Major War Criminals of the European Axis, Aug. 8, 1945, 82 U.N.T.S. 279, reprinted in 39 Am. J. Int'l L.
257 (Supp. 1945); International Convention on the Suppression and Punishment of the Crime of Apartheid
(Apartheid Convention), Nov. 30, 1973, Arts. 1-3, 1015 UNTS 243; Winston P. Nagan and Lawrence Albrecht,
"Judicial Executions and Individual Responsibility: The Case of The Sharpeville Six," United Nations Center
Against Apartheid/ Notes and Documents, 6: 1-9 (1988), reprinted in Without Prejudice, The EAFORD
International Review of Racial Discrimination, Vol. II, No. 2.
117
119
Id.
23
alleged that there is some novelty in the nature of the repression which
characterized apartheid, it could hardly be maintained that no universal consensus
exists that apartheid is unlawful or that it can result in wrongs of a tortious
character and that remedies in the form of damages are unexceptional for tort
claims in the United States.
Given the universal consensus and condemnation of apartheid by the world
community,many advocates considered various strategies consistent with
international law to eliminate apartheid. A parallel example existing in the case of
I.G. Farbin, in which a corporate giant was involved in the “final solution” of Nazi
Germany.120 Both the United Nations and individual nation states generated
resolutions, declarations, and foreign policy directives designed to end apartheid.
These included cultural and academic boycotts, unilateral and collective economic
sanctions, arms embargoes, private sector campaigns for corporate disinvestment
and divestment from any involvement with and financing of the political economy of
apartheid, and selected natural resource sanctions, such as those against oil,
precious stones, etc.121 Given the notoriety in the United States of the problems of
Polaroid and General Motors in South Africa[One needs background to understand
this. The ‘notoriety’ diminishes through time.], and given the specific issues of
corporate responsibility and respect for international law, private sector actors)
involving themselves in the political economy of apartheid were consistently put on
notice as it the unlawful character in international law.122
In the United States, the anti-apartheid perspective expressed itself in the
Comprehensive Anti-Apartheid Act of 1986 which imposed economic sanctions on
South Africa and threatened sanctions against those who sought to benefit from
United States sanctions. The United States foreign relations initiative required by
Congress was not unusual in the world community as an expression of policy to
support respect for international law and human rights.
Judge Sprizzo listed five specific criteria that he determined should influence
the interpretation of the ATS in the light of apartheid as a tort.123 The District Court
indicated that apartheid would have to “rest on a norm of international character
accepted by the civilized world.”124 The universal rejection of apartheid by the
Winston P. Nagan, Economic Sanctions, U.S. Foreign Policy, International Law and the Anti-Apartheid Act
of 1986, 4 FLA. INT’L L.J. 85, fn 281 (1988) (“Economic Sanctions”); See generally J. Borkin, THE CRIME AND
120
PUNISHMENT OF I.G. FARBIN (1980).
121 Winston P. Nagan, “An Appraisal of the Comprehensive Anti-Apartheid Act of 1986,” 5 J.L. & RELIGION 327
(1987); “Economic Sanctions” 4 FLA. INT’L L.J. 156-157.
122 See Letter to the Secretary General of the United Nations from The ANC, March 7, 1973, available at
http://www.anc.org.za/ancdocs/history/people/nzo/lt030773.html (last visited August 26, 2005); Apartheid and
Doing Business in South Africa: General Motors and South Africa , National Council of Churches newsletter,
March
1973
issue,
available
at
http://disa.nu.ac.za/articledisplaypage.asp?filename=SeMay73&articletitle=Apartheid+and+Business+in+South
+Africa+%2D+General+Motors+in+South+Africa (last visited August 26, 2005).
123 Apartheid Litigation, 346 F.Supp. 2d at 547-8.
124 Id. at 547.
24
civilized world and its notorious characterization as a norm which violates
international law is firmly established. The District Court also refers to the fact
that apartheid should be defined with specificity comparable to the features of 18 th
Century paradigms of law.125 While the District Court reads this as a procedural
hurdle, we submitted it is not. Specificity here simply requires the norm to have
content necessary for a tort. The District Court, appreciating changes in the
common law, must be prudent about creating new law under the statute. By
definition, custom is not new law. The role of the court is simply to declare whether
the rigorous tests to determine its content, authority, and ubiquity are met. This is
clearly already a fact in the instant case.
The District Court expresses appropriate concern for the foreign relation
consequences of declaring customary international law. It should be noted, however,
that the condemnation of apartheid by the executive branch of the government of
the United States has been a long and consistent practice. Moreover, Congress itself
makes human rights an aspect of the foreign relations of the United States as
indicated in the Foreign Assistance Act of 1961.126 Finally, Congress itself enacted a
comprehensive sanctions regime against South Africa based on the fact that
apartheid was a violation of international law.127 The foreign relations concerns in
this case are indeed minimal. The District Court’s concern that the courts must
have a Congressional mandate to declare customary international law is a novel
principle of interpretation unsustained by practice.
The prohibition of apartheid meets the exacting requirements of what
constitutes a wrong in customary international law. Given the strict standard of the
pleadings demanded by the trial court, we submit that the court did not give
adequate attention to the specific issue that it had to address, namely whether
apartheid is indeed a wrong in international law. A wrong in international law may
be categorized as a wrong having a tortious character appropriate for litigation
under the ATS. As earlier indicated, this requires us to provide an adequate
definition of what apartheid is an indication of its universal condemnation, an
indication moreover that the condemnation was meant to have a legal character in
international law.
D. APARTHEID IS AN INTERNATIONAL TORT UNDER THE ATS.
Characterizing apartheid as a wrong in international law leaves open the
question of whether some its aspects generate liability under civil law because they
are, quite simply, torts in violation of the law of nations. The test for a tortious
claim under customary international law rests on the rigorous test whether
international law itself provides to determine (a) whether there is a wrong; (b)
whether the wrong may be fairly characterized as tortious or delictual; and (c)
125
Id. at 547.
126
P.L. 87-195, 75 Stat. 424.
Comprehensive Anti-Apartheid Act of 1986, P.L. 99-440, 100 Stat. 1086.
127
25
whether the remedies sought is appropriate to the role of a Court of limited
jurisdiction. This specific formulation permits us to focus on the exacting tests used
to determine what exactly counts as a rule of customary international law. That test
establishes the principle accepted in the federal Courts that customary
international law must demonstrate a universal consensus, that the relevant rule
must be definable, obligatory, and universally accepted. 128 The international law
test is focusing on the opinio juris sive nessicitatis as well as the practice among
states that they must have a certain uniformity, consistency and therefore
coherence as claim appropriate for adjudication in federal courts.129
The definition of apartheid encapsulates tort liability when it is appraised in
terms of its component elements. These elements may also give rise to distinct civil
actions in tort. Nothing in international law stipulates that apartheid defined
inclusively cannot be a distinct tort or that specific practices mandated by apartheid
may not give rise to specific forms of tort liability. To illustrate, torture might
simultaneously be comprised of the elements of assault and battery. That does not
make torture less of a category of liability because the definition of torture may well
include these elements. This also applies to apartheid.
The central challenge required by customary international law is that the
wrong must first be definable. Once it is, its core elements can then be explained,
thus meeting the test of definability. Notwithstanding, the District Court
mistakenly dismisses apartheid as a “veritable cornucopia of international law
violations.” It insisted that only a single form of action is mandated by the pleading
requirements of the statute (as interpreted). We note, parenthetically, that the
District Court concedes the existence of widespread international law violations. It
seems the rejection of these violations as actionable is also based on the assumption
that they may include multiple claims of civil liability. It is for the discovery process
and other pre-trial mechanisms to determine the precision of matters that must be
adjudicated at trial.
Accordingly, we respectfully submitted that the District Court’s approach to
the definition of apartheid, its relationship to customary international law, its
relationship to the system of pleadings required in federal litigation, represent
egregious errors of construction and interpretation of both the procedure and the
substance of litigating customary international law claims in the federal courts of
the United States.
E. UNITED STATES FEDERAL COURTS ARE A PROPER FORUM TO
ADJUDICATE A CIVIL ACTION FOR THE TORT OF APARTHEID IN
INTERNATIONAL LAW
128
Forti, supra at X.
North Sea Continental Shelf Cases, 1969 I.C.J. 3 (Feb. 20, 1969) (confirming current international practice
and which parallels the practice in the federal courts).
129
26
A central concern forUnited States courtshas been exactly what role its
courts should play in the prescription and application of international law.
Historically, United States courts have contributed significantly to the development
of international law. Although the complexities of contemporary world order has
required these courts to be more self reflective in defining their appropriate role in
in adjudicating international law in United States jurisprudence. Contemporary
international law is still significantly decentralized and while the development and
prescription of rules take place at the international level, specific application and
enforcement are often matters of state practice. Issues which are peculiarly suited
for judicial dispute settlement include the rights of individuals reflected in both
United States constitutional law and in international law.
The District Court stresses the fact that the courts must be cautious about
creating private rights based on international law. There is a problem with the
District Court’s ambiguity on this matter. A court’s role is not so much to create
private rights, but to provide remedies for rights which already exist. Moreover,
international law has long permitted individuals to assert rights in appropriate
circumstances. An important issue under continuing scrutiny is whether a U.S.
domestic court is the appropriate institution to provide such relief. Domestic courts
have long played a role in the prescription and application of international law and
continue to do so. The specific concern regarding decisions based on private rights,
which might have collateral consequences, is significantly undermined by the fact
that Congress enacted the Foreign Sovereign Immunities Act in order to treat
states like private actors in matters of commerce and civil wrongs.130
Apartheid used race as a marker to determine who would dominate and who
would be subjugated. The subjugated class experienced the deprivation of all rights
commonly associated with the International Bill of Rights.131 An originalist might
freeze the statute in time to 1789, which effectively means that an international law
wrong such as slavery would be excluded from liability under the statute and a
corporation could theoretically use slave labor abroad and be immune from liability
in United States federal courts.132 With regard to caste, international law links
dissent-based discrimination to the general prohibition of state-driven practices
which rob particular classes of people of the freedom of choice. Apartheid in policy
and practice repudiates the values in the United States Bill of Rights as well as the
values in the Universal Declaration of Human Rights for which there is a
significant overlap.133
F. CONCLUSION OF AMICUS ARGUMENT
Foreign Sovereign Immunities Act of 1976, 28 U.S.C. §§ 1602-1611 (Supp. 1989).
Namibia Case, 1971 I.C.J. 16.
132 J. BORKIN, THE CRIME AND PUNISHMENT OF I.G. FARBIN (1980).
133 Elizabeth Landis, Human Rights in Southern Africa and United States Policy in Relation Thereto, in
Hearings on International Protection of Human Rights before the Subcomm. on International Organization and
Movements of the House Comm. on Foreign Affairs, 93d Cong., 1 st Sess. 946-64 (1974).
130
131
27
The District Court’s use of a heightened pleading standard that rejected
apartheid as a wrong of a tortious character under customary international law for
the purpose of the ATS is an erroneous construction of the appropriate pleading
standard which must be governed by Rule 8 of the Federal Rules of Civil Procedure.
This erroneous construction of the text led to the court’s dismissal of the complaint
on an inaccurate construction of the Sosarequirements regarding the interpretation
of the ATS. Moreover, the District Court’s general construction of the requirements
of customary international law is incompatible with practices of both the United
States and the international community’s rigorous standards governing what a rule
of customary international law actually is. The District Court also misconstrues the
proper role of the federal courts in protecting rights in civil proceedings in which
rights are universally prescribed under customary international law. More
egregiously, the District Court ignores the notorious uniformity of practice in both
international law as well as the foreign relations law of the United States which has
held in unambiguous terms that the policy and practice of apartheid is a
repudiation of the most fundamental principles of international legality and a
complete rejection of the Rule of Law which United States courts are obliged to
promote and defend.
G. SECOND AMICUS ARGUMENT: THE LANGUAGE OF THE ATS CALLS
FOR A THRESHOLD DETERMINATION OF WHAT A FEDERAL COMMON
LAW TORT IS IN VIOLATION OF THE LAW OF NATIONS.
The second argument put before the Court focused on the trial court’s use of a
strict pleading standard assumed to be characteristic of an 18 th century paradigm of
law.
In Sosa, Justice Souter first held that the Alien Tort Statute does not merely
grant jurisdiction, but it also recognizes causes of action for torts based on violations
of international law including customary international law. The Court also required
that judges exercise extreme caution when dealing with and potentially granting
recognition to such claims. Specifically, the Court required that the only permissible
claims under the ATS are those based on: 1) well-established customary
international law and/or 2) treaties that are self-executing or are otherwise ratified
by the United States and implemented by appropriate United States legislation.
The District Court was ambiguous about its reference to the formulation of
claims under the ATS which had to be in some measure respectful of “18th Century
paradigms.”134 This reference to “18th Century paradigms” creates ambiguity as to
whether the reference is specifically to the technical aspect of pleadings or to the
special techniques needed to formulate the substantive sufficiency of a customary
international law rule. We focuse on the assumption that the reference is to the
strictness of pleadings. We submit this is also an assumption adopted by the
134
In re South African Apartheid Litigation, 346 F.Supp. 2d 538, 549 (S.D.N.Y. 2004) (“Apartheid Litigation”)
quoting Sosa, 124 S. Ct. at 2762.
28
District Court. We reject reading into Sosa this assumption because it is
incompatible with the pleadings requirement of the Federal Rules of Civil
Procedure. We submit pleading such claims does not require a stricter standard of
pleadings as mandated by the District Court in dismissing the claim in the instant
case.
An appropriate interpretation and construction of the ATS may not implicitly
rely on the procedural practices that have in fact been abolished. To the extent that
the District Court reads into the pleadings, the requirement of either the “forms of
action,” or the system of “code pleading,” which uses the phrase, “causes of action,”
we respectfully draw the Court’s attention to the fact that the requirements that
these forms mandate for pleadings have been abolished by the promulgation of the
Federal Rules of Civil Procedure in 1938. The Institute brings to the attention of the
Court a central problem in the judicial interpretation, application, and enforcement
of the ATS. That problem is whether the ATS must be interpreted according to the
procedure exactly as it was created as part of the Judiciary Act of 1789 or whether
it must be construed in the light of contemporary standards of procedure.
The Institute files this brief in support of two propositions. First, the Court
should confirm that the ATS must be construed in light of contemporary standards
of procedure, particularly the rules governing Federal pleadings. Second, the Court
should establish that the judicial appraisal of the ATS should be made by
considering the factors that are applied by the international community’s appraisal
of apartheid and define its tortious character accordingly. Those factors parallel the
factors discussed in Sosa for the appraisal of apartheid as a tort in violation of the
law of nations.
H. THE LANGUAGE OF THE ATS CALLS FOR A THRESHOLD
DETERMINATION OF WHAT A FEDERAL COMMON LAW TORT IS IN
VIOLATION OF THE LAW OF NATIONS
The current text of the ATS reads as follows: “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 ATS assumes a
procedural context based on the forms of action characteristic of common law at that
time. It also assumes a jurisdictional element (subject matter jurisdiction) which is
tied to the system of pleadings.
The pleadings and the jurisdictional component shape the nature of the
action in tort under the ATS. The complex relationship between procedure
(including pleadings rules) and substance is well documented in practice.135
Procedural rules are sometimes classified as substantive to the extent that they
See Grant v. McAuliffe, 41 Cal.2d 859 (1953); Kilberg v. Northeast Airlines, Inc., 9 N.Y.2d 34 (1961); Walter
Wheeler Cook, “Substance” and “Procedure” in the Conflict of Laws, 42 YALE L.J. 333, 344 (1933); Winston P.
Nagan, Civil Process and Power: Thoughts from a Policy Oriented Perspective , 39 FLA. L. REV. 453 (1987).
135
29
shape and determine the nature of the legal action and its remedy. 136 These cases
stress the importance of a proper judicial appreciation of the nature of a legal claim
in the context of the ATS, with its jurisdictional stipulation, its implicit pleading
assumptions, and influence these characterizations have on the sufficiency of a civil
action, such as a tort in violation of the law of nations.
Appellant’s brief challenges the standard used by the District Court to
determine the sufficiency of the complaint, namely that apartheid is a tort under
international law and that it is appropriately actionable under the statute.
Apartheid Litigation, 346 F.Supp. 2d at 546-7. The appellant’s brief correctly argues
that the District Court erroneously applied a higher procedural pleading than is
mandated by Rule 8 of the Federal Rules of Civil Procedure. Id. at 547-8. The
application of this standard resulted in the Court’s erroneous dismissal of the claim.
The Institute notes that the implicit procedural standard of pleadings under the
ATS could not, at the time it was drafted, have contemplated “claims” about “civil
actions” under the Federal Rules since these rules did not exist. Therefore, there is
a specific legal question as to whether the rules of procedure and pleading, which
were in place at the time the statute was enacted, are rules which must, however
implicitly, inform the sufficiency of a complaint under the statute or whether it
must be considered in terms of the current rules of pleadings in the Federal Rules of
Civil Procedure. The Court’s reliance on a stricter standard of pleading seems to
accept implicitly the principle that somehow a different pleadings requirement is
mandated for the statute to ensure congruence with an alleged original intent—if
this implies an 18th Century paradigm—presumed to repose in the statute at the
time it was enacted.
I. THE LANGUAGE OF THE ATS SUPPORTS FINDINGS OF SUBJECT
MATTER JURISDICTION AND A CIVIL ACTION, REGARDLESS OF
WHETHER A TEXTUALIST OR A NON-TEXTUALIST CONSTRUCTION
AND INTERPRETATION IS EMPLOYED.
From a textual standpoint, it is arguable that the language of the ATS
supports findings of both subject matter jurisdiction as well as civil actions. Again,
the ATS grants jurisdiction for cases where torts are “in violation of the law of
nations.” The phrase in violation arguably creates an explicit claim for victims of
international tortfeasors in certain circumstances.
It is certainly possible to argue that such as explicit claim is not created by
the language in question. Moreover, from a non-textualist perspective, cases have
been tried in which Courts have found that a plaintiff was not required to assert an
explicit claim in order to bring a claim under the ATS.137 The claims before these
See Walker v. Armco Steel Corp., 446 U.S. 740 (1980)
Kadic v. Karadzic, 866 F.Supp. 734 (S.D.N.Y. 1994), Forti v. Suarez-Mason, 672 F. Supp. 1531 (ND Cal.
1987), Xuncax v. Gramajo, 886 F.Supp. 162 (D. Mass. 1995), Linder v. Portocarrero, 963 F.2d 332 (11th Cir.
136
137
1992).
30
courts were not predicated on the “in violation” language of the ATS. Instead, the
sufficiency of each claim was independently defined by each Court, based on the
nature of the international tort on which the claim was based. We submit that this
is the appropriate interpretation of the ATS. Were it not so, slavery—despite its
continued existence in many forms today—might not have attained its
contemporary status as universally condemned in state practice and considered to
be a criminal matter in international law since the 19 th Century. In other words, if
we took the construction of the originalists, thus freezing the statute in time to
1789, an international law wrong such as slavery would be excluded from liability
under the statute and a corporation could theoretically use slave labor abroad and
be immune from liability in United States federal Courts, if such a construction
were to prevail.
In Filartiga, the court found that to ascertain the nature of the action for
which the ATS granted subject matter jurisdiction, it was necessary for the Court to
refer to substantive principles of international law. Specifically, this Circuit Court
straightforwardly determined that the ATS provided subject matter jurisdiction and
then remanded the case for further determination with regard to the particular civil
action.138. On remand, the District Court remarked on the importance of respect for
the global community’s interests and that even if certain actions do not violate the
laws of a particular foreign state, implied claims may yet exist under international
law. This point was also made clear in Forti. The Court in Forti stated:
It is unnecessary that plaintiffs establish the existence of an
independent, express right of action [to apply the ATS], since the law
of nations clearly does not create or define civil actions, and to require
such an explicit grant under international law would effectively nullify
that portion of the statute which confers jurisdiction over tort suits
involving the law of nations... Rather, a plaintiff seeking to predicate
jurisdiction on the [ATS] need only plead a ‘tort…in violation of the
law of nations.139
Certain fundamental human rights are enforceable in a United States Court
and while not every such violation creates a juridically cognizable tort, the Forti
decision established that where the international tort is both clearly defined and,
for practically purposes, universally condemned, it is considered a self-executing
civil claim.140 Further, the U. S. State Department has contended that all U. S.
Courts must recognize certain international law violations perpetrated by a state
because “a refusal to recognize a private cause of action in these circumstances
Id. at 887-89.
Id. at 1539 (emphasis added).
140 See id. at 1540-41.
138
139
31
might seriously damage the credibility of our nation's commitment to the protection
of human rights.”141
The Filartiga decisions effectively give contemporary juridical meaning to the
ATS. Following Filartiga I and II, the United States judiciary recognized various
torts as actionable under the ATS, including genocide,142 war crimes,143 summary
execution, arbitrary detention,144 disappearance,145 cruel, inhuman or degrading
treatment,146 and wrongful death.147
J. IT IS WITHIN THE COMPETENCE OF THE FEDERAL JUDICIARY TO
DETERMINE WHAT IN FEDERAL COMMON LAW ADJUDICATION IS A
TORT AND IT IS SIMILARLY WITHIN THE COMPETENCE OF THE
JUDICIARY TO DETERMINE THE APPROPRIATE PLEADING FORM IN
WHICH THE RIGHT MIGHT BE VINDICATED
The specific language of the ATS settles the jurisdictional question of
whether an international law tort may be adjudicated in a Federal District Court.
By necessary implication in the ATS, Congress has granted the authority to provide
a remedy that is consistent with the role of an Article III Court. The specific
question raised by the majority opinion in Sosa, is whether the Congress gave the
court the additional competence to create forms of tortious liability other than the
possible forms that may have existed in 1789. One obvious response to this concern
is that Congress would have specified in the statute the specific torts in
international law that would fall within the jurisdiction of the Courts under the
ATS. Indeed, these specific international wrongs are few in number (offenses
against ambassadors, violations of safe conducts and piracy). It is important to note
that Congress did not do so. It should also be parenthetically noted that these
wrongs were partly criminal and if actionable under the statute would have tortious
as well.
There is an additional reason for Congressional silence: the definition and
development of tort law has historically not been primarily the province of the
legislature. The common law, including the law of torts, is largely a product of
judge-made law. Congress in granting this power to the federal Courts would have
been fully aware of the fact that the Courts would have to approach the question of
what a tort is in the terms of the particularity of common law adjudication and
especially the limits imposed by the forms of action in pleadings. It cannot therefore
See Memorandum for the United States, Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980), reprinted in 19
I.L.M. 585, 604 (1980) (referring specifically to causes of action arising out of circumstances of official torture)
(emphasis added).
142 Kadic, 866 F.Supp. at 734
143 Id. at 734
144 Xuncax, 886 F.Supp. at 162
145 Id. at 162.
146 Id. at 162
147 Linder, 963 F.2d at 332
141
32
be argued that the statute would involve Congress in the novel act of freezing
international law wrongs to a specific date and time. The historical development of
tort law repudiates this.
There is, moreover, a compelling inference that Congress chose not to include
specific, intentional wrongs in the ATS simply because it could easily have done so.
Indeed, it could still be done. Furthermore, Congress legislated the civil liability
component into the Alien tort statute in 1940.148 “The term civil action was
substituted for the word suits in view of Rule 2 of the Federal Rules of Civil
Procedure.”149 If there is a plausible reason why Congress neither restricted the
statute in its own text nor revised it afterwards, it may lie in the fact that Congress
fully understood the lawmaking relationship between legislation, which is molar,
and judge-made law, which is molecular. Congress was prudent to leave this matter
for the Courts. Given the expansion of the concept of a claim in the context of
federal civil litigation, federal law provides effective counter policing of the
litigation to ensure that the claims that are actually litigated meet the criteria
appropriate to the role of domestic Courts in the making of the application of law.
In appraising liability for torture in the Torture Victims Protection Act,
Congress was fully aware of Filartiga and its specific recognition of an international
tort of torture. Congress therefore had ample opportunity to abrogate the statute or
to confine it to the forms of wrongs exclusively recognized in 1789. International law
is a species of multi-state law and shares a conceptual affinity with private
international law. Private international law recognizes the interpretation,
application, and enforcement of tortious liability across state and national lines as a
routine matter.150 Although its doctrines have been more effectively developed in the
context of domestic litigation, the practice of the private international law of torts
suggests that the competence to prescribe for international torts is a competence
well within the appropriate role of the Federal Courts in the international law
environment. We submit that our effort to clarify the appropriate construction and
interpretation of the ATS provides a clearer basis for determining objectively the
nature of tort liability under customary international law under the ATS.
III.
THE HISTORICAL UNDERPINNINGS OF THE ATS YIELDS CLEAR GUIDANCE
REGARDING THE SCOPE OF ITS SPECIFIC PRESCRIPTION AND APPLICATION
IN PARTICULAR CASES
In Sosa, the Supreme Court held that ATS effectively opens the door to
certain “private causes of action for certain torts in violation of the law of nations.”
The Sosa decision made no specific reference to the mechanics of the relationship
“1. Prior law and revision: Based on title 28, U.S.C., 1940 ed., § 41(17) (Mar. 3, 1911, ch. 231, § 24, P 17, 36
Stat. 1093).
149 28 U.S.C. § 1350 fn. 1.
150 See R. WEINTRAUB, COMMENTARY ON THE CONFLICT OF LAWS (1980); Winston P. Nagan, Conflicts Theory in
Conflict: A Systematic Appraisal of Traditional and Contemporary Theories, 3 N.Y. J. INT’L & COMP. L. 343, 464
(1982).
148
33
between pleadings, procedure, and the construction of the substantive law under
the ATS. [Cite or is this the author’s opionion?]Despite the lack of any explicit
analysis, the holding in Sosa must, however, assume the existence of such a legal
relationship. Indeed, the Apartheid Litigation District Court relied on Sosa to
implicitly validate a stricter pleading standard.151 The language specifically used in
Sosa does not mandate this. The specific language reads as follows: “[W]e 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.”152 The phrase “[W]e think” is unusually speculative for the Supreme
Court. And the phrase “features of 18th Century paradigms” is unusually vague.
Indeed, the term paradigms itself makes no obvious reference to the system of
pleadings and the nature of a civil action at law as part of the 18 th Century
paradigms. The District Court quoting this language explicitly uses it to justify a
standard of pleadings implicitly characteristic of the strict forms characteristic of
the 18th Century rather than the explicit requirements of the Federal Rules of Civil
Procedure. The concept of an 18th Century law paradigm is ambiguous. It is
therefore in the public interest that this issue be clarified. The Institute seeks to
provide the Court with the relevant historical insight into the relationship between
pleadings, procedure and the construction of the substantive law under the ATS in
order to clarify precisely the pleadings standard that the Court is mandated to use
under the Federal Rules of Civil Procedure.
The Institute respectfully submits that the construction and interpretation of
the ATS in the context of the framework of an earlier system of pleadings led to the
Court’s erroneous construction of the rules of procedure because the reasoning of
the Court implicitly assumes that the theory of liability to the case is significantly
influenced by the procedural and substantive context of 1789. The District Court’s
erroneous construction of the pleadings, we submit, is based on the assumption that
the substantive law of 1789 carries with it the procedural rules of that period or is
influenced by a strict construction of the procedural rules characteristic of the forms
of pleadings, which have been abolished. In short, an approach that relies too
narrowly on a version of original intent associated with an 18 th Century paradigm,
assumed to be implicit in the ATS. We submit this is an improper approach to the
interpretation of the statute. The proper approach is to interpret the substantive
provisions of the statute exactly as required by Rule 8 and Rule 1 of the Federal
Rules of Civil Procedure.
The Institute respectfully submits that had the District Court been faithful to
the intent behind the Federal Rules of Civil Procedure Rule 1 and 8 the District
Court’s construction of the sufficiency of the claim would not have been erroneous.
Construing federal statutes enacted prior to 1938 consistent with the pleadings
151
152
Supra, note at 547.
Supra, note at 2761-62
34
required by the Federal Rules of Civil Procedure is an important matter of the
public interest and important in the context of the instant case.
A. GENERAL REMARKS ON THE RELATIONSHIP BETWEEN SUBSTANCE
AND PROCEDURE
The relationship between substance and procedure is a matter of historical
difficulty in the common law. Substantive law has developed through the rules of
procedure. The issuance of a writ was historically essential for the characterization
of a legal form of action and a remedy. The system of pleadings available to a
litigant when the ATS was enacted was the system of common law pleadings based
on the “forms of action.”153 To the extent that the forms of action required for a
pleader in 1789 influence the stricter standard of the District Court, it should be
noted that the forms of action have been abolished. The abolition of the forms of
action does not require that the statute itself be abolished by construction and
interpretation.
In Thompson v. Allstate Ins. Co., Judge John Minor Wisdom stated the
following:
Ancestor worship in the form of ritualistic pleadings has no more
disciples. The time when the slip of a sergeant’s quill pen could spell
death for a plaintiff’s cause of action is past. Under Federal Rules of
Civil Procedure, a complaint is not an anagrammatic exercise in which
the pleader must find just exactly the prescribed combination of words
and phrases.154
Similarly, in Russell v. United States, the Supreme Court quoted the Chief
Judge Clark of the Second Circuit “who speaks with special authority in procedural
matters.”155 Chief Judge Clark stated in United States v. Lamont,:
Pleading, either civil or criminal, should be a practical thing. Its
purpose is to convey information succinctly and concisely. In older days
the tendency was to defeat this purpose by over elaboration and
formalism. Now we should avoid the opposite trend, but of like
consequence, that of a formalism of generality. There seems to be some
tendency to confuse general pleadings with entire absence of statement
of claim or charge. But this is a mistake, for general pleadings, far
from omitting a claim or charge, do convey information to the
intelligent and sophisticated circle for which they are designed.156
F.W. Maitland, Equity Also: The Forms of Action at Common Law: Two Courses of Lectures, Lecture I (A.H.
Chaytor & W.J. Whittaker, eds., Cambridge University Press, 1910).
154 476 F.2d 746, 749 (5th Cir.-OLD 1973),
155 369 U.S. 749, 785 n5 (U.S. 1962)
156 236 F.2d 312, 317 (2d Cir. 1956)
153
35
To the extent that the trial court was influenced by the formulaic rigor of
common law or code style pleadings, we respectfully submit that reliance on such
sources is an error of law because the Court is governed by the pleadings required
in the Federal Rules of Civil Procedure. In short, the District Court’s stricter
standard is not mandated by Rule 8 and cannot be supported by the stricter
standards of previous systems of pleadings which have been abolished.
The pleadings standard required traditionally by the system of code
pleadings that replaced the forms of action also requires a stricter standard of
pleading. The drafters of the Federal Rules of Civil Procedure surveyed the
experience with code pleadings and determined that the stricter standards required
at the threshold of a lawsuit simply provided for legal chaos in civil proceedings.
The loose use of such terms as cause of action, evidentiary fact, ultimate fact, and
conclusions of law, developed a “compartmentalization” which proved to be a
“chimera.” In Rannels v. S.E. Nichols, Inc., Judge Aldisert stated that it was
inappropriate for the federal lower Courts to resurrect the stricter standards of code
pleadings.157 The court ruled, citing the Supreme Court in Conley v. Gibson,158, that
the Federal Rules of Civil Procedure, which had simplified pleadings, were not to be
replaced by the stricter standards of the code system.159. In Conley, the Court stated
explicitly “The Federal Rules of Civil Procedure reject the approach that pleading is
a game of skill in which one misstep by counsel may be decisive to the outcome and
accept the principle that the purpose of pleading is to facilitate a proper decision on
the merits.” The lower Court’s use of a stricter standard in the pleadings, influenced
by an attempt to determine the original intent behind the statute associated with
an 18th Century paradigm, misunderstands the principle that the earlier
approaches to procedure governing claims in the Federal Courts were abolished and
replaced by the Federal Rules of Civil Procedure. The change in the nomenclature of
pleadings from the terms form of action, cause of action, have been replaced by the
term claim, qualified by the phrase “indicating that the pleader is entitled to relief,”
appropriate to civil proceedings in the Federal Courts. The pleader is entitled to
specify the statement of a “claim upon which relief can be granted,” and we
parenthetically note, not a “form of action” or a “cause of action.” The specific
application of this insight to the ATS is that the concept of a tort in violation of the
law of nations cannot procedurally be frozen to the forms of action of 1789 or the
system of code pleadings developed in the mid 19th Century. Therefore, any
heightened standard of pleading in applying the ATS would simply be applying law
that has been abolished since 1938.
B. SUBSTANCE AND PROCEDURE AND THE APPLICATION OF THE ATS
The Institute submits that a specific clarification of the interrelationship of
substance and procedure in the context of this statute will clarify the appropriate
591 F.2d 242 (3d Cir. 1979).
355 U.S. at 47-48
159 2A Moore’s Federal Practice, Par 8.13, at 1692-93
157
158
36
standard to be used in cases pled under the ATS and will consequently serve the
public interest in bringing clarity and certainty to this area of the law in this class
of cases. We respectfully request the Court’s indulgence as we present the
background facts and the analysis for the proper interpretation of the ATS in
Federal Courts.
Erroneously using Sosa as authority, the District Court ruled that the ATS
must in large measure be interpreted in the context of the date within which it was
enacted.160 Sosa does not mandate this. Moreover, this formulation undermines and
possibly misdirects the appropriate standard of interpretation for the ATS. This
approach requires the Court to do a historical fishing expedition with regard to
either the forms of action existing in 1789, or more charitably, the system of code
pleadings that replaced the forms of action at common law. In either case, neither
the forms of action, nor 19th Century causes of action provide us with any practical
guidelines as to the meaning of the ATS. A Court is therefore confronted with a
critical question of the appropriate standard used to understand the substantive
law of the ATS in the light of its appropriate procedural context. A standard of
interpretation, which requires the Court to elucidate the procedural context of 1789,
effectually undermines the plain meaning of the statute. It is a canon of statutory
construction that if there is a means of construction that gives meaning to a statute,
it should be preferred to a canon that denudes a statute of its rational meaning.
The statute must be construed and interpreted in the context of claims in law
as they historically and currently exist in interpreting Federal Rules of Civil
Procedure Rule 8. The civil action in the Federal Rules of Civil Procedure clearly
includes claims based on customary international law as well as the law of treaties
to which the United States is a party. The development of case law under the ATS,
which has involved the recognition of certain human rights as having the character
of customary international law as well as being actionable as torts under the statute
has given Congress ample opportunity to restrict or abolish the ATS. In fact, the
statute has in other contexts been affirmed by Congress.161 Moreover, the statute
was revised in 1940 to make it consistent with the Federal Rules of Civil Procedure.
Clearly Congress ostensibly intended that there be no ambiguity with regard to the
relationship between the ATS and the Federal Rules of Civil Procedure.
C. CONCLUSION ON THE ARGUMENT RELATING TO STRICT PLEADINGS
The Institute respectfully submits that the Court’s interpretation of the
ATS’s procedural context, using a stricter pleading standard influenced by
abolished forms of pleadings, leads the Court to a misinterpretation of what the
Federal Rules of Civil Procedure requires the Courts to do in the application of
pleadings. By reading a subjective and unsubstantiated standard into the meaning
of Rule 1 and Rule 8, the Court in effect is vesting itself with a discretion
160
Supra, note at 547.
161
Torture Victims Protection Act, 28 U.S.C. § 1350
37
incompatible with the rules it is obliged to follow. This undermines the appropriate
level of judicial restraint required of the Court. We summarize our arguments as
follows: (1) The Federal Rules of Civil Procedure have never been construed to be
purely prospective; (2) Substantive law in existence prior to 1938 must be construed
rationally in the light of the present day system of pleadings that the Court is duty
bound to apply; (3) Applying the Federal Rules of Civil Procedure provides a firm
foundation for determining whether a claim based on customary international law
is one that has the properties of a civil law claim for which traditional remedies are
available; (4) Principles governing the interpretation of statutes mandate that when
one construction of a statute depreciates or minimizes it and another gives it full
rational effect, the Court is obliged to use the standard which supports and does not
undermine the text of the ATS; and (5) The ATS contains both a procedural element
and a substantive element. Assumptions about the original procedural
“requirement” must be discarded and the statute must be explicitly read in the light
of current pleading rules. Those rules may well shape the contours of the concept of
the claim in customary international law in which the pleader claims he is entitled
to relief. The rules of pleading cannot therefore be read to exclude claims based on
contemporary international law because custom may not have developed into a rule
of international law in 1789. The practice of law has been replete with the
construction of statutes prior to 1938 which have been interpreted in the light of the
contemporary assessment of what claims are assessable in law.
These points do not mean that an understanding of the history and practice
under a statute are not important to its construction, but these understandings
must take into account a current understanding of the law (including procedural
law) and contemporary practice.
The plaintiff’s won on the issue of aiding and abetting and the case was
remanded for the plaintiffs to re-plead the apartheid claim under Section 1350 of
the ATS.
D. HAVE THE COURTS RETREATED FROM THE PROMISE OF HUMAN
RIGHTS LITIGATION IN SECTION 1350 OF ATS?
In Arar v. Ashcroft,162 414 F.Supp.2d 250 (E.D. N.Y. 2006), a Syrian-born,
Canadian citizen, Maher Arar (“Arar”), brought a lawsuit against the United States
and several U.S. government officials pursuant to the Torture Victim Protection Act
(“TPVA”), 163 and the Fifth Amendment to the United States Constitution. In the
lawsuit, Arar alleges that after being detained in the United States, he was
removed to Syria for the express purpose of being interrogated under tortured.
However, the U.S. government moved to dismiss the case by asserting the “state
secrets” privilege, claiming that the reason Arar was deemed a member of Al Qaeda
and sent to Syria, instead of Canada, are “state secrets.” The government argued
162
163
414 F.Supp.2d 250 (E.D. N.Y. 2006)
28 U.S.C. § 1350
38
that litigating the matter would disclose state secrets, revealing intelligence
methods and harming national security and foreign relations. Although plaintiff
countered that his case could easily be proven without state secrets being revealed,
and even if such information were required to establish a defense, procedural
safeguards could protect such information. Even so, Judge Trager of the U.S.
District Court for the Eastern District of New York dismissed Arar’s claims against
U.S. officials for deporting him to Syria where he was tortured and arbitrarily
detained. Judge Trager found that even if such conduct violates U.S. treaty
obligations or customary international law, national security and foreign policy
prevented him from holding the officials liable for carrying out an extraordinary
rendition.
On December 12, 2006, Arar appealed and argued before the Court of
Appeals for the Second Circuit on November 9, 2007. The divided court upheld the
lower court’s dismal on political question grounds. The majority found that
adjudicating Arar’s claim would hamper national security and foreign policy, a
ruling which the dissenting judge found gives governmental officials the license to
“violate constitutional rights with virtual impunity.” The majority also found that
Arar as a foreigner, who was not formally admitted into the U.S., had no
constitutional due process rights in terms of having been denied access to a lawyer.
In a surprising move, the appellate court voted to rehear the appeal en banc.
On November 2, 2009, a divided panel of eleven judges from the Second Circuit
Court of Appeals voted in a 7-4 decision to affirm the district court’s decision. The
Court found that neither the TPVA nor the Constitution itself provides a remedy for
someone illegally seized by U.S. authorities while traveling through the United
States and sent around the world to be tortured. The court also stated that if a civil
remedy was to be granted it would have to done by Congress. Writing for the sevenjudge majority, Judge Jacobs, claimed that the TVPA did not apply because it
covered only the actions of foreign governments. Jacobs further stated that the law
did not allow Arar to sue directly under the Constitution—what the law refers to as
a Bivens claim—because “the judicial review of extraordinary rendition would
offend the separation of powers and inhibit this country’s foreign policy.” The
appellate court declined to recognize a Bivens action in this case because of the
potential exposure of state secrets and the affects on foreign policy which called for
hesitation. Dissenting Judge Parker, Jr., vehemently disagreed with the aspect of
the ruling as an explicit abdication of the judiciary’s role to check execute branch
abuses by enforcing constitutional due process guarantees. The court’s majority
opinion reflects a hesitation to render any decisions that may potentially jeopardize
national security. The Court’s hesitation is reflected in Jacob’s majority opinion
stating that “if a civil remedy in damages is to be created for harms suffered in the
context of extraordinary rendition, it must be created by Congress, which alone has
the institutional competence to set parameters, delineate safe harbors, and specify
relief.” In his dissent, Judge Guido Calabresi stated that “I believe that when the
39
history of this distinguished court is written, today’s majority decision will be
viewed with dismay.”164
It will be recalled that the Second Circuit Court of Appeal initiated the
private sector revolution in the enforcement of international human rights under
the Alien Tort Statute. The critical question is whether the manifest justification of
the majority’s decision obscures a deeper policy foundation for the rejection of the
plaintiff’s claim. If so, this would represent a significant shift in the promise of
using private law tools to effectively enforce human rights standards. The strong
dissents suggest that the matter is at this time uncertain.
Benjamin Weiser, Full Appeals Court Rejects Suit in Rendition Case, New York Times (November 2, 2009,
11:44 am); See also Arar v. Ashcroft, et al., 414 F.Supp.2d 250 (E.D. N.Y. 2006)
164
40