Allen Engle, The Alien Tort Statute and the Torture
Victim's Protection Act: Jurisdictional Foundations and
Procedural Obstacles, 14 Willamette J. Int'l L. &
Disp. Resol. 1 (2006).
| Change Font Size
Visited Link Color
Table of Contents:
I. Introduction. 2
II. Substantive Claims.
1. Ordinary Tort Liability (Enterprise
2. The Alien Tort Statute (ATS).
a. The Limits of the ATS and Private
Claims under International Law. 9
i. Expropriations. 10
ii. Can an Environmental Tort Violate the
"Law Of Nations under the ATS?. 12
iii. Cultural Genocide?.
3. The Torture Victims Prevention Act
a. Corporate Accountability.
b. State Action/Color of Law.
4. Helms-Burton. 24
III. Universal Jurisdiction under U.S.
and International Law. 25
1. Universal Jurisdiction in
International Law. 25
a. Jurisdiction to Adjudicate, Prescribe
and Enforce. 26
i. Jurisdiction to Adjudicate.
ii. Jurisdiction to Prescribe.
iii. Jurisdiction to Enforce.
b. Relative and Absolute Universal
c. The Character of ATS Type Cases.
i. Are ATS type cases criminal or civil?.
ii. Are ATS type cases examples of
relative or absolute universal jurisdiction?.
iii. Conclusion: ATS type cases are
of relative universal jurisdiction in civil, not criminal, law and
therefore legal under international law.. 32
2. Universal Jurisdiction and Procedural
Defenses in U.S. Law. 33
a. Jurisdiction. 33
b. Exhaustion. 36
c. Comity. 36
d. Forum Non Conveniens.
e. The Act Of State Doctrine.
f. The Political Question Doctrine.
g. Immunity. 41
i. The Foreign Sovereign Immunities Act
ii. The Anti-Terrorism and Effective
Death Penalty Act (amending the FSIA). 45
h. Burdens Of Proof.
IV. Conclusion. 47
Though the United States is perceived as a
chronic "non-joiner of international human rights treaties,
several U.S. laws permit individual citizens and aliens to
prosecute overseas human rights violations in U.S. courts.
Examples include the Alien Tort Statute (ATS), 1
the Torture Victims' Protection Act (TVPA), 2
the Racketeer Influenced and Corrupt Organisations Act (RICO)
the Foreign Corrupt Practices Act (FCPA) 4
and the Cuban Liberty and Democratic Solidarity (LIBERTAD) Act
(or "Helms-Burton Act). 5
however, the allowance of such claims are tempered by the
Foreign Sovereign Immunity Act (FSIA) 6
and the Anti-terrorism and Effective Death Penalty Act
both of which limit
the availability of substantive remedies when the defendant is
a state actor. This article focuses on the interaction between
substantive human rights and their procedural limitations, and
emphasises that, while procedural limitations on private
actions under international law are significant, they can be
overcome by good pleading.
Private rights of action (tort claims)
based on universal jurisdiction *3
controversial. This is true not just in the United States, but
throughout the Western World--in part because such statutes
privatize acts that could otherwise be considered public
functions done outside of the State in question on behalf of
non-citizens. Thus, American efforts to codify these private
rights of action can be (and often are) criticized as an
example of the U.S. imposing its own unilateralist foreign
policy on an unwilling world.
Such critiques are ill founded, however,
because other States normally do not object to the
extraterritorial application of U.S. tort law. 8
In fact, apart from the unique exception of the Helms-Burton
Act--a law that exists on paper but goes un-enforced 9
has been little if any foreign opposition to America's efforts
to apply its domestic law and jurisdiction to a case when it
arises out of relative universal jurisdiction to adjudicate. 10
Though it is controversial in some arenas, international law
permits universal jurisdiction. 11
allies of the U.S. have similar laws on their books, 12
some of which go further than the American variety by invoking
universal criminal jurisdiction for torture, war crimes,
genocide, and crimes against humanity. 13
Meanwhile, U.S. statutes that utilize universal jurisdiction
merely enforce its minimum jus *4
cogens obligations 14
under international law, and impose a civil sanction on what
is often criminal misconduct.
After some examination, it becomes clear
that the primary obstacles to using private law remedies in
the United States against those who violate human rights law
do not present themselves in substantive international law;
rather, the difficulties arise from complications of domestic
U.S. procedural law. Thus, this article will first discuss
substantive claims that may be plead in the United States
under the laws mentioned above, and then proceed to address
the procedural limitations that need to be overcome for a
substantive claim to survive beyond a cursory procedural
hearing. The purpose of this article is to describe these
often case-ending procedural limitations in detail, with the
hope that judges will be free to reach substantive
dispositions on the merits of each claim, rather than being
forced to decide cases on a default procedural basis.
II. Substantive Claims
1. Ordinary Tort Liability (Enterprise
Many plaintiffs with human rights claims
can rely on the extraterritorial application of ordinary rules
of tort law to vindicate their interests--rather than rely on
"soft or even established international law--if jurisdictional
pre-requisites are met. 15
concepts in national law can be readily extended to cover
international human rights violations by merely recasting the
language involved. For example:
One might call it wrongful death. Torture? Battery, outrage,
intentional infliction of emotional distress. Pollution around
Indonesian mines or Ecuadorian fields? Nuisance, maybe
trespass, maybe strict liability. You say slave labour, I say
false imprisonment. When you mention treaty violations, I
think of negligence per se. 16
Though there are some inherent limitations,
a State's ordinary tort *5
should not be ignored as a potential basis for holding various
private actors accountable for their misfeasance and
non-feasance in the third world. For example, Domingo Castro
Alfaro (a Costa Rican employee of Standard Fruit Co.) and his
colleagues were able to sue Dow Chemical Co. and Shell Oil Co.
in Texas under ordinary tort law principles for workplace
tort-feasing multi-national enterprises can be and are
subjected to liability under ordinary tort law as well as
international human rights law. 18
There are some distinct disadvantages in
relying upon an ordinary tort regime when seeking remedies to
internationalized claims. Two such drawbacks include shorter
statutes of limitation and jurisdictional limitations. For
example, when a tort involving a foreign plaintiff and
defendant occurs in a foreign country, the U.S. will typically
not exercise jurisdiction. 19
While U.S. law is
presumed to have no extraterritorial effect, this is a
rebuttable presumption. 20
Several U. S.
statutes expand the jurisdictional reach to protect human
rights under various theories of extraterritorial
jurisdiction. However, where jurisdictional reach is
exceptionally extended, the basic requirements of jurisdiction
and procedure remain the same and the burden of proof is on
the plaintiff. 21
jurisdictional principles and procedural defenses are the same
whether the rules of ordinary tort or of international law
apply, this article uses cases applying international law to
describe the jurisdictional and procedural defenses, whether
for an ordinary tort or a tort, which can be the object of
2. The Alien Tort Statute (ATS)
The Alien Tort Statute is a jurisdictional
that was enacted as
a part of the first judiciary act of the United States in
1789. The ATS provides that: "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. 23
legislative history of the ATS is unknown, 24
it is likely that Congress may have had the fight against
or possibly prize
jurisdiction in mind. 26
This is because
universal jurisdiction over pirates (and likewise, war
criminals) has never been questioned by foreign states 27
Of course, another possibility is that it was enacted to
demonstrate to foreign powers that the new U.S. government was
in fact committed to the rule of law. Regardless of the
motivation behind its creation, it is important to note that
until it was "dusted off for the case of Filartiga v. Pena
in 1980, the ATS had been invoked only twice in its 209 year
In Filartiga the plaintiff, an alien,
successfully sued Americo Norberto Pena-Irala, the former
Inspector General of Police of Asuncion, Paraguay (who, for
jurisdictional purposes, was importantly present in the U.S.
but not a U.S. citizen). In his federally filed suit, Mr.
Filartiga claimed that the inspector had tortured his son,
Joelito Filartiga, to death while in Paraguay. 30
The essence of his cause of action was that an alien had been
the victim of a tort committed in violation of the law of
nations (i.e., torture), and as long as other jurisdictional
requirements were met, this violation gave him grounds to
claim damages in U.S. federal court under the Alien Tort
Statute. The court ultimately agreed with Mr. Filartiga,
determining that torture was indeed a violation of the law of
nations and could be used as a valid basis for an ATS claim. 31
The court held that while torture may not have been against
the law of nations at the time the ATS became the law of the
United States, international law had evolved to include
it--and as a consequence of that evolution, the *7
ATS could be applied
to claims of torture. 32
In other words, the
court concluded that the ATS grants a cause of action for
violations of the law of nations as it is today, not as it was
When defendant Pena-Irala appealed the
circuit court's decision, the U.S. Supreme Court did not grant
certiorari to hear the case. 33
Though denial of
certiorari has no binding legal effect in the U.S. federal
court system, as a practical matter it does seem to imply that
the Supreme Court did not believe the lower court misapplied
the law in such an egregious manner as to warrant use of the
Court's limited resources to rehear it. Thus, although there
was no direct "final word on the matter from the Supreme Court
at the time, Filartiga went down in human rights law history
as the first modern U.S. case to resurrect and litigate the
ATS successfully, and has further inspired litigation of a
series of similar cases. 34
In that series of litigation, however, it
became clear that there was some remaining confusion regarding
whether the ATS granted an independent substantive cause of
action for alien tort victims, or merely granted U.S. courts
the jurisdiction to hear such a claim. Given another chance to
hear an ATS case, the issue was recently decided by the U.S.
Supreme Court. 35
In that case, the
Court held that the ATS does not facially create an
independent substantive cause of action. 36
Rather, the Court found that the statute grants jurisdiction
in the United States to *8
adjudicate torts in
violation of the law of nations, 37
but only for that
limited class of tort claims, only filed by defendants who do
not hold U.S. citizenship. 38
The Supreme Court instructs that the plain
meaning of the statute indicates that the tort must be in
violation of the law of nations 39
and that the ATS
(which has subsequently been renamed the "Alien Tort Claims
Act by the Court, in an effort to end any further confusion
about its jurisdictional versus substantive nature) does not
create a domestic claim independent of international law.
Rather, it opens U.S. courts to hear substantive claims for
torts that violate the law of nations, i.e., public
international law. Depending upon which torts qualify as a
violation of the law of nations, then, this holding could
severely limit the viable use of the ATS in human rights
litigation within the U.S. Therefore, when considering the use
of the ATS in future litigation, the question the litigants
must investigate is this: what torts are also violations of
the law of nations? How far can claimants go in pushing what a
"violation of the law of nations is? Though it is a newer
violation than most on the recognized list of international
wrongs, torture is not the only widely recognized crime
against the law of nations. Genocide, waging wars of
aggression, crimes against humanity, piracy, slavery, and
probably conspiracy to commit any of these substantive
offences are also crimes against the law of nations,
especially when one takes into account the recent work of
international criminal tribunals. 40
On a more domestic
level, it is interesting to note that, in a common law system
like that of the U.S., for every intentional tort there is a
corresponding crime. Consequently, all of these crimes are
also torts and, although courts do not seriously question this
proposition, are potential grounds for legitimate ATS claims.
While common law crimes and common law intentional torts do
correspond to each other, a common law tort could only arise
out of a crime under international law if international law is
a part of the common law - which is the case in the United
States and all common law countries examined by this author.
Filartiga has since inspired at least two
dozen cases litigating ATS claims that directly address the
question of whether or not the tort *9
claimed is in
violation of international law, and even more cases where the
ATS was not the basis of the claim but was mentioned. 41
This issue is important enough that the Supreme Court has
directly addressed the ATS in at least three contemporary
cases, while refusing grants of certiorari in others. 42
For example, in the cases of Saudi Arabia v. Nelson, 43
Argentine Republic v. Amerada Hess, 44
and Sosa v.
the Supreme Court
did not question the legality of the ATS under international
law. In all three cases however (two of which are discussed in
detail infra) liability was denied.
Not only has the Supreme Court failed to
reject outright the use of the ATS to litigate claims before
U.S. courts, Congress has even expressed its approval of the
use of the ATS and extended a remedy to U.S. citizens as well
as aliens for torture and extra-judicial killing by enacting
the Torture Victims Prevention Act (TVPA). 46
The TVPA establishes that violations of international
law--specifically torture and extra-judicial killing--can be
litigated before U.S. courts by private litigants, even where
the victims are U.S. citizens. 47
a. The Limits of the ATS and Private Claims
under International Law
While most of the law of the ATS is clear,
there are some claims, which, while theoretically possible,
the Supreme Court has yet to indicate if they are supportable
under the ATS. These questionable or "exotic theories of
liability are briefly discussed here to expose the furthest
possible reach of the ATS.
Can the ATS remedy an expropriation, i.e.,
a seizure or nationalisation of property without compensation?
Is there a right under international law to just compensation
for nationalisation of property? It can be argued that U.S.
law does not recognize a right under international law to
compensation for expropriations overseas. 48
Comparatively, human rights treaties such as the European
Convention on Human Rights have recognized a right to
compensation under international law for expropriations
For example, the
cases of Loizidu v. Turkey 50
and Brumarescu v.
recognized a right
to compensation or restitution for nationalisations under the
European Convention on Human Rights. 52
In Brumarescu, the plaintiff's house was
nationalised by the Romanian government in 1950. 53
That nationalisation was wrongful in the sense that under
Romanian domestic law, the Brumarescus should have been
exempted from nationalisation. 54
The State sold the
house in 1974 to a third party, and the house eventually
passed by inheritance to the Mirescus. 55
The European court recognised the right of the Brumarescus to
Loizidu, the plaintiff claimed that the Turkish government had
wrongfully seized his property during the illegal invasion and
occupation of northern Cyprus. 57
The action taken by
the court in Loizidu--essentially holding that Turkey had
wrongly taken the property without providing appropriate
compensation under Article 50, and asking for further
submissions from the parties--can arguably be seen as a
recognition of the right to compensation for the *11
wrongful seizure of
To be fair, the holding in Brumarescu could
have been limited by the fact that the nationalisation was not
in the public interest but in the interest of private persons.
Similarly, the result in Loizidou could have been affected by
the fact that Turkey had no legal right to invade Cyprus, and
thereby violated the Charter of the United Nations. 60
The reach or international applicability of these ECHR rulings
can further be limited when considering the lead U.S. case on
expropriation, Banco Nacional de Cuba v. Sabbatino. 61
In that case, which concerned the nationalisation of foreign
assets in Cuba by the Cuban government, the United States
Supreme Court was not willing to recognise a principle of
compensation for expropriation as part of international law. 62
This was partly because the now defunct Soviet bloc clearly
did not recognise such a right, which the court relied upon in
making the case more a question of choice of law than a right
to compensation. 63
In addition, it is
important to note that Sabbatino was decided prior to the
"rediscovery of the ATS as a tool for litigation of
international crimes in U.S. courts.
The case of Bigio v. Coca Cola is a better
and more recent example of a direct attempt to use the ATS to
remedy expropriation. In Bigio, Coca Cola bought land that was
nationalized by Egypt and sought compensation for its loss. 64
As has been seen before in U.S. courts, the decision intimated
that mere expropriation--even when based on religious
discrimination--is not a violation of the law of nations, but
again, without directly saying so. 65
In the end, the
case was not decided on the question of whether an
uncompensated expropriation would be a violation of the law of
nations, but rather on the narrower issue of state action. 66
Thus, in Sabbatino and also implicitly in
Bigio, it could be said that U.S. courts did not find that
uncompensated takings constitute a violation of the law of
nations under the ATS or any other theory of law. 67
It can be further argued that those decisions are evidence
that no such principle *12
exists as a custom
of international law. However, those cases were not decided on
the basis of U.S. domestic law, but rather on the U.S. opinion
as to what "the law of nations is. 68
answering the question of what "the law of nations consists of
is essential to successfully making ATS expropriation claims
in the future. At this point, it seems that in U.S. courts
there is no right to compensation for expropriation.
Meanwhile, there does seem to be such a right according to
recent European cases--depending on the facts and
circumstances. If Loizidou and Brumarescu are not limited
either to Europe or to their facts (illegal nationalisations)
and were, despite Sabbatino and Bigio, evidence of a general
right to compensation or restitution under international law,
the question of compensation or its correct measure still
remains unanswered. 69
This is important
because if "violations of the law of nations can evolve over
time, the unsettled areas of international law present the
most promise for future viable ATS claims.
ii. Can an Environmental Tort Violate the
"Law Of Nations under the ATS?
The human rights movement strives to
protect not only procedural rights (due process), aesthetic
interests (freedom of religion), and political rights (freedom
of speech) but also substantive interests--including the right
to a clean and healthy environment. 70
clearly recognizes environmental protections 71
raises the question whether an environmental tort under
international law could also be a "violation of the law of
Unfortunately, few ATS environmental cases
have been litigated in the U.S. as yet, and of those few, this
author is not aware of any that have reached the merits. Even
still, while generally disposing of *13
claims on procedural grounds, several courts presented with
such claims have indicated (in dicta or by implication) that
an environmental tort might violate the law of nations--and
thus be the basis for a claim under the ATS. One such example
can be found in Aguinda v. Texaco, 72
where the court
noted that while "environmental torts are unlikely to be found
to violate the law of nations, it did not say that such claims
are impossible--just unlikely.
The leading ATS environmental cases are
Jota v. Texaco, 73
Aguinda v. Texaco 74
and Beanal v. Freeport McMorrant. 75
Although Beanal v.
Freeport was dismissed summarily, 76
it was not due to
the impossibility to plead an environmental claim, but for
failure to allege with sufficient specificity those facts,
which would, if true, support a court's finding of the
existence of an environmental tort in violation of the law of
plaintiff's claims were too factually vague to support any
legal argument. 78
Thus, in Jota, it
would be imprudent to exclude the possibility that a properly
plead claim for an environmental tort would have legal
just as in its
successor case, Aguinda. In that case--which was brought
before the same court that had recently remanded Jota 80
was sued in the United States for the pollution caused by its
petroleum operations in Ecuador. 81
The court promptly
dismissed it, although this time it did not dismiss for
failure to state a claim, but rather based on forum
non-conveniens grounds. 82
Once again it seems
that a procedural rather than substantive issue proved to be
death knell of the
This fact still leaves the possibility that because it did not
dismiss for failure to state a claim, then it remains arguably
possible for an environmental tort to, at some point, be the
basis of an ATS claim.
Perhaps the most famous case where an
environmental tort was asserted as the basis of an ATS claim
is Bano v. Union Carbide. 84
This complaint was
filed against the defendant due to a toxic gas leak that
killed 1,000 people. 85
earlier lead of other U.S. courts faced with environmentally
based ATS claims, the court in Bano did not reach the issue of
whether an environmental tort could violate the law of
nations. Again, the merits were left untouched for procedural
reasons: the court found that parties to the case had made
valid settlements of several of the claims under Indian law,
which explicitly precluded the ATS claim. 86
Once again the question of whether an environmentally based
violation could be the basis of an ATS claim was left
The pattern does not stop there. In Beanal
v. Freeport McMoran, 87
a gold mining
company operating in Indonesia was sued in Louisiana for an
environmental tort, specifically relating to pollution caused
by its gold mining operations in Indonesia. 88
Once again the court dismissed the case because of a lack of
specificity in the factual pleadings, and not the substance of
the claim itself. 89
This time, however,
the court took care to point out in dicta that where the
consequences of the tort remain within the territory of one
sovereign State, there is no violation of the law of nations.
In Bano, Freeport, and Aguinda the
consequences of the tort were all within the territory of one
sovereign State--and thus, according to the 5th
reasoning, were not in violation of the law of nations. This
raises the possibility that even if the courts in question had
reached the merits, they may have found for the defendants
anyway. In Freeport and Aguinda, though, the plaintiffs were
dismissed because they did not aver facts with sufficient
specificity and connect them to the relevant law. In other
words, they were dismissed for vague pleading, not for failure
to state a valid claim in the first place. But for the
procedural problems, it *15
could be concluded
that these cases stood a chance for hearing on the merits;
further, it may be that some procedurally sound environmental
ATS case may be heard in the future.
At this point, it appears to be
undetermined whether an environmental tort could be a
violation of the law of nations, and if so whether such a
violation would be sufficient to support a claim under the
ATS. Whether an environmental tort is or isn't a valid basis
for an ATS claim currently, it does seem that if such a tort
qualified as a violation of international law then it could
also qualify as the basis for a claim under the ATS in the
future. While the U.S. is unlikely to recognize them as such
in the near future, the chance that environmental torts could
become a violation of international legal standards is
reasonably high given that there are several international
treaties on maintaining and even improving the environment. 91
Per traditional rules of customary international law and as
these treaties ripen over time, the U.S. will be bound by
their terms--even as a nonsignatory, as is the case with most
of these treaties 92
--since it has yet
to formally object to any of them. To the extent international
law recognizes environmental torts an environmental tort basis
for an ATS claim would be possible.
Genocide--or killing with the "intent to
destroy, in whole or in part, a national, ethnical, racial or
religious group, as such--is clearly a crime under
international law. 93
A question that
remains unanswered is whether there is a corresponding crime
of "cultural genocide in *16
that is, targeted destruction with the intent to eliminate an
entire culture, as such. While "Cultural genocide may seem
like an exotic idea to some, it isn't so hard to imagine a
possible scenario: A Kurdish minority in country X is denied
religious freedom by the elite governing Arab majority of
country X. That minority has been subjected to chemical
attack, and has seen their monuments and cultural
manifestations systematically destroyed by the central
government. Would the Kurds in country X have a claim for the
destruction of their environment and/or cultural genocide?
What about Kurds in neighbouring country Y?
In fact, as exotic as it may seem to bring
such a claim in a U.S. court, "cultural genocide was alleged
(and rejected, due to defective pleading) in the Beanal v.
Freeport McMoran complaint. 94
While this effort
at legal recognition of cultural genocide may have failed,
human history is replete with attempts at destruction not only
of various groups of people, but also of various cultures. One
small example--albeit mild compared to government sponsored
efforts in Australia and the United States designed to
systematically assimilate and destroy native cultures--might
be the people of Quebec, 95
who for centuries
lived as second class citizens under an officially monolingual
regime. Might such linguistic repression constitute a form of
cultural genocide? Given that genocide is a serious crime
rising to the level of a jus cogens violation, 96
the answer is probably not. However, suppression of minority
language and destruction of religion, combined with other acts
of "ethnic hygiene such as forced sterilisation, forced
adoption, and confinement on reservations might lead to a
plausible claim of "cultural genocide. All of these acts have
occurred in genocidal campaigns in the past. As noted above,
many aboriginal peoples have suffered confinement on
reservations and wars of extermination. This, in combination
with linguistic repression and forced removal from the
cultural group could fairly be called cultural genocide, if
not qualify under the classic legal definition of genocide.
The question really becomes this: is cultural genocide a wrong
that rises to the level of international recognition, such
that it should qualify as a tort in violation of the law of
While Freeport does not tell us whether
cultural genocide is a tort in violation of the law of
nations, it seems that cultural genocide has some potential to
acquire the status of an internationally recognized wrong at *17
some point in the
future. In truth, few litigants have dared to bring the claim
into U.S. courts, probably based on a reasonable assumption
that such a novel complaint is doomed to failure. Nonetheless,
creative advocates may wish to try out this exotic sounding
claim by alleging the required specificity of facts and
linking those facts to legal texts and theories. As is
increasingly the case with the "newer class of international
torts--such as human trafficking and ethnic cleansing--the
more the facts and claims are alleged and discussed in court
proceedings, the more likely they are to be accepted within
the evolutionary customary international legal structure as
internationally criminal wrongs. Of course, while there is
reason to remain hopeful, it is also important to recognize
that cutting edge claims like "cultural genocide are unlikely
to succeed in the very near future. Evolution of any kind,
particularly of the international legal variety, takes time.
3. The Torture Victims Prevention Act
As mentioned above, Congress recognised,
approved and expanded the court's ruling in Filartiga by
enacting the Torture Victim Protection Act (TVPA). 97
In sum, the purpose of the TVPA is to punish extra-judicial
torture and killing. 98
As a result,
"private torture may be recognised as a violation of the TVPA
where the torture occurred "under color of law. 99
Unlike the ATS, which is limited to
jurisdiction and only concerns aliens, the TVPA does not
address jurisdiction alone 100
and creates a
cause of action in tort for U.S. citizens and aliens. 101
While its intent and function may seem clearer on its face
than the ATS, there is still *18
about whether a corporation--generally considered a legal
person under U.S. law--can be liable under the TVPA.
Determining whether or not the TVPA applies to corporations is
deeply important to human rights litigation, for the simple
reason that corporate entities are often confronted with
allegations of extreme wrongdoing and often there is no one
(or even human) person that can be held accountable for it.
The TVPA unfortunately uses the term "individual"within its
text, which tends to militate against finding that
corporations may be liable for torture. 102
While this vagueness may have been intentional or not, the
purpose of the statute is to suppress torture and could
theoretically be extended to actions of corporations in order
to achieve that goal.
Like the ATS, the TVPA requires exhaustion
of local remedies, 103
but uniquely and
specifically authorizes a generous ten-year statute of
limitations for all claims. 104
This is much
longer than most standard tort claims statutes of limitation,
which usually allow between two and three years time to file a
Despite the fact
that the ATS itself is silent as to any limitation, this ten
year statute of limitations is now applied to the ATS due to
the 2002 holding of the Third Circuit in Papa v. U.S. 106
While this may have caused a bit of uproar at the time, the
fact remains that at common law a legal claim has no time
Thus, in exact
opposition to those who believe that the ATS should be held to
the same two- or three-year limit of all other tort claims, it
could be argued that despite the holding in Papa, an ATS case
is subject to no statute of limitations. In any event, the
court held that ATS/TVPA claimants have a much longer statute
of limitations than ordinary tort litigants not only for
purposes of uniformity, but also due to the evidentiary
difficulties in such cases. 108
The ATS and TVPA
are the two principle weapons for private law claims before
U.S. courts and should comprise the "core of any such claim.
This article now looks at other claims which also have at
least theoretical potential for success but which are
nonetheless not as likely to be recognised. These claims are
presented in descending order of probability of their
acceptance by the court.
a. Corporate Accountability
Does the TVPA create a cause of action
against corporations? 109
As stated above,
the statute speaks of suits against an "individual"(the term
used in the TVPA). Unfortunately, English is an imprecise
language. Thus, rather than refer to "natural persons and
"artificial persons to indicate human and corporate persons
the law refers rather loosely to "persons, "individuals and
"corporations. This imprecision is unnecessary and the result
of poor drafting. This produces a facial ambiguity as to
whether the term "individual in the TVPA means only natural
persons or artificial persons as well. Given this ambiguity,
one should look beyond the plain meaning of the term
"individual and examine the purposes of the legislation to
determine its meaning. For instance, in enacting the Foreign
Corrupt Practices Act (FCPA), 110
the U.S. Congress
demonstrated a willingness to extend the word "individual to
control the legality of U.S. corporations operating outside of
U.S. territory. Thus, based on this information, the better
argument is that the term "individual was intended to subsume
both natural and legal persons. 111
Action/Color of Law
Generally speaking, private acts are not
punishable under international law-- and public actors are
often immune. 112
This legal "blind
spot explains why private law remedies have arisen to impute
liability either to states (FSIA) or private actors (TVPA,
ATS). However it is an open question whether 113
and to what extent the ATS or TVPA requires state action 114
to be invoked against non-state actors.
It is clear that for some violations of
international law (such as piracy) no state action is required
for the ATS to apply. 115
However, this is
not yet true of torture, which as a general rule provides that
private acts are not violations of the law of nations since
there is no state action. State action is required because,
traditionally, only states are subjects of international law.
However that rule increasingly admits of exceptions (certainly
international organisations, but also perhaps multinational
corporations, sub-state entities, and even private persons may
enjoy limited international legal personality) such that it
could be argued that even private acts in violation of
international law could trigger ATS liability. At the same
time, officially sanctioned public torture, such as occurred
in Saudi Arabia v. Nelson 116
may be subject to
immunity on the questionable distinction that while the act of
torture is illegal under international law, other states are
not obligated to remedy it. 117
In Nelson, the plaintiff worked at a
hospital in Saudi Arabia, and noted safety violations with the
oxygen system. 118
subsequently imprisoned Nelson for several weeks, beaten, and
kept him in shackles. 119
defendant in the case was the government of Saudi Arabia, the
court focused on the actions of police rather than the *21
hospital and concluded that these actions were governmental
and not commercial in nature. 120
Thus the Saudi
government was found to be immune from suit under the Foreign
Sovereign Immunity Act. 121
A recent decision of the European Court of
Human Rights (ECHR), Al-Adsani v. United Kingdom 122
is factually similar to Nelson v. Saudi Arabia. Al-Adsani, a
pilot in the Kuwaiti Air Force, was tortured by the Kuwaiti
government apparently for distributing salacious tapes of an
important sheikh. 123
The plaintiff was
not only beaten and threatened but was severely burned,
ultimately requiring treatment in Britain. 124
Aside from the gravity of his injuries, the facts of his case
parallel those of Nelson. The legal issue in Al-Adsani was the
immunity of a state (as opposed to an individual) 125
for officially sanctioned torture. 126
Citing Nelson and
Amerada Hess (among others), the ECHR found Kuwait to be
Like the case of
Sampson v. F.R.G., 128
on the tenuous distinction that while states themselves may
not violate their jus cogens obligations, those obligations do
not require states to create remedies for their breach by
other states. 129
Thus, as shocking
as it may seem, a state can grant sovereign immunity for
violations of even jus cogens norms. 130
At least in theory, however, an erga omnes norm *22
(by definition more
egregious) cannot be immunized. 131
Though a state can grant immunity to a
foreign state--and even to the officials of a foreign
government--the defense of immunity is not absolute. There is
an increasingly recognized principle of international law "aut
dedire aut judicare 132
that a state must either extradite or judge. In fact, this
principle is explicitly incorporated into the Convention
Against Torture. 133
Thus, a State
that denies jurisdiction due to immunity may still be required
to extradite the defendant to a jurisdiction where they can be
however, no State may extradite a defendant to another State,
which commits torture. 135
Returning to the ATS and TVPA, it is
important to note that because the private torturer is not
acting under state authority, there would be no violation of
the law of nations for his acts, and thus no claim for
liability under the ATS or under the TVPA. Torture by
non-state actors may create liability under the TVPA, however,
if that party has acted "under color of state authority.
Interestingly, the "color of state authority doctrine has its
roots in U.S. domestic law, 136
and how or why
its status under international law is relevant remains a
mystery. Of course, the substantive claims of the TVPA are
based on domestic U.S. legislation--but that is not the case
with the ATS, which incorporates "violations of the law of
nations into its list of possible grounds for complaint. At
any rate, the theory of liability for non-state actors acting
under color of state authority is expressly incorporated into
the text of the TVPA. 137
Under the "color
of state authority 138
actor may be said
to have acted under color of law, and thus meet the "state
action"requirement where it acts in concert with state
significant state aid. 140
Several tests have been suggested by
courts to determine whether an action falls "under the color
of state authority. 141
These include the
public function test (does the non-state actor fulfill a
public function?), 142
and the nexus
test (how close are the contacts of the state and non-state
actor?). Of course, with these tests, the closer the
cooperation between the state and non-state actor, the more
likely the finding of state action. 143
Yet another test is the "state compulsion test, which examines
whether the private non-state actor essentially was compelled
to act by the state (did the non-state actor have a choice to
act or refrain from acting?). 144
court may examine whether the action was undertaken jointly. 145
If so, there is a greater likelihood of liability for the
non-state actor. 146
The Helms-Burton Act is a U.S. law that
attempts to punish the Cuban government and grant a remedy to
expropriated property holders who lost title to their
properties in Cuba due to nationalisation. 147
Unlike the other private law remedies, the legality of
Helms-Burton is hotly contested even by allies of the United
though Helms-Burton exists on the books, it is not enforced
and as a result the issues Helms-Burton raises have yet to be
Under Helms-Burton, "trafficking in
property expropriated by the Cuban government permits seizure
of the converted assets--including treble damages, attorney's
fees and court costs. 150
Helms-Burton essentially creates a private claim against
successors in interest to the expropriated property. 151
Generally speaking the claimed property will not be found in,
nor was the expropriation committed in, the United States.
Further because Helms-Burton imposes treble damages, it is
perceived as imposing criminal sanctions. Treble damages in
tort are not recognized by civil law jurisdictions because
compensation, not punishment, is the purpose of tort law in
the civilian legal system.
This raises the question whether
is legal under
international law. 153
speaking, international law in its sources and structure
parallels civil law. Thus if treble damages are not allowed in
tort under civil law they likely would not be allowed under
public international law.
Additionally, some scholars argue that
Helms-Burton is an example of extra-territorial jurisdiction
gone too far. 154
their inquiry to pointing out the wide-ranging criticism that
Helm-Burton has caused. 155
critiques recognise a right to compensation for *25
international law, they argue that the transfer of title,
while wrongful and thus vesting a right to compensation, is
nevertheless valid as an aspect of the state's sovereignty. 156
Essentially criminalizing expropriations through the
quasi-penal sanction of treble damages clearly goes too far as
a matter of international law, which requires that the remedy
of self-help must be proportional to the injury. 157
While assessing attorney's fees and court costs would be
legitimate under international law, 158
treble damages would not because they are a penal rather than
civil remedy. The first step in normalising Helms-Burton for
application outside of U.S. territory would be to remove or
waive the treble damages provision. claims in U.S. law, this
article now considers the jurisdictional and procedural
obstacles to the enforcement of those claims.
III. Universal Jurisdiction under U.S. and International
Laws such as the ATS which provide
extra-territorial effect to private individual rights can be
legal under international law. To evaluate when this occurs
requires an examination of some basic principles of
1. Universal Jurisdiction in International
The problem presented by private rights of
action in international law is jurisdictional. To support the
claim that these private rights of action are consistent with
international law requires a brief discussion of *26
international jurisdictional principles.
a. Jurisdiction to Adjudicate, Prescribe
Private international law - known in the
United States as conflict of laws - normally distinguishes
between jurisdiction to adjudicate, 159
jurisdiction to prescribe, 160
to enforce. 161
We examine each
of these three aspects of jurisdiction in order to determine
the international legality of the U.S. creating private rights
of action under international law.
i. Jurisdiction to Adjudicate
Jurisdiction to adjudicate is the power of
a court to hear a case regardless of the law, which the court
applies (its own law, international law, or the law of a
foreign state). 162
The exercise of
jurisdiction to adjudicate represents the smallest possible
invasion to a foreign state's sovereignty, and as such is
generally not problematic. Just to determine whether the
parties belong in this court requires an exercise of
jurisdiction to adjudicate, even if the decision is that the
plaintiff must in fact go elsewhere.
ii. Jurisdiction to Prescribe
Jurisdiction to prescribe is the power of
a court to apply its own national laws to a case before it. 163
The problem here is that the exercise of jurisdiction to
prescribe by the United States in cases with connections to
foreign states or their nationals--either the parties or place
of the transaction--infringes to some extent on the
sovereignty of that foreign state.
Where there are no territorial contacts
between the act and the state, states may nevertheless have
jurisdiction to prescribe based on a theory of active
personality, passive personality, protection, or
territoriality (among others). 164
In cases of
active personality, the perpetrator is a national of the state
seeking to exercise jurisdiction. 165
In cases of
passive personality, the victim is a national of the state,
which seeks to *27
In cases of the
protective principle, extraterritorial jurisdiction is
asserted over emanations of the legal personality of a state
outside of its own territory, such as its embassies and
contentious, these principles can be the basis for the
exercise of jurisdiction to prescribe under international law.
iii. Jurisdiction to Enforce
Jurisdiction to enforce is the exercise of
the enforcement power of a state's organs--usually the
jurisdiction to enforce outside of U.S. territory is the
greatest possible invasion of another state's sovereignty that
an exercise of jurisdiction presents. Examples have included
abducting a defendant rather than extraditing him, which was
held to be an illegal exercise of jurisdiction to enforce. 169
Fortunately, such examples are rare because extradition is
b. Relative and Absolute Universal
Under what circumstances does
international law permit extraterritorial jurisdiction? The
concurring opinions in the recent decision of the
International Court of Justice in Congo v. Belgium
distinguishes between (absolute) universal jurisdiction and
universal jurisdiction properly speaking. 170
In that case Abdulaye Yerodia Ndombasi, the Congolese minister
of foreign affairs, was indicted by Belgium for war crimes
during his term of office. 171
the court proceedings his term of office ended, he raised the
affirmative defense that at the time of indictment he enjoyed
ministerial immunity. The court upheld that defense 172
to the disappointment of human rights advocates. Critiques of
this decision correctly point out that if this logic had been
followed after the Second World War the International Court of
Justice would have granted Nazi war criminals immunity for
their atrocities. 173
Several judges make
a novel distinction in separate opinions between "absolute and
"relative universal jurisdiction ("compĂ©tence universelle
and "compĂ©tence universelle par dĂ©faut). That distinction
illuminates the legality of ATS/TVPA type cases and the limits
international law imposes on them.
According to these opinions absolute
universal jurisdiction (compĂ©tence universelle par dĂ©faut)
is asserted when the state exercising jurisdiction to
prescribe has no link to the act over which jurisdiction is
where neither the act occurred nor the defendant is located in
the territory of the state, and it did not involve any of the
states own nationals, there is a "dĂ©faut (absence, default)
of the defendant and any exercise of jurisdiction is
considered universal in the widest sense of the term (i.e.
"absolute). In contrast, where there is some connection
between the act over which jurisdiction is exercised, and the
territory or nationals of the state exercising jurisdiction to
prescribe, we can speak of relative universal jurisdiction or
"compĂ©tence universelle (there is no absent defendant or
absent act). 175
The ICJ in Congo v. Belgium implies that
relative universal jurisdiction is permissible under
international law 176
and draws a
distinction between absolute universal jurisdiction and
relative universal jurisdiction. 177
It does not
determine when or whether absolute universal jurisdiction is
permissible, though the ancient example of pirates and the
modern example of war criminals indicates that in some
jurisdiction is admissible under international law. 178
Pirates, like war criminals, are hostes humani generis, 179
enemies of all mankind, and as such are subject to absolute
universal jurisdiction. 180
mass murderers and those who torture are also enemies of
mankind and as such are subject to absolute universal
violate jus cogens norms. Relative universal jurisdiction,
where the defendant is found on the territory of the aggrieved
is a lesser
infringement on another state's sovereignty than absolute
universal jurisdiction. An exercise of relative universal
jurisdiction would therefore be more likely to be seen as
consistent with a state's international obligations.
While Congo v. Belgium does not address
the issue of the permissibility of absolute universal
jurisdiction, state practice is increasingly admitting
absolute universal jurisdiction. 183
Thus, a maiore ad
universal jurisdiction is probably valid under customary
Absolute universal jurisdiction remains
somewhat controversial, particularly in criminal cases.
However in some cases, for example piracy and war crimes even
absolute criminal jurisdiction is permissible under
international law. States may legally exercise their power to
prescribe outside of U.S. territory under 1) a theory of
passive personality, wherein a state can prosecute crimes
against its nationals 2) a theory of active personality,
wherein it prosecutes its criminal nationals, or 3) under the
protective principle which permits a state to defend
emanations of its sovereignty outside of U.S. territory such
as its currency against counterfeiters. 185
While these are not the only theories *30
jurisdiction to prescribe may be legally exercised, they are
the primary examples. Absolute universal jurisdiction is less
problematic in civil cases 186
because there is
no question of the state exercising power over a life or
liberty interest but merely over a property right.
c. The Character of ATS Type Cases
i. Are ATS type cases criminal or civil?
The answer to this question helps to
determine whether they assert relative or absolute universal
jurisdiction. If they assert relative jurisdiction they are
more likely to be valid under international law. Similarly, if
they are civil and not criminal claims they will be more
likely to be valid under international law.
Some aspects of the common law of torts
seem penal to a lawyer in the civil law system particularly,
for example, punitive damages. However it is important to note
that a tort claim is initiated by a private person, not the
state. This distinction is important because, unlike criminal
suits, in tort there is no risk to the defendant of a loss of
liberty. This explains why, despite the possibility of
punitive damages, tort law is, from a common law perspective,
civil and not penal. Regarding the question of whether an ATS
type case is sustainable under international law, these
statutes are more likely to succeed as a civil claim if
punitive damages are waived or eliminated.
If an international tribunal such as the
ICJ where to determine that an ATS type case was criminal and
not civil (because of the possibility of punitive damages)
then the argument should be made that although criminal, they
are admissible as examples of relative universal jurisdiction
under the passive personality principle. However, although
this approach may be successful, the better argument is that
the ATS and TVPA are simply private civil claims and are not
criminal claims because they do not propose to imprison
The U.S. does exercise passive personality
criminal jurisdiction 187
in cases of
terrorist crimes. 188
But it does not
generally recognize passive personality jurisdiction for
ordinary torts. 189
argument that *31
the ATS and TVPA
are exercising passive personality jurisdiction is generally
not a strong one, though in the particular facts of a specific
case it may be debatable. One such example of might arise
where a U.S. citizen sues a foreign person for torture it
could be argued that the statute is asserting passive
ii. Are ATS type cases examples of
relative or absolute universal jurisdiction?
The ICJ has recently developed the
concepts of relative and absolute universal jurisdiction.
Which of these two categories the ATS falls into is a yet
unanswered question in U.S. law. Unlike relative jurisdiction,
absolute universal jurisdiction does not require territorial
presence for a state to exercise. 190
Under U.S. domestic law a defendant must
have "minimum contacts to the U.S. before the personal
jurisdiction can be exercised over a defendant. 191
In theory it could be possible to own property and transact
business within the U.S. and thus have sufficient contacts for
U.S. personal jurisdiction in rem or quasi in rem without ever
being physically present in the United States. In that case
the exercise of universal jurisdiction would be absolute. As a
practical matter, however, U.S. procedural laws restrict
jurisdiction such that one can presume that absent the
physical presence of the defendant there will be no U.S.
Therefore the ATS
is most commonly considered an example of relative universal
One could argue that the TVPA, and
possibly also the AEDPA and Helms-Burton, assert jurisdiction
under the passive personality principle. 193
Under this principle, jurisdiction is asserted based on the
nationality of the victim. The TVPA and AEDPA, unlike the ATS,
grant remedies not only to foreign nationals but also to U.S.
citizens. Although the legitimacy of passive personality
jurisdiction in international law is controversial because it
involves an extraterritorial application of a state's criminal
laws and thus infringes on other states' territorial
sovereignty: several states including Germany, France, Belgium
allow it. 195
national laws of such nations generally incorporate
international human rights conventions. 196
iii. Conclusion: ATS type cases are
examples of relative universal jurisdiction in civil, not
criminal, law and are therefore legal under international law.
The ATS, TVPA and related statutes are
more likely to be seen as civil rather than criminal and
therefore more likely to be seen as asserting relative
universal jurisdiction than absolute jurisdiction under
international law. Because this characterisation may depend on
the facts of the actual case at hand the author recommends
understanding international law in order to correctly
contextualise the facts. Though universal jurisdiction is more
contentious than passive personality jurisdiction, relative
universal jurisdiction is recognised as a permissible basis of
jurisdiction under international law. The exercise of
jurisdiction to prescribe in ATS type cases may be valid on
the basis of the passive personality principle.
Policy considerations may also support
interpreting the TVPA as an example of relative universal
jurisdiction. Arguing that the TVPA asserts absolute universal
jurisdiction might risk undermining the existing international
acceptance of relative universal jurisdiction. The TVPA is
already sufficiently controversial because it creates a
private cause of action for individuals-- traditionally not
considered subjects of international law. However, as this
article has pointed out, this generalized and arguably
outdated notion is riddled with exceptions.
The better view is that private law causes
of action in U.S law are examples of civil, not criminal law,
and assert relative universal jurisdiction to prescribe. As
such they are consistent with international law. Even as
examples of absolute jurisdiction they would be permissible as
to jus cogens claims. In decreasing strength (i.e. from an
exercise of jurisdiction most likely to be legal under
international law to an exercise of jurisdiction least likely
to be legal under international law) the claims could be
supported as absolute jurisdiction either as: a) private law
civil claims or b) as criminal claims under the passive
personality principle, *33
personality principle, or possibly even the active personality
A strong argument can be made that the
U.S. has jurisdiction to prescribe in ATS type cases, at least
as to those torts which are also violations of jus cogens,
because these U.S. laws are consistent with U.S. obligations
under customary international law. Although jus cogens
obligations do not impose an obligation on states to remedy
other state's violations of jus cogens 197
states certainly are allowed and even encouraged to enforce
jus cogens obligations. This argument may tip the scales when
the court balances competing interests to determine, for
example, whether it has jurisdiction or whether the principle
of comity should act as a bar to adjudication. Knowing that
taking jurisdiction would affirm and support U.S. jus cogens
obligations may persuade the court to hear the case.
Though there are few international
obstacles to finding U.S. jurisdiction to prescribe in these
cases there are formidable domestic procedural obstacles to
litigating these private law claims. These procedural
obstacles essentially limit the effectiveness of the statutes
to provide compensation and or restitution for a defendant's
injuries and to deter state or non-state actors. We now turn
our attention to a detailed exposition of these domestic
obstacles, which is intended to demonstrate how to overcome
them and to show why and how they should be lowered.
2. Universal Jurisdiction and Procedural
Defenses in U.S. Law
Internationally, the distinctions are
clear: states may exercise jurisdiction to adjudicate (to hear
cases before their own courts), to prescribe (to apply their
own national laws to cases adjudicated before their courts)
and jurisdiction to enforce (the exercise of executive power
to enforce judgements). Nationally, U.S. federal jurisdiction
distinguishes between subject matter and personal jurisdiction
with personal jurisdiction being able to be obtained in
personam, in rem or quasi in rem. Jurisdiction to adjudicate
under U.S. federal law is the conjunction of personal and
subject matter jurisdiction. 198
jurisdiction to adjudicate in the federal courts of the United
one must first
prove that the court has subject matter jurisdiction. 200
Examples of federal subject matter jurisdiction include
federal questions such as taxation or admiralty, or diversity
of citizenship between plaintiff and defendant (whether
between citizens of different U.S. states or between a U.S.
citizen and a non-citizen). The Alien Tort Statute and the
Foreign Sovereign Immunities Act both provide subject matter
Having established subject matter
jurisdiction the plaintiff must then prove the existence of
personal jurisdiction. Personal jurisdiction in U.S. domestic
is of three types: In rem, where the jurisdiction is obtained
to determine the title to a specific object, in personam,
which is jurisdiction to adjudicate any claim over the person,
and quasi in rem wherein a piece of property within the U.S.
owned by the defendant is attached and used as a basis to
adjudicate a personal claim against the defendant. In all
cases of personal jurisdiction minimum contacts must exist
between the defendant and the forum state. 202
In cases of personal jurisdiction quasi in
the injury may have nothing to do with the property. However
the remedy in cases of quasi in rem jurisdiction is limited to
the value of the property used as the basis of jurisdiction.
Because both in rem and quasi in rem jurisdiction are *35
respectively to the value of the property concerned 204
in personam jurisdiction is preferred by plaintiffs.
In personam jurisdiction is itself of two
types, either general or specific jurisdiction. 205
General jurisdiction arises where the defendant has systematic
and continuous contact with the particular U.S. jurisdiction.
In federal cases, the relevant jurisdiction is the United
States, and not merely one of its states. 207
Specific jurisdiction arises when the defendant does not have
systematic and continuous contacts, but rather, has merely
sufficient, minimum contacts with the U.S. jurisdiction. 208
While general jurisdiction permits any and
all claims to be litigated against the defendant, specific
jurisdiction is limited to those claims, which arise out of,
transpire in, or affect the forum. 209
Because of this,
general jurisdiction is preferable: The more connections,
whether by presence, property, or contract, the greater the
likelihood of a finding of general jurisdiction. 210
If the defendant has no contacts there will be no
These jurisdictional requirements are the
first obstacle to finding liability under the ATS. For
example, in the case of An v. Chun, 211
Young-Kae An sued (among others) General Doo-Whan Chun,
General Tae Woo Roh, and several other military leaders,
alleging they tortured his father to death. The case, though
factually similar to Filartiga, was dismissed due to a lack of
minimum contacts (i.e. no personal jurisdiction because
defendants had no property or business interests in the U.S.).
Although, defendants did visit the United States occasionally,
their visits as government employees did not trigger general
while the defendant visited the U.S. at least once on
vacation, that was not considered a sufficient "minimum
contact for *36
This is not the
only case where substantive justice was denied for an ATS
claim due to procedural reasons of domestic U.S. law. The
presence of these procedural obstacles (and the practical
limitation of reaching the assets of foreign defendants)
explains why the ATS is not as effective a remedy as it could
Jurisdictional obstacles, however, do not
always block remedies. An v. Chun should be contrasted with
Wiwa v. Royal Dutch Petroleum. In Wiwa, jurisdiction was found
over a petroleum company, which only maintained an investor
relations office in New York and traded shares on the New York
stock exchange, despite the availability of a forum in
An v. Chun may have been complicated not
merely by the political fact that Korea is a close ally of the
U.S., but also by the question of ministerial immunity.
Although it was decided based on jurisdiction, comity, or
perhaps even immunity, may have been possible defenses had the
case gone forward. Plaintiffs must remember that while the
district courts can hear ATS type cases they are under no
obligation to do so. In sum, proving personal jurisdiction and
subject matter jurisdiction are only the first obstacles to be
surmounted when making an ATS type claim.
In theory, plaintiffs making claims under
the TVPA and possibly also the ATS must first exhaust their
local remedies. In practice, however, the realities of lawless
regimes indicate that the requirement of exhaustion of foreign
remedies will not be problematic for litigants. 215
This obstacle is more theoretical than practical.
Comity is another common defense that
defendants often raise. 216
comity has been defined as "the recognition which one nation
allows within its territory to the legislative, executive or
judicial acts of another nation, 217
is a discretionary doctrine. 218 *37
In essence, the
forum jurisdiction basically decides that principles of
fairness and/or judicial economy make it more appropriate for
a foreign court to hear the case. 219
Comity also appears to have played a role
in the determination not to remedy expropriation in Banco
Nacional de Cuba v. Sabbatino, 220
And in Bigio v.
Coca Cola 221
and Wiwa v. Royal
Dutch Petroleum 222
court remanded for further evaluation as to whether the
principle of comity applied. Thus, litigants must seriously
consider the question whether comity would block their
proceeding. Since comity is "discretionary, it is difficult to
find a satisfying answer as to when comity will apply, but it
appears that it is more likely to be exercised in cases
involving allies and states friendly to the United States.
Another discretionary jurisdictional
defense is forum non-conveniens. 223
for a finding of forum non-conveniens is the existence of a
foreign forum with jurisdiction to adjudicate. 224
If such a forum exists and would not refuse the suit for
discretionary reasons, the court must then balance the
competing interests of the foreign forum against those of its
own judiciary and the interests of the parties. 225
Ordinarily the plaintiff's choice of forum will be respected,
but compelling circumstances can cause a court to reject
plaintiff's claim due to inconvenience to the court or the
defendant. Essentially the inquiry of the court is whether the
choice of forum by the plaintiff is oppressive to the
If not, and if
there are no compelling issues of judicial economy, the
plaintiff's choice of forum will be respected. Thus forum
non-conveniens is more objectively predictable than comity.
However like comity, forum non-conveniens considers the
foreign state's interests in order to reduce the likelihood of
an exercise of extra-territorial jurisdiction from injuring
U.S. foreign relations.
In Wiwa v. Royal
Dutch Petroleum, where an Anglo-Dutch company was sued in the
United States for a tort committed in Nigeria, the forum non
conveniens objection was accepted at trial but then rejected
on appeal. 228
court in Wiwa considered the substantive English law and
balanced the interests of the U.K., the U.S., Nigeria, the
plaintiff, and the defendant, in determining whether forum
non-conveniens applied. Jurisdictionally, the court pointed to
the fact that Shell is listed on the New York Stock Exchange
and that Shell organises ancillary activities in the United
States. In terms of forum non conveniens, the court pointed
out that although the trial court usually has the discretion
whether to apply it, in this case the trial court had failed
to consider two interests when balancing the interests of
plaintiff, defendant, forum and foreign jurisdictions: Namely,
the interest of foreigners legally residing in the United
States to have access to U.S. courts and remedies, and
(probably more importantly) the policy interest implicit in
federal statute law to provide foreigners a forum for
adjudicating claims of violations of the law of nations. In
other words, the U.S. commitment to the rule of law is so
important that when balancing competing interests it may tip
the balance in favor of adjudication in the United States.
In Price v. Libya, 229
the plaintiffs alleged general claims of torture and hostage
taking without adducing the specific facts necessary to
overcome the FSIA. The court remanded on the issue of torture,
noting that plaintiff could amend their claim with the
required specificity of facts. 230
The case was
remanded and ultimately Libya's defenses were rejected. 231
The court also rejected the claim of the
Libyan government to protection as a "person under the Fifth
Amendment to the U.S. Constitution. Thus forum non-conveniens,
while a potential defense, does not inevitably block a claim
under private tort law for the violation of international law.
The basic lesson to lawyers here is clear:
allege the facts needed with specificity to avoid summary
disposition. If you are arguing that the defendant has
committed torture then you must provide evidence and establish
that they are subject to immunity under the FSIA - even in
your pleadings. As Price demonstrates, this procedural
restriction must be accounted for when litigating ATS/TVPA
cases even though the *39
of forum is ordinarily granted deference making the defense of
forum non conveniens not particularly useful to defendants.
e. The Act Of State Doctrine
The act of state doctrine is another
jurisdictional defense available for those who seek to avoid
claims in U.S. courts. 232
act of state doctrine is based on notions of comity - and as
such was, and possibly still is, also a discretionary remedy.
The act of state doctrine addresses the desire to avoid
embarrassing or possibly hostile confrontations with foreign
powers. In substantive terms, the act of state doctrine arises
where the relief sought or the defense asserted requires a
court in the U.S. to declare invalid the official act of a
foreign sovereign performed in its own territory. 234
In determining whether this doctrine applies the court also
considers whether the foreign sovereign acted in public
mere commercial act (acto jure gestionis) is less likely to be
found to be an "act of state whereas a sovereign act (acto
jure impere) is much more likely to be found an act of state.
It is important to note that the act of
state doctrine is not a shield for illegal activity. An action
taken by a state official in violation of the state's laws, or
the law of nations, is not an "act of state 237
because the act is illegal. Further, because the use of the
doctrine represents a refusal of the court's usual duty to
adjudicate cases before it, judicial review of the application
of the act of state doctrine is not deferential. 238
f. The Political Question Doctrine
The political question doctrine, part of
domestic U.S. law, is another obstacle that may defeat a
plaintiff's suit. For example, in Kadic v. Karadzic, 239
Radovan Karadzic, purported head of state for the Republic of
Srpska, argued that the principle of state immunity precluded
his being tried in the United States. He also argued that his
presence in the U.S. *40
was incident to
purportedly legitimate political functions and accordingly his
trial was political rather than legal - that is, Karadzic (not
a U.S. citizen) invoked the "political question doctrine.
The trial court did not address the issue
of the constitutional rights of a non-citizen before U.S.
courts. Instead the central issue in Karadzic was
jurisdictional: under what circumstances may a foreign head of
state, being sued in the United States based on presence on
U.S. territory fall under the jurisdiction of the court. The
court answered this by evaluating whether Karadzic's actions
were of a "political nature and therefore better left to a
political rather than the judicial branch. The court found
that Karadzic's presence on the United States territory,
unless transiting to or from or within the United Nation's was
a valid basis for jurisdiction. 240
The court granted
that Srpska might be a de facto state, but pointed out that
because Srpska was not recognised de jure, Karadzic could not
be considered immune as head of state of a recognised
government friendly to the United States.
It is important to note that while the
political question doctrine prevents the court from deciding
questions, which are not in fact judicial but rather
political, that is not to say that the court cannot decide a
controversial case where reasonable minds may differ. The
political question doctrine concerns political questions not
political cases. 241
When is a case considered a political
question? As in many other areas of American law, no hard and
fast rule exists, however the Supreme Court in Baker v. Carr
provided a number of factors that are used to answer this
commitment of the issue to a coordinate branch of government
(i.e. the legislature or executive) will be strong evidence
that the question is political rather than judicial. Secondly,
an absence of judicially manageable standards or the
impossibility of deciding the case without also making a
policy determination can indicate that the issue is in fact a
political question. Additionally, a finding that the case
requires unquestioning adherence to a political decision
already made or that the court's decision risks potential
embarrassment by creating multiple conflicting pronouncements
from different branches of government will weigh in *41
favour of a finding
of a political question. The political question doctrine,
unlike comity and perhaps the act of state doctrine, is not
discretionary: rather it is founded on separation of powers.
There were political overtones to the case
of Kadic v. Karadzic. In political terms, there were claims of
genocide; in legal terms the defendant claimed to be the head
of state of Srpska, and though Srpska was not recognised de
jure it had several attributes of statehood, such as
territory, population, and functioning government, and may
even have had some de facto recognition. Despite these factual
and legal questions (whether there was a genocide; whether
Srpska had de facto recognition) no political question was
found in Kadic v. Karadzic. 243
primarily because the court evaluated the factors listed above
and found that that these particular issues were not the task
of another branch of the U.S. government. 244
We can thus conclude the following: while
there are real domestic procedural obstacles to claims under
the ATS and related claims, notably forum non conveniens and
comity, the political question doctrine does not present an
insurmountable obstacle to plaintiffs. The grant of immunity,
in contrast, may well present the most serious obstacle to
litigants and is the last procedural obstacle, which we
explore in depth.
Immunity is of two types: immunity of the
state itself, sovereign immunity, and immunity of the state's
agents, official immunity. Official immunity is also of two
types, absolute or relative. As was earlier mentioned,
ministers and heads of state enjoy absolute immunity during
their terms of office 245
immunity for their official *42
acts after their
term is complete (i.e. Congo v. Belgium, ICJ). 246
Official Immunity is not a valid defense where the act was
illegal under the law of the state. Thus in Filartiga v.
where a foreign
government official tortured and murdered people outside of
his governmental role, that official could not claim immunity
a priori because torture is illegal under international law
and a violation of jus cogens - and a fortiori because the
foreign domestic law clearly stated that torture is illegal. 248
prior to the FSIA was found in principles of grace and comity,
not the Constitution. 249
In theory comity
could allow courts to "duck hard issues, and in practice this
sometimes still occurs. In Sampson v. F.R.G., Sampson, who had
been interned in a concentration camp and forced to work
during World War II, sued Germany and the Conference on Jewish
Material Claims Against Germany, Inc. for compensation.
Germany was held to be immune under the FSIA. Sampson, a pro
se litigant, and an amicus brief argued for an implied waiver
of immunity for acts in violation of jus cogens, but the court
held that there is no implied waiver of immunity under the
FSIA for acts in violation of jus cogens. 250
The court reasoned that while no state may violate a jus
cogens norm, no state is obliged to remedy such violations.
This tenuous and questionable distinction belies the maxim
"every right, when withheld, must have a remedy. 251
One consequence is that plaintiffs must understand there is no
obligation on the part of the United States to hear a claim
under the ATS or TVPA.
The court in Sampson noted the immunity of
a foreign state prior to the enactment of the FSIA in 1952 was
not founded on the Constitution. This implies that comity was
one justification for the immunity of Germany. The court did
not reach the argument whether claims for acts prior to 1952
would have been automatically immune, but implies that would
be the case.
The distinction between not violating jus
cogens and having the right not to remedy violations of jus
cogens can be defended on *43
grounds, particularly because of the international rule "aut
dedire aut judicare which is the idea that states have a duty
to extradite or punish those who violate jus cogens. Further,
ATS and TVPA cases are, after all, exercises of jurisdiction
outside of U.S. borders. But the approach taken by the court
in Sampson undermines the force of jus cogens and thus reduces
stability in the international system to the detriment of long
term U.S. interests. Further, it ignores the common law maxim:
"For every right there is a remedy . 252
What use is Filartiga? One obvious
application would be the war on drugs - whether in Latin
America or South Asia. If, for example, a drug "baron tortured
persons and his henchmen were the only effective government in
the region, then combining Filartiga v. Pena Irala with Kadic
v. Karadzic leads to the conclusion that the "baron and his
henchmen could indeed be tried in the United States and their
fortune distributed to compensate their victims and the
Whether defendants could be tried in
absentia is outside the scope of this paper, however it is
worth pointing out that one difficulty in these cases is
securing the defendant's presence before a U.S court.
Abduction of defendants is clearly illegal under international
law. However, the local government, not the abductee, holds
the remedy for abduction. Though in Alvarez Machain, 253
and Eichmann, 254
protest, in Argoud, 255
and Noriega 256
the sovereign did not complain when foreign powers kidnapped
undesirable persons resident on their soil for trial outside
of U.S. territory. Furthermore, protests by Mexico in
Alvarez-Machain v. Sosa regarding an illegal abduction did not
stop the United States from taking jurisdiction.
However extradited, perpetrators still
have legal rights. Although official immunity is no defense as
to acts prior to or following one's office, it does apply to
heads of state during their tenure. This explains why it is
difficult to try foreign heads of state such as Ariel Sharon 257
Agosto Pinochet. 258
Official immunity did not however prevent trial of Manuel
While there is an
obligation under international law to respect the immunity of
heads of state and ministers during their term of office,
after their term of office has expired, any immunity to the
acts of state officials, acts prior to their term of office,
and even perhaps as to unofficial acts during their term of
office, is granted at the discretion of the jurisdiction
trying the case. Noriega, like Eichmann, does however raise
the question of how far one sovereign can invade the rights of
another sovereign to extradite the accused. That question is
discussed infra. of the state's agents, private law claims may
be blocked by the sovereign immunity of the state itself. The
general rule both within the U.S. and internationally is that
the state is immune for its sovereign acts (acto jure impere)
but not for its commercial acts (acto jure gestionis). This
distinction is reflected in U.S. national law in the Foreign
Sovereign Immunities Act (infra). For example, when a Liberian
(neutral) vessel outside the zone of exclusion was attacked by
the Argentine air force during the Falklands war, with
resulting property loss, there was no liability under the ATS
due to the sovereign immunity of the Argentine government for
its sovereign act. 260
We now discuss
the FSIA at length because it is a key procedural aspect of
extra-territorial jurisdiction of U.S. courts.
i. The Foreign SovereignImmunities Act
The Foreign Sovereign Immunities Act, like
the ATS, is a jurisdictional act. 261
The FSIA is the
only way to obtain jurisdiction in the United States over a
foreign sovereign. 262
While the general
rule of the FSIA is that the foreign state is immune, 263
there are several exceptions which can be summarised as either
based on (1) waivers of immunity or (2) commercial acts.
(1) Waivers of
immunity: The FSIA permits a suit against the state where the
state has waived its liability. 264
Waiver may be
implied, but implied waivers are strictly construed against
the plaintiff. For example, *45
the case of Sampson
v. F.R.G. determined that there is no implied waiver of
immunity under the FSIA merely because the act was a violation
of jus cogens. 265
Other evidence to
imply a waiver must be adduced. 266
For example, mere
declarations by Germany of a desire to compensate compulsory
labourers were not sufficient to implicitly waive Germany's
sovereign immunity. 267
(2) Commercial acts: The FSIA also
provides for liability for purely commercial acts 268
which internationally are termed acto jure gestiones, although
the statute uses the term "commercial acts and does not rely
on the (internationally recognized) Latin term. Claims are
permitted where a tortious act either occurred in the United
States or has direct effects in the United States. 269
Mere financial effects may not be sufficient to support a
finding of "direct effects for the FSIA. 270
The FSIA places the burden of proof on the
defendant state to demonstrate that it is immune, 271
but places a burden of production on the plaintiff to
demonstrate that one of the exceptions to the general rule of
immunity applies. 272
ii. The Anti-Terrorism and Effective Death
Penalty Act 273
The Anti-terrorism and Effective Death
Penalty Act (AEDPA) amended the FSIA to permit claims against
states, which are considered by the U.S. to be sponsors of
state terrorism. 274
It creates a
privately enforceable cause of action in tort in cases of
extra-judicial killing and *46
Thus "foreign states that have been designated as state
sponsors of terrorism are denied immunity from damage actions
for personal injury or death resulting from aircraft sabotage.
The victim must be a United States national 277
and the tort must not have occurred in the territory of the
foreign state. 278
controversy as to whether the AEDPA has retroactive effect on
pending cases, which began prior to and ended after the
enactment of the AEDPA. 279
The obvious use of the AEDPA is against
air pirates or hijackers. Thus the relatives of the victims of
the Lockerbie disaster (civilian aircraft Pan Am 103 exploded
in mid-flight over Scotland and Libya was accused of funding
terrorists) used the AEDPA in Rein v. Libya to sue the
government of Libya (no disposition on the merits; remanded to
amend complaint and for further proceedings, where litigation
continues in the U.K 280
and before the
world court 281
However the AEDPA may be a violation of
international law because of the doctrine of sovereign
equality. Sovereign equality holds that "one state may not
impose its sovereign will upon another sovereign state 282
and this principle could be a basis for objection to the AEDPA
under international law. 283
It is also important to briefly consider
burdens of proof as to these procedural issues since in weaker
cases it may be an obstacle that dismisses the claim before
reaching the substantive merits.
Burdens of proof resolve doubtful cases
and thus have a great practical importance. A brief list of
relevant burdens of proof under the *47
various claims and
1) The burden of
proof that the plaintiff has exhausted all remedies is on the
defendant, which underscores the almost perfunctory character
2) The defendant must generally prove any
immunity they assert. 284
states under the FSIA are presumed immune, the state Actually
must prove that no exception to sovereign immunity applies.
3) The plaintiff bears the burden of
proving that both subject matter and personal jurisdiction
4) The party asserting the applicability
of the act of state doctrine must also bear the burden of
proof as to its applicability. 286
Thus the burden of proof to some extent
reduces the procedural obstacles facing plaintiffs in the
private law actions.
As we have seen there are a number of
procedural obstacles to litigating claims under the Alien Tort
Statute and Torture Victims Protection Act that litigators
must take seriously if they are to have a successful claim.
These obstacles often preclude liability (Sampson v. F.R.G.;
Beanal v. Freeport McMoran; Byung Wha An v. Doo-Hwan Chun;
Bigio v. Coca Cola). Sometimes they lead to remand for further
litigation (Wiwa v. Royal Dutch Petroleum; Doe v. Unocal),
however, sometimes they do not prevent litigation of the
merits (Filartiga v. Pena Irala; Kadic v. Karadzic; Estate of
Ferdinand Marcos 287
). The fact that
these procedural obstacles are also fatal in related
international tort cases (e.g. Banco Nacional de Cuba v.
Sabbatino; Bano v. Union Carbide) 288
winning cases are the exception, not the rule.
It is fair to say that private law
remedies to international torts are therefore in their
infancy. They are, however, one response to the failure of the
Westphalian state system 289
which appears to
be in the process of *48
being replaced by a
global multilateral trading system where non-state actors such
as non-governmental organisations (NGOs), 290
multinational corporations (MNCs) combined with the growing
trend towards institutionalisation of world governance via
courts, and international organisations such as the U.N. will
play an ever-greater role.
Given that violence still plagues the as
yet unfinished transition into a post-Westphalian system,
these remedies will continue to be necessary, hopefully will
be strengthened--and definitely should be.
a1. Professor of Law,
University of Tartu, Estonia. J.D., St. Louis University School
of Law; D.E.A., Universite Paris X (ThĂ©orie du Droit); D.E.A.,
Universite Paris II (Droit Fiscal); LL.M.Eur., Universitat
Bremen, Germany; Dr.Iur, Universitat Bremen, Germany. Prof.
Engle has taught courses on United States tort law and
international human rights law at the Universitat Bremen. His
research interests are corporate law, human rights, and legal
theory, and as a periodic contributor to both this journal and
Willamette Law Review over the last several years (see, e.g.,
Eric Allen Engle, Alvarez-Machain v. United States and
Alvarez-Machain v. Sosa: The Brooding Omnipresence of Natural
Law, 13 Willamette J. Int'l L. & Dispute Res. 149 (2005)),
the staff of WJILDR would like to thank Dr. Engle for all of his
kind patience, cooperation, and valuable additions to the
U.S.C. § 1350 (2006).
2. Pub. L. No. 102-256,
106 Stat. 73 (1992).
U.S.C. §§ 1961-1968 (2006).
4. See 15
U.S.C. § 78(m) (2005); 15 U.S.C. §§ 78(dd)(1)-(3) (2005);
and 15 U.S.C. § 78(ff) (2005).
L. No. 104-114, 110 Stat. 785 (1996).
U.S.C. §§ 1602-1611 (2005).
U.S.C. § 1605 (a)(7) (2002).
8. France, Spain,
Greece, and Israel all provide extraterritorial penal remedies
for cases that would be litigated in the U.S. under the ATS or
TVPA. See, e.g., Beth
Stephens, Translating Filartiga: A Comparative And
International Law Analysis Of Domestic Remedies For
International Human Rights Violations, 27 Yale J. Int'l L. 1,
1-27, 57 (2002).
9. Sistema Economico
Latinoamericano, Follow-up Report on the Application of the
Helms-Burton Law During the Year 2005, (Nov. 23, 2005), http://www.sela.org/public_html/AA2K5/ING/consejo/Di16.pdf
(last visited **
May 16, 2006).
10. Jurisdiction to
adjudicate is the power of a court to legally hear an issue. It
is possible for a court to have jurisdiction to adjudicate but
not jurisdiction to prescribe. Jurisdiction to enforce is the
most invasive act of jurisdiction, while jurisdiction to
adjudicate is the least invasive. See, e.g., Alfred
P. Rubin, Is International Criminal Law "Universal ?, 2001 U.
Chi. Legal F. 351, 358-59 (2001).
11. See Jon
B. Jordan, Universal Jurisdiction In A Dangerous World: A
Weapon For All Nations Against International Crime, 9 MSU-DCL
J. Int'l L. 1, 2 (2000) (arguing that universal
jurisdiction is an accepted norm of international law); But see
Rubin, supra note 10, at 366 (arguing that jurisdiction to
enforce has not expanded).
12. See Eric Allen
Engle, Alien Torts in Europe?: Human Rights and Tort in European
Law, Zentrum Fur Europaische Rechtspolitik (Feb. 2005), http://
(last visited **
May 17, 2006).
13. See, e.g., Loi
Relative Ă la rĂ©pression des infractions graves aux
Conventions de GenĂšve du 12 aout 1949 aux Protocoles I et II du
8 juin 1977 [Law relating to the suppression of grave violations
of the Geneva Conventions of August 12, 1949 and Protocols I and
II of June 8, 1977 (Jun 16, 1993, amended in 1999) (Belgium).
This Belgian law is the most famous example of an exertion of
universal criminal jurisdiction, though it was severely limited
in scope in 2003. France and Spain also have similar laws
asserting universal criminal jurisdiction [hereinafter Belgian
14. As recognized in
American and international law, a jus cogens norm "'is a norm
accepted and recognized by the international community of states
as a whole as a norm from which no derogation is permitted and
which can be modified only by a subsequent norm of general
international law having the same character.' See Siderman de
Blake v. Republic of Argentina, 965
F.2d 699, 714 (9th Cir. 1992) (quoting Vienna Convention
on the Law of Treaties, art. 53, May 23, 1969, 1155 U.N.T.S.
332, 8 I.L.M. 679.
15. Anita Bernstein,
Conjoining International Human Rights Law with Enterprise
Liability for Accidents, 40 Washburn L. J. 382, 401 (2001).
16. Id. at 384.
17. Dow Chemical Co. v.
S.W.2d 674, 675 (Tex. 1990).
18. Bernstein, supra
note 15, at 406.
19. Although there is a
presumption that Congress does not intend a statute to apply to
conduct outside the territorial jurisdiction of the United
States, that presumption can be overcome when Congress clearly
expresses its intent to do so. See Foley Bros. v. Filardo, 336
U.S. 281, 285 (1949); and Sale v. Haitian Ctrs. Council,
U.S. 155, 188 (1993).
20. Foley Bros., 336
U.S. at 281; Sale, 509 U.S. at 188.
21. Lew v. Moss, 797
F.2d 747, 751 (9th Cir. 1986) (explaining that plaintiff
bears the burden of proof to establish that jurisdiction exists
at the time of filing).
v. Pena-Irala, 630 F.2d 876, 878 (2d Cir. 1980)
[hereinafter Filartiga II].
U.S.C. § 1350.
24. See generally Eric
Allen Engle, Alvarez-Machain v. United States and
Alvarez-Machain v. Sosa: The Brooding Omnipresence of Natural
Law, 13 Willamette J. Int'l L. & Disp. Resol. 149 (2005),
for an extended inquiry into the legislative roots of the ATS in
the writings of Coke and Blackstone, as well as parallel British
Const. art. I, § 8, cl. 10 ("The Congress shall have
Power... To define and punish Piracies and Felonies committed on
the high Seas, and Offences against the Law of Nations).
26. Al Odah
v. U.S, 321 F.3d 1134, 1148 (D.C. Cir. 2003).
27. See, e.g., Kenneth
Roth, The Case For Universal Jurisdiction, Foreign Affairs,
Sept.-Oct. 2001, at 150.
28. Filartiga II, 630
F.2d at 879.
29. See O'Reilly De
Camara v. Brooke, 209
U.S. 45 (1908) (denying ATS claim for expropriation of a
personal monopoly right made against the State, with Court
indicating personal liability of defendant might be invocable);
Claflin v. Houseman, 93
U.S. 130 (1876) (finding ATS jurisdiction concurrent with
state jurisdiction in dicta); and see Atkins v. Fibre
Disintegrating Co., 85
U.S. 272 (1873) (concerning federal jurisdiction for an
attachment in an admiralty case, but only addressing the issue
30. Filartiga II, 630
F.2d at 878.
31. Id. at 878.
32. Id. at 881.
33. Filartiga v.
Pena-Irala, 442 U.S. 901 (1979) [hereinafter Filartiga I].
34. There are literally
dozens of ATS cases that have reached the appellate level or
higher. Among the cases mentioned in this article are: Doe I v.
Unocal Corp., 395
F.3d 932 (9th Cir. 2002); Sampson v. F.R.G., 250 F.3d 1145
(7th Cir. 2001); Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88
(2d Cir. 2000); and Argentine Republic v. Amareda Hess Shipping
U.S. 428 (1989).
35. See Wiwa, 226 F.3d
at 105 n.12 ("In arguing for this principle, they assume that
the law of nations necessarily provides the substantive
standards for evaluating claims brought under the ATS in
situations where the underlying claims involve human rights
abuses. While they may well be right that such a principle is
implicit in the ATS, the federal courts have never definitively
resolved this choice-of-law question.).
36. Wiwa, 226 F.3d at
105 n.12. Compare Xuncax v. Gramajo, 886
F. Supp. 160, 180-83 (holding that international law
provides substantive law for ATS cases), with Tel-Oren v.
Libyan Arab Republic, 726 F.2d at 777, 781-82 (D.C. Cir. 1984)
(Edwards, J., concurring) (suggesting that, while international
law triggers jurisdiction under ATS, tort laws of forum state
might provide substantive causes of action), and Estate of
Ferdinand Marcos, 978
F.2d 493 at 503 (9th Cir. 1992) (approving district court
procedure that based jurisdiction on international law but
applied tort law of state where underlying events occurred); see
also Filartiga II, 630 F.2d at 889 (holding that ATS establishes
cause of action for violations of international law but
requiring the district court to perform a traditional
choice-of-law analysis to determine whether international law,
law of forum state, or law of state where events occurred should
provide substantive law in such an action).
U.S.C. § 1350 (2000).
U.S.C. § 1350 (2000).
40. See eg., Control
Council Law No. 10, Punishment of Persons Guilty of War Crimes,
Crimes Against Peace and Against Humanity, December 20, 1945, 3
Official Gazette Control Council for Germany 50-55 (1946)
(defining Crimes against Peace, War Crimes, and Crimes against
Humanity in Art. II, §1(a),(b) and (c) respectively).
41. Some of the most
recent ATS cases include Flores v. Southern Peru Copper Corp., 343
F.3d 140 (2d Cir. 2003); Alvarez-Machain v. U.S., 331
F.3d 604 (9th Cir. 2003); Deutsch v. Turner Corp., 317
F.3d 1005, (9th Cir. 2003); City of Charleston v. A
Fisherman's Best, Inc., 310
F.3d 155 (4th Cir. 2002); and Doe I v. Unocal Corp., 395
F.3d 932 (9th Cir. 2002).
42. See, e.g. Kadic v.
F.3d 232 (2d Cir. 1995), cert. denied, 518
U.S. 1005 (1996), and Filartiga v. Pena-Irala, 630
F.2d 876 (2d Cir. 1980).
Arabia v. Nelson, 507 U.S. 349 (1993) (granting no remedy
to U.S. victim of alleged foreign police abuse due to sovereign
immunity afforded by the Foreign Sovereign Immunities Act. No
finding of commercial exception where purported victim was
employed by state run hospital).
44. Argentine Republic
v. Amareda Hess Shipping Corp., 488
U.S. 428 (1989) (finding no viable remedy for Argentina's
aerial attack on plaintiff's neutral ship, which was outside the
zone of hostilities during Falklands/Malvinas War, due to
45. Sosa v.
Alvarez-Machain, 542 U.S. 692, (2004).
46. See TVPA, supra at
47. Id. § 2
(establishing a civil cause of action for "an individual
regardless of nationality).
48. See Banco Nacional
de Cuba v. Sabbatino, 376
U.S. 398 (1964) (noting, however, that "There is, of
course, authority, in international judicial and arbitral
decisions, in the expressions of national governments, and among
commentators for the view that a taking is improper under
international law if it is not for a public purpose, is
discriminatory, or is without provision for prompt, adequate,
and effective compensation. However, Communist countries,
although they have in fact provided a degree of compensation
after diplomatic efforts, commonly recognize no obligation on
the part of the taking country.); and Tachiona v. Mugabe, 234
F.Supp.2d 401 (S.D.N.Y. 2002).
49. European Convention
on Human Rights, art. 1, Nov. 4, 1950, 213 U.N.T.S. 221, ETS 5
("Every natural or legal person is entitled to the peaceful
enjoyment of his possessions.).
v. Turkey, 1996-VI Eur.
Ct. H.R. 2216 (1996).
v. Romania, 1999-VII Eur.
Ct. H.R. 201 (1999).
52. But see Sabbatino,
376 U.S. 398.
1999-VII Eur. Ct. H.R. at 209.
54. Id. at 210.
55. Id. at 209.
56. Id. at 210.
57. Loizidou, 1996-VI
Eur. Ct. H.R. at 2216.
1999-VII Eur. Ct. H.R. at 209.
60. Loizidou, 1996-VI
Eur. Ct. H.R. 2216, ¶ 13.
61. See Sabbatino, 376
62. Id. at 429.
v. Coca-Cola, 239 F.3d 440 (2d. Cir. 2000).
65. Id. at 448. ("If a
plaintiff does not allege conduct that supports private
liability under international law, he or she must plead that the
conduct was 'committed by state officials or under color of
67. See Sabbatino, 376
U.S. 398; and see Bigio, 239
68. Filartiga II, at
887-88; Bigio, 239 F.3d at 447.
69. See. e.g.
Brumarescu, 1999-VII Eur.
Ct. H.R. 201; Loizidou, 1996-VI Eur.
Ct. H.R. 2216; and Sabbatino, 376
70. See, e.g., Vienna
Convention for the Protection of the Ozone Layer, pmbl.,
Mar. 22, 1985, T.I.A.S. No. 11,097, 1513 U.N.T.S. 324, amended
by Montreal Protocol on Substances that Deplete the Ozone Layer,
Sept. 16, 1987, art. 5, 1522 U.N.T.S. 29, 26 I.L.M. 1550. See
On The Protection And Use Of Transboundary Watercourses And
International Lakes, Mar. 17, 1992, 1936 U.N.T.S. 269, 31
71. See Paul
G. Harris, Common But Differentiated Responsibility: The Kyoto
Protocol And United States Policy, 7 N.Y.U. Envt'l L.J. 27
(1999). See also Convention on Biological Diversity, art.
20(4), June 5, 1992, 1760 U.N.T.S.143, 31 I.L.M. 818 (1992);
United Nations Conference on Environment and Development:
Frame-work Convention on Climate Change, May 9, 1992, art. 2,
1771 U.N.T.S. 107, 31 I.L.M. 849; Kyoto Protocol to the United
Nations Framework Convention on Climate Change, Dec. 10, 1997, U.N.
Doc. FCCC/CP/1997/7/Add., 137 I.L.M. 22.
72. Aguinda v. Texaco,
303 F.3d. 470, 476 (2d Cir. 2002).
73. Jota v. Texaco,157
F.3d 153, 155-56 (2d Cir. 1998).
74. Aguinda, 303
F.3d 161 (5th Cir. 1999).
76. Id. at 168.
77. Id. ("not only did
the court give Beanal several opportunities to amend his
complaint to conform with the minimum requisites as set forth in
the federal rules, the court also conscientiously provided
Beanal with a road-map as to how to amend his complaint to
survive a motion to dismiss assuming that Beanal could marshal
facts sufficient to comply with the federal rules. Nevertheless,
Beanal was unable to put before the court a complaint that met
minimum pleading requirements under the federal rules.).
Giegerich, Extraterritorialer Menschenrechtsschutz durch U.S.
Gerichte: Sachwalterschaft fuer die Internationale
Gemeinschaft oder judizieller Imperialismus?, in Menscheit
und Menschenrechte: Probleme der Univalisierung und
Institutionalisierung 159 (Eckart Klein & Christoph Menke
(eds., 2001) ("It cannot be precluded that, in the future,
environmental pollution by multinational concerns which
threatens the basic preconditions for life in entire regions,
especially for indigenous peoples, will be considered a 'tort...
committed in violation of the law of nations' under the ATS.).
80. See Jota, 157
F.3d 470 (2d Cir. 2002).
82. See Aguinda, 303
F.3d 120 (2d Cir. 2001).
87. Beanal v. Freeport
F.3d 161 (5th. Cir. 1999).
89. Id. at 165.
90. Id. at 166-67
(implying that an environmental tort with international
consequences can be the basis for an ATS claim).
91. See e.g., United
Nations Framework Convention on Climate Change, 1771 U.N.T.S.
107, 31 ILM 849 (1992), available at http:// unfccc.int/resource/docs/convkp/conveng.pdf
(last visited **
May 16, 2006). A list of 198 signatories, including the United
States, is also provided at http:// unfccc.int/resource/conv/ratlist.pdf)
(last visited **
May 16, 2006). For a list of some of the literally dozens of
environmental conventions currently in circulation, see
Environmental Treaties and Resource Indicators (ENTRI), at http://sedac.ciesin.org/pidb/texts-menu.html
(last visited **
May 16, 2006).
92. See, e.g., American
Cetacean Soc. v. Baldridge, 604
F.Supp. 1398, 1407 (D.C. 1985). For discussion of treaties
that the U.S. has raised objections to, see James Salzman,
Decentralized Administrative Law in the Organization for
Economic Cooperation and Development, 68 Law & Contemp.
Probs. 189, 208-209 (2005); Eric Talbot Jensen & James J.
Teixeira, Jr., Prosecuting Members of the U.S. Military for
Wartime Environmental Crimes, 17 Geo. Int'l Envtl. L. Rev. 651,
657 n.29 (2005); David A. Wirth, The Rio Declaration on
Environment and Development: Two Steps Forward and One Back, or
Vice Versa?, 29 Ga. L. Rev. 599, 614-15 n.41 (1995); David A.
Ring, Sustainability Dynamics: Land-Based Marine Pollution and
Development Priorities in the Island States of the Commonwealth
Caribbean, 22 Colum. J. Envtl. L. 65, 126 n.365 (1997).
93. Convention on the
Prevention and Punishment of the Crime of Genocide, art. 2, 78
U.N.T.S. 277, entered into force Jan. 12, 1951.
95. See, e.g.,
Angel R. Oquendo, National Culture in Post-National Societies,
50 Vill. L. Rev. 963, 983-84 (2005).
96. For a more specific
definition of a jus cogens norm, see note 14, supra.
97. Kadic v. Karadzic,
70 F.3d 232, 243 (2d Cir. 1996), cert. denied, 518
U.S. 1005 (1996).
98. See TVPA, supra
note 2, at preamble ("To carry out obligations of the United
States under the United Nations Charter and other international
agreements pertaining to the protection of human rights by
establishing a civil action for recovery of damages from an
individual who engages in torture or extrajudicial killing.).
99. Id., § 2(a)
("Liability- An individual who, under actual or apparent
authority, or color of law, of any foreign nation.).
100. See generally
Kadic, 70 F.3d 232.
101. TVPA, supra note
2, § 2. This section states that:
[a]n individual who, under
actual or apparent authority, or color of law, of any foreign
(1) subjects an individual to
torture shall, in a civil action, be liable for damages to
that individual; or
(2) subjects an individual to
extrajudicial killing shall, in a civil action, be liable for
damages to the individual's legal representative, or to any
person who may be a claimant in an action for wrongful death.
(emphasis added). Note that
the statute does not say "citizen or "resident or "alien but
102. See Beanal v.
Freeport McMoran, 197
F.3d 161, 169 (5th Cir. 1999). The court did not reach the
issue of whether a corporation may be liable under the TVPA and
thus the question appears to be open. This is an issue because §
2 of the TVPA imputes liability to "an individual. The question
then is whether a corporation is "an individual.
103. TVPA, supra note
2, § 2(b).
104. Id., § 2(c).
B. Wriggins, The Feminism and Legal Theory Project:
Celebrating Twenty Years of Feminist Pedagogy, Praxis and
Prisms, 13 Am. U. J. Gender Soc. Pol'y & L. 139, 155
v. U.S., 281 F.3d 1004 (9th Cir. 2002).
107. But see Papa, 281
F.3d at 1011-12 ("The ATS specifies no statute of limitations.
In such situations, courts apply the limitations period provided
by the jurisdiction in which they sit unless 'a rule from
elsewhere in federal law clearly provides a closer analogy than
available state statutes, and when the federal policies at stake
and the practicalities of litigation make that rule a
significantly more appropriate vehicle for interstitial
108. Papa, 281 F.3d at
1012-13 ("The TVPA, like the ATS, furthers the protection of
human rights and helps 'carry out obligations of the United
States under the United Nations Charter and other international
agreements pertaining to the protection of human rights.'
Moreover, it employs a similar mechanism for carrying out these
goals: civil actions. The provisions of the TVPA were added to
the ATS, further indicating the close relationship between the
two statutes. All these factors point towards borrowing the
TVPA's statute of limitations for the ATS. In addition, the
realities of litigating claims brought under the ATS, and the
federal interest in providing a remedy, also point towards
adopting a uniform--and a generous--statute of limitations. The
nature of the violations suffered by those the ATS, like the
TVPA, was designed to protect will tend to preclude filings in
United States courts within a short time. Accordingly, we reject
the district court's adoption of the California statute of
limitations and adopt the ten-year statute of limitations
provided by the TVPA instead. Applying that statute, the Papas'
claims are timely.).
109. See generally
Beanal, 197 F.3d 161.
110. See generally
FCPA, supra at note 4.
111. Several appellate
courts have reached this issue and found that the term
"individual in the TVPA includes corporations. See Estate of
Rodriquez v. Drummond Co., Inc., 256
F.Supp.2d 1250, 1267 (N.D.Ala. 2003) ("individual in TVPA
includes corporations, citing Sinaltrainal v. The Coca Cola Co.,
16 Fla. L. Weekly Fed. D 388 (S.D.Fla.
2003)) But see contra Beanal, 197
112. See, e.g.,
Foreign Sovereign Immunities Act, 28 U.S.C. §§1602-1611.
113. See, e.g.,
Beanal, 197 F3d 161.
114. Doe v.
UnocalCorp., 963 F.Supp. 880 (9th Cir. 2002).
115. Tel-Oren v.
Libyan Arab Republic, 726
F.2d 774, 794-95 (D.C. Cir. 1984) (Edwards, J.,
concurring) (observing that while most crimes require state
action for ATS liability to attach, there are a "handful of
crimes, including slave trading, "to which the law of nations
attributes individual liability, such that state action is not
required.); Kadic, 70 F.3d at 242-43 (noting that genocide and
war crimes, like slave trading, do not require state action for
ATS liability to attach). Doe v. Unocal Corp., 395
F.3d 932 (9th Cir. 2002), appeal dismissed per stipulation
F. 3d 708 (April 13, 2005).
116. Saudi Arabia v.
U.S. 349 (1993).
117. Sampson v. Fed.
Republic of Germany, 250
F.3d 1145, 1150 (7th Cir. 2001) ("[A]lthough jus cogens
norms may address sovereign immunity in contexts where the
question is whether international law itself provides immunity,
e.g., the Nuremberg proceedings, jus cogens norms do not require
Congress (or any government) to create jurisdiction.). .
118. See generally
Nelson,507 U.S. 349.
119. Id., at 353.
120. Id., at 358.
121. Id. One
distinction here is important to remember: if Nelson had sued
the actual people he claims tortured him, they may not have been
122. Al-Adsani v.
United Kingdom, 34 Eur. H. R. Rep. 11 (2002).
123. Id., ¶ 10.
124. Id., ¶ 13.
125. Id., ¶¶ 23-24.
126. Id., ¶¶ 3, 21-22.
127. For a good
analysis of Al-Adsani, see Markus Rau, European and
International Law After Pinochet: Foreign Sovereign Immunity in
Respect of Serious Human Rights Violations - The Decision of the
European Court of Human Rights in the Al-Adsani Case, 3 German
L. J. 6 (June 1, 2002), available at http://www.germanlawjournal.com/past_issues.php?id=160
(last visited **
May 18, 2006).
F.3d 1145 (7th Cir. 2001).
129. Al-Adsani, 34
Eur. Hum. R. Rep., ¶ 23 ("[S]tates are not entitled to plead
immunity where there has been a violation of human rights norms
with the character of jus cogens, although in most cases the
plea of sovereign immunity had succeeded.).
130. See Anita
Ramasastry, Corporate Complicity: From Nuremberg To Rangoon,
An Examination Of Forced Labour Cases And Their Impact On The
Liability Of Multinational Corporations, 20 Berkeley J. Int'l
L. 91 (2002) (stating that jus cogens norms cannot be
derogated from and all jus cogens norms are erga omnes norms,
but not all erga omnes norms are jus cogens). For an excellent
discussion of jus cogens versus erga omnes in the international
criminal context see, Cherif Bassiouni, International Crimes Jus
Cogens and Obligatio Erga Omnes, SOS-Attentats, Conference
Proceedings, 265-278 (2002), available at: http://www.sos-attentats.org/juridique/etudes_
articles/27.pdf (last visited **
May 18, 2006).
131. Id. at 153
(stating that erga omnes obligations are a consequence of
general principles of international law). See also Barcelona
Traction, Light & Power Co., Ltd., (Belg. v. Spain), 1970
I.C.J. 32 (Feb. 1970). (stating all states have an
interest in the protection of an erga omnes norm).
v. Bartle, 38 I.L.M. 581 (1994) (referring to the
Convention Against Torture, infra at note 135).
against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment, June 26, 1984, 1465 U.N.T.S. 85, 23 I.L.M. 1027
[hereinafter Convention Against Torture or Torture Convention].
The United States is a signatory to the Convention. See http://
(last visited **
May 19, 2006).
134. See Torture
Convention, supra at note 135.
136. George v.
Pacific-CSC Work Furlough, 91
F.3d 1227, 1230 (9th Cir. 1996) (citing Lebron v. National
R.R. Passenger Corp., 513
U.S. 374, (1995), cert. denied, 513
U.S. 374 (1997), and noting that "cases deciding when
private action might be deemed that of the state have not been a
model of consistency.). The decision further took notice that
"the Supreme Court has articulated four distinct approaches to
the state action question: public function, state compulsion,
nexus, and joint action. Id.
137. 106 Stat. 73, at
§ 2 ("SEC. 2. ESTABLISHMENT OF CIVIL ACTION. (a) LIABILITY- An
individual who, under actual or apparent authority, or color of
law, of any foreign nation).
138. Filartiga II, 630
F.2d 876, 878 ("[W]e hold that deliberate torture perpetrated
under color of official authority violates universally accepted
norms of the international law of human rights, regardless of
the nationality of the parties. Thus, whenever an alleged
torturer is found and served with process by an alien within our
borders, § 1350 provides federal jurisdiction.).
139. Gallagher v. Neil
Young Freedom Concert, 49
F.3d 1442, 1453 (10th Cir. 1995) (noting that "courts
examine whether state officials and private parties have acted
in concert in effecting a particular deprivation of
constitutional rights, citing Collins v. Womancare, 878
F.2d 1145, 1154 (9th Cir. 1989)).
140. Kadic, 70
F.3d 232, 245 ("A private individual acts under color of
law within the meaning of section 1983 when he acts together
with state officials or with significant state aid.).
141. George, 91
F.3d 1227, 1230 (citing Lebron v. National R.R. Passenger
U.S. 374, 378 (1995) cert. denied, 513
U.S. 374 (1997)).
v. Kohn, 457 U.S. 830 (1982).
v. Proctor, 316 F.3d 584, 591 (6th Cir. 2003).
v. TSSAA, 1995 WL 115890, 4-5 (E.D. Tenn. 1995) (citing Blum
v. Yaretsky, 457 U.S. 991, 1004 (1982)).
145. Private actors
who are "willful participant[s] in joint action with the state
or its agents can be imputed to be state actors. Dennis v.
Sparks, 449 U.S. 24, 27, (1980). An agreement between government
and a private party can create joint action. See, e.g., Fonda v.
Gray, 707 F.2d 435, 437 (9th Cir. 1983).
146. It is an open
question whether the tests used to determine when a non-state
actor is acting under "color of law"are alternative tests, any
of which, if found to be applicable, will lead to a finding of
liability, or whether the different tests merely enumerate
several factors all of which must be considered and balanced. In
fact the "color of law"inquiry would have been completely
illegal as a violation of the Westphalian principle of
non-intervention, which explains the act of state doctrine.
However, interventions in other states' affairs are now at least
exceptionally permitted when those affairs are jus cogens
147. Cuban Liberty and
Democratic Solidarity (LIBERTAD) Act of 1996, 22 U.SC. §§
148. August Rheinisch,
Widening the U.S. Embargo against Cuba Extraterritorially: A few
Public International LawComments on the "Cuban Liberty and
Democratic Solidarity (LIBERTAD) Act of 1996, 7 Eur. J. Int'l L.
150. 22 U.S.C. §§
6021-6091, 302(a) 1, 302(a)(3).
151. Rheinisch, supra
at note 152.
152. Supra at note
153. For an extensive
discussion of Helms-Burton see generally Robert L. Muse, A
Public International Law Critique Of The Extraterritorial
Jurisdiction Of The Helms-Burton Act (Cuban Liberty And
Democratic Solidarity (Libertad) Act Of 1996), 30 Geo. Wash. J.
Int'l L. & Econ. 207 (1997).
155. David P. Fidler,
LIBERTAD v. Liberalism: An AnalysisError! Bookmark not defined.
of the Helms-Burton Act from within Liberal International
Relations Theory, 4 Ind. J. Global Legal Stud. 297 (1997).
156. Reinisch, supra,
at note 152.
157. Fidler, supra,
v. U.S., 331
F.3d 604, 632-33 (9th Cir. 2003). The opinion noted that:
The few courts that have
addressed damages under the ATS do not appear to have followed
a consistent approach in determining the applicable law.
Perhaps the most explicit treatment of the issue was offered
by the district court in the Filartiga litigation. When faced
with the question of damages on remand, the district court
decided, in light of the ATCA's purpose, that federal choice
of law principles should govern the initial determination of
the remedy. Applying these principles in the broadest of
terms, the court noted that virtually all of the contacts took
place in Paraguay, and thus Paraguayan law appeared to be
appropriate for setting compensatory damages. The court took a
different tack, however, on punitive damages. Because Paraguay
did not recognize punitive damages, which were deemed
necessary "to give effect to the manifest objectives of the
international prohibition against torture, the court turned to
international law principles.
(internal citations omitted).
(Second) of Conflict of Laws § 401 (1971).
161. Rubin, supra note
10, at 359.
164. Id. at 365.
Alvarez-Machain, 331 F.3d at 604.
169. Id. But see U.S.
v. Noriega, 117
F.3d 1206, 1222 (11th Cir. 1997).
170. Arrest Warrant of
11 April 2000 (Dem. Rep. Congo v. Belg.), 2002
ICJ 121, ¶ 45 (Feb. 14) (separate opinion of Judges
Higgins, Kooijmans, and Buergenthal) [hereinafter Congo v.
171. Id., ¶ 13.
172. Id., ¶ 51.
173. See generally
Engle, supra at note 12.
174. Congo v. Belgium,
ICJ 121, ¶ 41 (separate Opinion of Judges Higgins,
Kooijmans and Buergenthal).
The specified grounds relied
on links of nationality of the offender, or the ship or
aircraft concerned, or of the victim. See, for example,
Article 4 (1) Hague Convention; Article 3 (1) Tokyo
Convention; Article 5, Hostages Convention; Article 5, Torture
Convention. These may properly be described as treaty-based
broad extraterritorial jurisdiction. But in addition to these
were the parallel provisions whereby a State party in whose
jurisdiction the alleged perpetrator of such offences is
found, shall prosecute him or extradite him. By the loose use
of language the latter has come to be referred to as
"universal jurisdiction, though this is really an obligatory
territorial jurisdiction over persons, albeit in relation to
acts committed elsewhere.
175. See, Congo v.
ICJ 121, ¶ 9 (separate opinion of President Guillaume), ¶
41(separate opinion of Judges Higgins, Kooigmans and
177. Id. See also,
Antonio Cassese, When May Senior State Officials Be Tried for
International Crimes? Some Comments on The Congo v. Belgium
Case, 13 Eur. J. Int'l l., 853 (2002); Arrest Warrant Of 11
April 2000, 2002
I.C.J. at paras. 21-22 (Separate opinion of Judges
Higgins, Kooijmans and Buergenthal).
178. United States v.
U.S. 518 (1841) (recognizing that it is the right and duty
of all states to hunt pirates as they are "common enemies of
179. See, e.g., U.S.
v. Smith, 18
U.S. 153 (1820).
180. See generally
Amistad, 40 U.S. 518.
181. Thomas Giegerich,
Extraterritorialer Menschenrechtsschutz durch U.S. Gerichte:
Sachwalterschaft fĂšr die Internationale Gemeinschaft oder
judizieller Imperialismus?, in Menscheit und Menschenrechte:
Probleme der Univalisierung und Institutionalisierung 163
(Eckart Klein & Christopher Menke eds., 2001) ("Folterer,
Morder und Kriegsverbrecher sollten wie frĂšher Piraten und
Sklavenhandler als Feinde des Menschengeschlechts behandelt
werden [Torturers, murderers and war criminals should, like the
pirates and slavetraders of yore, be treated as common enemies
of all humanity [hostes humani generis]]). See also Filartiga
II, 630 F.2d 876 (using similar "common enemies of all humanity
182. Cassese, supra
note 182, at 856.
183. Id. at 859-62.
184. Reasoning from
the greater to the lesser, e.g., if it is forbidden to kill then
it is also forbidden to wound.
185. Cassese, supra
note 182, at 855-58.
187. United States v.
F.3d 1121, 1133 (D.C. Cir. 1998).
188. The denial of
immunity in cases of state sponsored terrorism might be
justified if state terrorism is a violation of a jus cogens
norm. See William P. Hoye, Fighting Fire With... Mire? Civil
Remedies And The New War On State-Sponsored Terrorism, 12 Duke
J. Comp. & Int'l L. 105, 110 (2002); (noting that this point
is "hotly contested)[ hereinafter Hoye].
189. Sabbatino, 376
U.S. 398 at 445.
190. See generally
Cassese, supra at note 182.
Volkswagen Corp. v. Woodson, 444
U.S. 286, 291-292 (1980).
192. See, e.g., An v.
Chun 1998 U.S. App. LEXIS 1303 (9th Cir. 1998); and Wiwa, 226
F.3d at 98.
193. See generally
Fiona McKay, Universal Jurisdiction In Europe, Redress (2000),
available at http://www.redress.org/documents/unijeur.html
(last visited **
May 18, 2006).
194. The Belgian
statute appears to be the most wide reaching, allowing
jurisdiction in absentia regardless of the locus of the delict.
See Belgian Law, supra at note 13; and see Stefaan Smis &
Kim Van der Borght, Belgian Law concerning The Punishment of
Grave Breaches of International Humanitarian Law: A Contested
Law with Uncontested Objectives, ASIL INSIGHTS (July 2003),
available at http://www.asil.org/insights/insigh112.htm
(last visited **
May 26, 2006).
Keller, Belgian Jury to Decide Case Concerning Rwandan
Genocide, ASIL Insights (May 2001), available at http:// www.asil.org/insights/insigh72.htm
(last visited **
May 26, 2006).
v. F.R.G., 250 F.3d 1145, 1152 (2001) ("[A]lthough jus
cogens norms may address sovereign immunity in contexts where
the question is whether international law itself provides
immunity... jus cogens norms do not require Congress (or any
government) to create jurisdiction.)
S. Martinez, Towards an International Judicial System, 56
Stan. L. Rev. 429, 506 (2003) (describing the natures of
jurisdiction as "jurisdiction to adjudicate (whether the court
has personal and subject matter jurisdiction) and jurisdiction
to prescribe (whether the law in question applies
M. Hall, Multinational Corporations' Post-Unocal Liabilities
for Violations of International Law, 34 Geo. Wash. Int'l L.
Rev. 401, 411-412 (2002) ("The jurisdiction to adjudicate
refers to: (i) the court's exercise of personal jurisdiction
over the defendant; and (ii) the court having subject matter
jurisdiction over the matter in question.); Henry
H. Perritt, Jr., Will the Judgment-Proof Own Cyberspace?, 32
Int'l Law. 1121, 1127 (1998) ("Jurisdiction to adjudicate
includes power over the subject matter of the controversy,
'subject-matter jurisdiction,' and power over the parties,
199. See, Stoll v.
U.S. 165, 171-72 (1938); and Thompson v. Whitman, 85
U.S. 457, 465 (1874).
200. See An
v. Chun, 1998 U.S. App. LEXIS 1303 (9th Cir. 1998).
Shoe Co. v. Washington, 326
U.S. 310, 316 (1945) (quoting Milliken v. Meyer, 311
U.S. 457, 463 (1940)) ("The test for personal jurisdiction
requires that "the maintenance of the suit... not offend
'traditional notions of fair play and substantial justice.').
Volkswagen Corp. v. Woodson, 444
U.S. 286, 291-292 (1980) ("[A] state court may exercise
personal jurisdiction over a non-resident defendant only so long
as there exist 'minimum contacts' between the defendant and the
forum State. The concept of minimum contacts, in turn, can be
seen to perform two related, but distinguishable, functions. It
protects the defendant against the burdens of litigating in a
distant or inconvenient forum. And it acts to ensure that the
States, through their courts, do not reach out beyond the limits
imposed on them by their status as coequal sovereigns in a
v. Neff, 95 U. S. 714 (1878).
v. Denckla, 357 U. S. 235, 246 n. 12 (1958).
Nacionales de Colombi v. Hall, 466
U.S. 408, 414 (1984).
206. See generally
International Shoe, 326 U.S. at 310.
207. See An, 1998 U.S.
App. LEXIS at 1303.
208. See generally World-Wide
Volkswagen, 444 U.S. at 286.
209. For an excellent
synopsis of these points of law, see Pinker
v. Roche Holdings Ltd., 292 F.3d 361 (3rd Cir. 2002).
210. See Wiwa, 226
F.3d at 88.
211. See An, 1998 U.S.
App. LEXIS at 1303.
212. Id. ("Where
service is made under § 1608 of the FSIA, the relevant area in
delineating contacts is the entire United States, not merely the
forum state. Appellees have not engaged in the necessary
activity in the United States to confer either general or
specific personal jurisdiction. They do not own property or
conduct business anywhere in the United States. Their visits to
this country have been almost entirely official visits on behalf
of the Korean government, which do not confer general
jurisdiction, and were unrelated to the cause of action in this
214. See Wiwa, 226
F.3d at 88.
215. Aric Short, Is
the Alien Tort Statute Sacrosanct? Retaining Forum Non
Conveniens in Human Rights Litigation, 33 N.Y.U. J. Int'l L.
& Pol. 1001, 1035 (2001).
216. See, e.g.,
Sabbatino, 376 U.S. at 398.
217. Hilton v. Guyot,
159 U.S. 113, 143 (1895).
218. Comity is
discussed at length in Bigio v. Coca-Cola Company, 239
F.3d 440 (2nd Cir. 2000).
219. See id.
220. Sabbatino, 376
U.S. at 408-409 (stating that "principles of comity governing
this country's relations with other nations, sovereign states
and [sic] allowed to sue in the courts of the United States.).
See also Hilton, 159 U.S. at 163 (calling comity "neither a
matter of absolute obligation, on the one hand, nor of mere
courtesy and good will, upon the other.)
221. See Bigio, 239
F.3d at 440.
222. See Wiwa, 226
F.3d at 88.
223. See Id.
224. Id. at 100.
225. Id. at 101.
226. Id. at 100.
229. Price v.
Socialist People's Libyan Arab Jamahiriya, 294
F.3d 82 (D.C. Cir. 2002).
232. See, e.g., Bigio,
239 F.3d at 440.
233. Doe v. Unocal
Corp., 963 F. Supp. at 893 n.12.
234. Sabbatino, 376
U.S. at 416.
235. Doe v. Unocal
Corp., 963 F. Supp. at 893.
236. Here U.S.
national law parallels international law. See, e.g., Prefecture
of Voiotia v. F.R.G., Areios Pagos [AP][Supreme Court] (11/2000)
(Greece) (discussing the acte jure gestionis and acte jure
imperii in the context of jus cogens violations).
237. Filartiga II, 630
F.2d at 889.
238. See, e.g., Bigio,
239 F.3d at 451.
239. Kadic, 70 F. 3d
at 248-50 (discussing the requirements of the political question
240. Id. at 247, n.9
("Conceivably, a narrow immunity from service of process might
exist under section 11 for invitees who are in direct transit
between an airport (or other point of entry into the United
States) and the Headquarters District. Even if such a narrow
immunity did exist--which we do not decide--Karadzic would not
benefit from it since he was not served while travelling to or
from the Headquarters District.).
241. Id. at 249
(quoting Klinghoffer v. S.N.C. Achille Lauro, 937
F.2d 44, 49 (2nd Cir. 1991)).
U.S. 186 (1962).
244. The court noted
the distinction between a political case and a political
question in the following "Baker Factors:
A nonjusticiable political
question would ordinarily involve one or more of the following
factors: [1 a textually demonstrable constitutional commitment
of the issue to a coordinate political department; or [2 a
lack of judicially discoverable and manageable standards for
resolving it; or [3 the impossibility of deciding without an
initial policy determination of a kind clearly for nonjudicial
discretion; or [4 the impossibility of a court's undertaking
independent resolution without expressing lack of the respect
due coordinate branches of government; or [5 an unusual need
for unquestioning adherence to a political decision already
made; or [6 the potentiality of embarrassment from
multifarious pronouncements by various departments on one
245. See, e.g., The
Schooner Exchange v McFaddon, 11 U.S. (7 Cranch) 116, 136-37
246. See generally
Congo v. Belgium, 2002
ICJ 121 (Feb. 14).
247. Filartiga II, 630
F.2d at 884.
248. Id. at 884
(citing Constitution of Paraguay, art. 45 (prohibiting torture
and other cruel treatment)).
249. Sampson, 50
F.3d at 1149 n.3.
250. Id. For a
discussion of similar legal issues in related cases, see Scott
A. Richman, Comment, Siderman De Blake v. Republic Of ? 19
Brook. J. Int'l L. 967 (1993).
5 U.S. (1 Cranch) at 147 (citing William Blackstone 3
252. Id. at 162-163.
See also,In re Mossavi., 334
N.J. Super. 112 (2000).
253. U.S. v.
U.S. 655, 659 (1992).
254. Israel v.
Eichmann, 36 I .L. R. 277 (Sup. Ct. Israel 1962).
Eichmann is not the only case where a national was kidnapped in
a foreign state by a prosecuting state but had no remedy due to
the fact that recourse could only be had in the state he was
kidnapped from. See Re Argoud 45 I.L.R. 90 (Cass. Crim. 1964).
See also Brigette
Belton Homrig, Abduction As An Alternative To Extradition--A
Dangerous Method To Obtain Jurisdiction Over Criminal
Defendants, 28 Wake Forest L. Rev. 671 (1993) (noting that
while abduction is unpleasant, assassination is more so).
v. Noriega, 117 F.3d 1206, 1213 (11th Cir. 1997).
257. See Arret
de la Cour D'Appel de Bruxelles, Sharon Ariel, Yaron Amos et
autres, art 136 bis, al 2 et 235 bis CIC (June 26, 2002).
258. See Regina v Bow
Street Magistrate, Ex parte Pinochet Ugarte (No. 3), [2000
1 AC 147 (H.L. 1999)).
259. Noriega, 117 F.3d
Republic v. Amerada Hess Shipping, 488
U.S. 428, 431 (1988).
261. Sampson, 250 F.3d
262. Id. See also
Saudi Arabia v. Nelson, 507
U.S. 349, 355 (1993).
U.S.C. § 1604.
U.S.C. § 1605 (a) (1).
265. Sampson, 50
F.3d at 1151-54.
266. Id. at 1150.
267. Id. at 1147.
268. 28 U.S.C. §§
1602, 1605(a)(2),(3), 1605(b).
269. 28 U.S.C. §
270. See Argentine
Republic v. Amareda Hess, 488
U.S. 428 (1989). See also Adler v. Federal Republic of
F.3d. 869 (9th Cir. 2000) (stating that mere financial
loss in the United States does not constitute a direct effect);
and Australian Govt. Aircraft Factories v. Lynne, 743
F.2d 672, 673-75 (9th Cir. 1984) (holding that when an
American is killed in airplane crash abroad, the losses suffered
by his family members in the United States as a result of his
death were not direct effects for purposes of the FSIA).
v. Unocal Corp., 963 F. Supp. at 886 (citing Phaneuf v.
Rep. of Indonesia, 106 F.3d. 302, 306 (9th Cir. 1997)).
273. 28 U.S.C. §§ 2241
274. 28 U.S.C. §
1605(a)(7). For a close examination of the AEDPA, see
Robin Trueworthy, Retroactive Application Of The
Anti-Terrorism And Effective Death Penalty Act Of 1996 To
Pending Cases: Rewriting A Poorly Written Congressional
Statute, 75 Wash. U. L.Q. 1707 (1997).
U.S.C. § 1605 (a)(7).
276. Rein v. Socialist
People's Libyan Arab Jamahiriya, 162
F.3d 748, 754 (2nd Cir. 1998).
U.S.C. § 1605 (a)(7)(B)(ii).
U.S.C. § 1605 (a)(7)(B)(i).
C. Trueworthy, Retroactive Application Of The Anti-Terrorism
And Effective Death Penalty Act Of 1996 To Pending Cases:
Rewriting A Poorly Written Congressional Statute, 75 Wash. U.
L.Q. 1707, 1708 (1997).
280. Abdelbaset Ali
Mohmed al Megrahi v. Her Majesty, Appeal No: C104/01 (date),
available at http:// files.findlaw.com/news.findlaw.com/hdocs/docs/lockerbie/lockappl031402dec.pdf
(last visited **
May 18, 2006).
Arab Jamahiriya v. United Kingdom ICJ (27 February 1998),
available at http://news.findlaw.com/hdocs/docs/lockerbie/iluk_ijudgment_
980227.html (last visited **
May 18, 2006).
282. Hoye, Supra note
199, at 139 (citing Case of S.S. Lotus (Fr. v. Turk.), 1927
P.C.I.J. (ser. A) No. 10, at 18 (Sept. 7).
283. Hoye, Supra at
284. See Doe v. Unocal
Corp., 963 F. Supp at 880.
285. See An,134 F.3d.
v. P.R.C., 892 F.2d 1419, 1432 (9th Cir. 1989).
re Estate of Ferdinand E. Marcos, 978 F.2d at 493.
v. Union Carbide, 273 F.3d 120 (2nd Cir. 2001). This case
was decided on procedural grounds, essentially citing to the
settlement in India and thus did not touch upon the substantive
merits of the ATS claim in the United States for the disaster at
Bhopal where thousands died due to corporate negligence.
of Westphalia, October 24, 1648, available at http:// www.yale.edu/lawavalon/westphal.htm
(last visited **
May 18, 2006). See also Thomas Snyder, Explaining the New World
Order of the 1990's [sic], 3 (2003), http://www.ndu.edu/library/n4/n035605n.pdf
(last visited **
May 18, 2006); and Eric Allen Engle, The Transformation of the
International Legal System: The Post-Westphalian Legal Order, 23
QLR 23 (2004).
290. See, e.g., U.
Beyerlin, The Role of NGOs in International Environmental
Litigation 61 ZaoRV 357 (2003).
| Political Economy
| Law News for Lawyers
| Financial Calculators
| Corporate Governance
| Financial News
| Income Statement
| Law Review Articles
| Legal Resources