On 29 June 2004, the US Supreme Court delivered its decision
in Sosa v Alvarez-Machain.The Court considered the substantive meaning
and effect of the Alien Tort Claims Act [ATCA] for the
first time. The petitioner in this case, Sosa, had argued
that the Supreme Court should adopt an interpretation which
would deprive ATCA of much if not all of its contemporary relevance.
Ultimately, the decision has largely reaffirmed the pre-existing
law on ATCA. The purpose of this update is to summarise this
decision, and comment upon its ramifications for the material
in the book, particularly Chapter 2. The purpose is not to provide
a wide-ranging critique of the decision. Background
Sosa v Alvarez-Machain concerned the abduction
of one Dr Humberto Alvarez-Machain in Mexico. Dr Alvarez was
held for one day in Mexico by his captors (including US federal
agents and one Jose Francisco Sosa) before being brought across
the border into the US. Alvarez faced trial in the US for
the torture and murder of a US federal agent in Mexico; he
was acquitted. After his acquittal, Alvarez sued the US government
and Sosa for various alleged wrongs, including alleged violations
of the ATCA. The Court of Appeals for the Ninth Circuit found
that Alvarez had suffered a ‘violation’ of his
rights under the ‘law of nations’, and therefore
could claim relief under ATCA.
[3]
The relevant violation concerned his arbitrary
detention in Mexico before being transported across the border.
This period of detention lasted for less than one day. The
‘arbitrariness’ of this detention ceased once
Alvarez was brought into the US, as his arrest and detention
within the US had been authorized under US law. Sosa successfully sought certiorari
to appeal the Ninth Circuit decision. He challenged the characterisation of Alvarez's
detention as a breach of the law of nations. Furthermore,
Sosa attacked the ATCA itself by arguing that ATCA does not
provide for private causes of action. Thus, Sosa disputed
the prevailing interpretation of ATCA, which has held sway
since the Second Circuit’s seminal 1980 decision in
Filartiga v Peża-Irala, which had breathed life into the ancient
statute. Sosa submitted many arguments to justify that narrow interpretation
of ATCA. Had these arguments been accepted, ATCA
would be redundant, and the carpet would have been pulled
from many pending human rights cases in the US.
Given the wide-ranging potential ramifications of the decision,
numerous amici briefs were filed in favour of both parties,
raising further arguments in favour, or against, the continuing
viability of ATCA, which will not be elaborated upon here. The
petitioner was supported (and therefore ATCA was attacked) in
briefs from, for example, the US government, the National Foreign
Trade Council, the Washington Foundation, andthe governments
of Australia, Switzerland and the United Kingdom. The respondent
was supported (and therefore ATCA was supported) in briefs from,
for example, a large array of national and international non-governmental
organisations, as well as national and international scholars.
The majority decision
Souter J delivered
the opinion of the court. His interpretation of ATCA was joined
by O'Connor, Kennedy, Ginsburg, Stevens, and Breyer JJ. As
detailed below, Scalia J disagreed with the majority's ATCA
interpretation, and was joined in this respect by Rehnquist
CJ and Thomas J.
Souter J agreed that ATCA was in fact jurisdictional. By its
own terms, it merely:
gave
the district courts –cognizance” of certain causes of action,
and the term bespoke a grant of jurisdiction, not power to
mold substantive law”. However, Souter J did not believe that
ATCA required a further statute to give it life. That is,
another statute was not needed to provide a relevant cause
of action for the purposes of ATCA. Otherwise, ATCA would
have been ‘stillbornę as plainly no relevant statute
was enacted at the time. Rather, Souter J decided that the common
law at the time of ATCA recognised causes of action for breaches
of the law of nations. Such causes of action were confined in
1789 to only three offences: violation of
safe conducts, infringements of the rights of ambassadors,
and piracy. Of course, the law of nations has grown
enormously since 1789, for example by including international
human rights law norms.
The question arises: does the common law of 2004 sustain
causes of actions under ATCA based on contemporary interpretations
of the law of nations, rather than the considerably narrower
interpretations of 1789? In order to answer this question,
Souter J first noted that ‘the prevailing conception
of the common law has changed since 1789’. Common law is now recognised as being •made
or created’ rather than ‘found or discovered’
by judges. That is, the fiction that common law rules
are somehow embedded in the law, merely awaiting discovery
or uncovering by judges has been dispensed with. This conception
of common law accepts the fact that judge-made law is in fact
made by the judges; judges play a proactive rather than
an exploratory role in the generation of common law. In pursuance of this ‘legislative’
theory of common law, the Supreme Court in Erie R. Co v Tompkins
went so far as to deny the existence of a federal ‘general’
common law, giving rise to the birth of a new type
of federal common law. Souter J and the Scalia minority disagreed
over the qualities of post-Erie federal common law.
Given the legislative conception of common
law, Souter J accepted that the judiciary should exercise
‘restraint’ in ‘applying internationally
generated norm’ as part of the common law under the
jurisdiction conferred by ATCA. In particular, ‘a decision to create
a private right of action [by for example extending ATCA jurisdiction
beyond the three causes of action recognised in 1789] is one
better left to legislative judgment in the great majority
of cases’: ‘the general practice has been to look
for legislative guidance before exercising innovative authority
over substantive law’. Causes of action based on international
law necessarily involve exercises of considerable judicial
discretion, given the vague definition of customary international
law. No congressional mandate, beyond the enactment
of the Torture Victim Protection Act in 1991 [TVPA], has been given to federal courts 'to seek
out and define new and debatable violations of the law of
nations’.
Despite all of these arguments in favour of the exercise of
caution in extending ATCA jurisdiction beyond the three 1789
causes of action, Souter J proceeded to endorse just that. Souter
J found that federal courts are permitted, post-Erie,
to ‘derive some substantive law in a common law way’. Furthermore, the recognition of ‘the
law of nations’ within the common law has spanned over
two centuries. It would therefore ‘take some explaining
to say now that federal courts must avert their gaze entirely
from any international norm intended to protect individuals’.
Therefore, Souter J decided that the First Congress, in enacting
ATCA, intended that federal courts would ‘properly identify
some international norms as enforceable in the exercise of
[ATCA] jurisdiction’. Further:
We think it would be unreasonable to assume that the First Congress
would have expected federal courts to lose all capacity to
recognize enforceable international norms simply because the
common law might lose some metaphysical cachet on the road
to modern realism.
However, Souter J went on to stress that courts should adopt
a narrow definition of the law of nations. In particular, a
norm cannot be recognised as part of the law of nations unless
it is ‘specific’ or ‘definable’, ‘obligatory’
and ‘universal’. Thus, the Supreme Court has endorsed the
•law of nations’ test outlined in Forti v Suarez-Mason. However, it is unclear whether the
Supreme Court has adopted the Forti test to the exclusion
of other potential approaches to the definition of ‘the
law of nations’. It may be that this test was cited in
Sosa because it is the test generally adopted within
the Ninth Circuit, the Circuit from which the Sosa case
came. As noted in the Book, some courts within the Second Circuit
have adopted a different approach. Certainly, Souter J implicitly endorses the
Filartiga equation of ‘the law of nations’
with ‘customary international law’, insofar as those
norms are adequately ‘definable’, because he spends considerable time discussing
whether the violation at issue, a short period of arbitrary
detention, constitutes a violation of customary international
law. Souter J found, after citing a number of international
and domestic sources, that a period of arbitrary detention for
a period of less than 24 hours was not a violation of customary
international law, so the Ninth Circuit decision in favour of
Alvarez was reversed. The
Scalia opinion
Scalia J agreed with the Court on the outcome: that is that
the facts did not give rise to a violation of ATCA. However,
he parted company with Souter J on the issue of whether modern
federal courts were permitted, at common law, to recognise causes
of actions based on contemporary understandings of law of nations.
He felt that, in general, Erie slammed the door shut
on the creation of new causes of action by judges except in
a few discrete and defined areas, such as admiralty law. Those exceptions did not include the authority
to create private causes of action based on the law of nations.
Scalia J’s opinion goes on to delve into the policy reasons
underlying this interpretation, which are beyond the scope of
this update. It will suffice, in order for readers to sample
the flavour of the judgment, to add the following quotes from
the decision:
We Americans have a method for making the laws that are over us. We
elect representatives to two Houses of Congress, each of which
must enact the new law and present it for the approval of
a President, whom we also elect. For over two decades now
[since Filartiga], unelected federal judges have been
usurping this lawmaking power by converting what they regard
as norms of international law into American law. Today's opinion
[of Souter J for the Court] approves that process in principle
...
American law - the law made by the people's democratically
elected representatives - does not recognize a category of
activity that is so universally disapproved by other nations
that it is automatically here, and automatically gives rise
to a private action for money damages in federal court. That
simple principle is what today's decision should have announced.
Ramifications of Sosa for ATCA cases
against Corporations
The Sosa decision confirms that ATCA provides a basis
for civil suts in federal courts based upon violations of
the law of nations. The source of those causes of action is
federal common law, rather than ATCA itself. However, ATCA
provides the authority for judges to recognise causes of action
based on contemporary interpretations of the law of nations.
Those causes of action extend to wholly extraterritorial events.
The most substantial effect that Sosa may have on
ATCA litigation is that it may narrow the test for ‘the
law of nations’, given Souter J’s frequent pleas
throughout the judgment for caution in the interpretation
thereof, and the fact that the Supreme Court reversed the
Ninth Circuit’s characterisation of Alvarez’s
arrest and detention as a violation of the law of nations.
It certainly seems that ATCA decisions based on cursory conclusions
that a particular human right is a breach of the law of nations
are more vulnerable to challenge for lack of apparent ‘caution’. It may also be that courts within the Second
Circuit have improperly digressed from the Forti test
for •the law of nations’ in cases such as Wiwa v Royal Dutch Petroleum. However, as noted, it is not clear that
the court has adopted the Forti test to the exclusion
of other home-grown tests. Certainly, the Supreme Court seems
to endorse the equating of •customary international law’
with •the law of nations’, though it may be that certain
elements of custom are not sufficiently ‘definable’
to be actionable under ATCA.
Souter J did refer to
the danger that ATCA litigation could improperly intrude into
the foreign relations domain of the US government. Again, he counselled that lower courts
should exercise ‘great caution’ in cases that
‘raise risks of adverse foreign policy consequences’. He targeted the ‘South African apartheid
litigation’ as litigation that could, and possibly should,
fail on that basis.
>Of course, the Sosa decision did not concern an ATCA
action against a corporation. Souter J however referred to the
existence of ATCA actions against corporations and also the
existence of ‘private actor abuses’ without disapproval.
Finally, one may note two miscellaneous statements by Souter
J that could impact on human rights litigation. First, Souter
J noted the argument that ATCA plaintiffs should exhaust domestic
remedies in the forum in which the alleged abuses occurred
before seeking a remedy in the US. His Honour perhaps exhibited tacit support
for such a requirement in stating that the Court ‘would
certainly consider this [domestic remedies] requirement in
an appropriate case’. Second, Souter J exhibited scepticism that
28 USC ó1331 granted federal courts power to develop common
law in a similar manner to ATCA. If this scepticism eventually translates
into the ratio of a case, plaintiffs would be unable
to base causes of action on customary international law via
ó1331.
Conclusion
The Sosa decision may herald more conservative decision-making
in ATCA cases. For example, Sosa may temper the enthusiasm
with which some courts have been willing to classify alleged
violations as breaches of the law of nations. It may encourage
a greater willingness amongst courts to dismiss cases due
to doctrines of abstention such as political question, act
of state, and comity. It may prompt the adoption of a requirement
to exhaust domestic remedies in a relevant foreign forum.
On the other hand,
it may be that Sosa simply authorises ‘business
as usual’ in ongoing ATCA cases. After all, the Supreme
Court adopted the same test as the Ninth Circuit for determination
of ‘the law of nationsę: it
merely came to a different conclusion on the application of
that test. Therefore, the narrowing effect of Sosa
may be to simply deny that short-term arbitrary detention
is a breach of the law of nations. Otherwise, as wryly noted
by Scalia J, it may be that the Supreme Court has merely ‘wag[ged]
a finger at the lower courts for going too far’, and
then ‘invite[d] them to try again’.
[47]
Given that the Supreme Court reviews only a ‘tiny
fraction’ of lower court decisions, the lower federal
courts may in reality be free to resist the implicit constraints
of Souter J’s decision.
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