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 PeÏa-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 úcognizanceî of certain causes
of action, and the term bespoke a grant of jurisdiction,
not power to mold substantive lawî. 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 ‘stillbornÐ
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 ämade 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 älaw 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 äthe 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
äcustomary international law’ with äthe 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 1331 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 1331.
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 nationsÐ: 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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