By Donald J. Kochan *
The "Headache": An Expanding
Scope of Liability
Customary international law is increasingly permeating the jurisprudence
of American courts. Early Supreme Court cases established the proposition
that the "law of nations" is part of "our law."
Since those pronouncements, however, the "law of nations"
has become "international law," growing exponentially
to cover human rights and non-state actors. Several new vehicles
have emerged in recent years that allow federal courts to search
the vast array of international law principles and adopt them as
controlling legal authority. The Alien Tort Claims Act (ATCA) is
one of the most significant among these laws creating private causes
of action for violations of international law.
Aside from the constitutional issues raised by the ATCA and others
like it, business interests may have serious liability concerns.
Perhaps one of the most important cases to business interests is
John Doe I v. Unocal Corp.(1) The suit alleges that oil giant Unocal
was complicit in human rights abuses while building a gas pipeline
in Myanmar. In its 1997 decision on subject matter jurisdiction,
a federal district court in California determined that jurisdiction
existed under the ATCA for alleged violations of international law
by Unocal even as a non-state actor. In commenting on the ongoing
ATCA suit against Unocal, The Economist in its April 24, 1999, issue
described the threat. "The next big test will be whether the
Alien Tort Claims Act can be used against companies as well as individuals."
And, if companies begin losing in this emerging field of litigation,
it could "provide a major headache for many American companies
With increasing frequency, corporations are becoming targets as
the number and type of suits filed under the ATCA expands. Plaintiff
claims have ranged from allegations of human rights abuses from
environmental injuries caused by corporate operations to certain
labor practices as violative of international law. Although these
suits have met with varying success, the threat of liability to
multinational operations looms. Moreover, courts are recognizing
an expanding scope of liability in more "traditional"
human rights cases, creating precedent that will allow ATCA jurisprudence
to expand generally, thereby affecting all potential defendants
within its reach.
This Article explores the growth of ATCA jurisprudence to help
explain the foundation for this emerging litigation approach. It
then proceeds to explain some of the constitutional infirmities
of the current ATCA jurisprudence(2) and a possible interpretation
of the law that would conform to constitutional limitations.
The Source: The ATCA and Its Modern
The Restatement (Third) of Foreign Relations Law of the United
States, Sections 111 and 112, asserts that customary international
law is part of federal common law. This assertion reflects the path
U.S. courts have chosen in recent years when defining their competence
to apply international legal principles to particular cases.
Early cases, including The Nereide,(3) United States v. Smith(4)
and The Paquete Habana(5), established the proposition that the
"law of nations" is included in the federal common law
of the United States. Courts may ascertain the law of nations "by
consulting the works of jurists, writing professedly on public law;
or by the general usage and practice of nations; or by judicial
decisions recognizing and enforcing that law."
Moreover, the The Paquette Habana Court set forth perhaps the most
relied upon statement relating to the justiciability of the "law
of nations." Its statement presents three critical rules. First,
it reaffirms the proposition that international law is part of the
law of the United States, or at least its admiralty law. Second,
it holds that an international "law" can be controlling
and applied by the court even when it has not previously been recognized
in a treaty of the United States, a legislative act, an executive
act, or a prior decision by a court. The Court supports its optimism
that such a neutral task can be accomplished with the assurance
of Wheaton that jurists and commentators are "generally impartial
in their judgment." Finally, the Court illustrated a willingness
to give international law a dynamic perspective, i.e., it indicated
that the law of nations cannot be analyzed from a static perspective
and that certain standards ripen over time into settled rules of
The ATCA, arising from a provision in the Judiciary Act of 1789,
provides: "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."(6)
Little direct evidence of Congress' intentions in enacting this
provision exists to lend guidance to those searching for its meaning.
In the ATCA's more than 200 year history, neither the Supreme Court
nor Congress has given the judiciary guidance in its application.
Prior to 1980, jurisdiction under the ATCA was predicated successfully
only two times. For almost 200 years, therefore, this Act essentially
In Filartiga v. Pena-Irala,(7) decided in 1980, the Second Circuit
resurrected the ATCA from its fairly dormant existence. In Filartiga,
Dolly Filartiga, a citizen of the Republic of Paraguay, brought
suit against a former Inspector General of Police of Paraguay, for
allegedly kidnaping, torturing, and killing her brother while holding
that office. The alleged action took place in Paraguay. Suit was
brought, however, while both Filartiga and Pena were in the United
States on visitor's visas. The district court dismissed the action
for lack of subject matter jurisdiction. The Second Circuit reversed
and remanded, holding that deliberate torture by state officials
violates international law, and that alleging such torture creates
jurisdiction under the ATCA.
For the first time, the ATCA was applied in the modern human rights
context. Furthermore, Filartiga established that "international
law" is an evolving concept to be ascertained by the courts.
In order to determine which principles are controlling as international
"law," the court accepted the methodology prescribed in
Smith and The Paquete Habana of looking to general usages and customs
of nations, as evidenced by the works of jurists and commentators,
as well as treaties and declarations or resolutions of multinational
bodies such as the United Nations. To that extent, the Smith-Paquete
Habana methodology was incorporated as the precedent for interpreting
In 1985, the D.C. Circuit was faced with a similar task of applying
the ATCA in Hanoch Tel-Oren v. Libyan Arab Republic.(8) On behalf
of persons killed on a civilian bus in Israel, the plaintiffs charged
the defendants with multiple tortious acts in violation of international
law. A panel of the D.C. Circuit unanimously agreed that the court
did not have jurisdiction over the plaintiffs' causes of action.
Each judge, however, wrote a separate concurring opinion, each positing
a different basis for denying jurisdiction.
Judge Edwards, adhering to the Filartiga rationale, argued violations
of the law of nations is a narrow category reserved to "a handful
of heinous actions each of which violates definable, universal
and obligatory norms," and that the actions in this case did
not trigger such jurisdiction. Edwards cautioned, however, that
when a proper cause of action satisfies the requirements of the
ATCA, the judiciary should exercise jurisdiction.
Judge Robb relied primarily on the political question doctrine
in his concurrence, asserting that an exercise of jurisdiction improperly
involved the judiciary in foreign affairs, an area outside of its
expertise and one wrought with the danger of interference with the
political branches. Furthermore, Judge Robb rejected the Filartiga
formulation for ascertaining international law arguing "statutes
ought not to mutate," and "courts ought not to serve as
debating clubs for professors" providing courts with "little
more than a numbing sense of how varied is the world of public international
`law'." Absent Congressional guidelines to clarify the ATCA's
application or purpose, Judge Robb saw no opportunity for judicial
cognizance under the statute.
Judge Bork found that the ATCA merely provides a forum and did
not provide a separate and automatic private cause of action for
violations of international law. That is, even though international
law may be part of the federal common law, it is not of the type,
such as in torts or contracts, that allows judges to fashion a remedy,
but merely involves rules of decision. Furthermore, Bork found no
other statute or binding international law relied upon by the plaintiffs
that conferred a right to a cause of action in the case.
Finally, Judge Bork also argued that "one might suppose"
that the meaning of "law of nations" in the ATCA dealt
with the three kinds of offences understood to constitute the whole
of international law at the founding: violation of safe conducts,
infringement of the rights of ambassadors, and piracy. Furthermore,
Bork noted that this list is quite consistent with specific categories
enumerated in Article III.
The expansion of the judicial application of the ATCA reached new
heights in 1995 with the decision in Kadic v. Karadzic.(9) The plaintiffs
in Kadic were Croat and Muslim citizens of Bosnia-Herzegovina. They
alleged that they were victims, and representatives of victims,
of various atrocities including rape, torture, and summary executions
by the Bosnian-Serb military forces. The district court dismissed
the case for lack of subject-matter jurisdiction. The Second Circuit
reversed this ruling.
The Second Circuit held that the ATCA applies to actions by state
actors or private individuals that are in violation of customary
international law. According to the Kadic court, state action is
not always necessary to be a cognizable violation of the law of
nations. The court accepted the principles it earlier adopted in
Filartiga noting that international law is constantly evolving and
consulting a similar list of authorities to ascertain the norms
of contemporary international law.
Since Kadic, the Ninth (10) and Eleventh (11) Circuits have had
significant opportunities to examine and apply the ATCA and have
generally followed the lead of the Second Circuit. In late November
1999, the Fifth Circuit also appeared to accept the Filartiga/ Kadic
line in dicta, although affirming a dismissal for failure to state
a claim in a suit charging a corporation with violations of international
law for environmental harms.(12) In addition, several district courts
have been faced with a multitude of ATCA claims.
The Diagnosis: A Structural Problem
with the ATCA's Application
Several challenges to the constitutionality of the ATCA as applied
can be posited. This section presents one challenge based on the
juridictional boundaries of Article III.
Article III, Section 2 of the Constitution defines the parameters
of the judicial branch's authority stating, "The judicial Power
shall extend to all Cases, in Law and Equity, arising under this
Constitution, the Laws of the United States, and Treaties made,
or which shall be made, under their Authority . . . ," along
with a few specific areas of additional jurisdiction. The enumeration
of judicial power in Article III constitutes the entire mass of
the judicial branch's authority. To that extent, authority for determining
the "law of nations" must be found in Article III. Applying
the concept that international law is part of the federal common
law, many courts applying the ATCA, including each of the cases
discussed in the previous Part, have used the "arising under
. . . laws of the United States" clause to justify Article
III jurisdiction over human rights claims and other portions of
international law not within a separate category of Article III
jurisdiction. The propriety of such a construction is called into
question, however, when viewing Article III as a whole.
The law of nations plays a role in four categories of enumerated
cases to which the Constitution grants jurisdictional authority
cases or controversies arising under treaties of the United
States; cases affecting Ambassadors, other Public Ministers and
Consuls; cases of admiralty and maritime jurisdiction; and controversies
between a State, or the Citizens thereof, and foreign States, Citizens
or Subjects but no general subject-matter grant is given
over this area. In fact, the enumeration of particular areas in
which the law of nations is involved negates a presumption that
such a general grant could exist. If the law of nations was included
in the laws of the United States, the inclusion of these three additional
categories of jurisdiction would be unnecessary and redundant.
For example, admiralty law is a category distinct from the "laws
of the United States," yet one clearly an element of the law
of nations. Because prize cases involve the application of the admiralty
subcategory of international law, if a general grant over the "law
of nations" is included in the "laws of the United States,"
the federal courts could obtain jurisdiction over these admiralty
cases without a separate enumeration of admiralty and maritime jurisdiction.
If one accepts that the laws of the United States generally incorporate
international law, he must accept that the admiralty jurisdictional
clause is unnecessary and, to that extent, superfluous. Certainly
that cannot be an appropriate outcome for the construction of a
written document, especially a Constitution.
Such a contruction also could explain the Neirede/Smith/Paquete
Habana line of cases. Each of these, after all, involved admiralty
jurisdiction, an area where, indeed, international law may be proper
under this construction.
Furthermore, Congress, not the courts, is expressly granted a right
to define the law of nations. Article I, Section 8, clause 10 of
the Constitution states that "The Congress shall have the Power
. . . to define and punish Piracies and Felonies committed on the
high Seas, and Offences against the Law of Nations." The Framers
recognized that effective diplomatic relations required the government
to speak with one voice. Multiple voices are likely to be divergent
voices, creating confusion and the possibility of embroiling the
nation in international conflicts.
During the constitutional debates, it was further recognized that
the law of nations is often too vague and indeterminate to act as
a legal principle, and instead must be defined by Congress to act
as a controlling doctrine.(13) It was further understood by the
Framers that only portions of the law of nations might be appropriate
"laws" which should bind the conduct of the United States.(14)
The political branches, the Executive and Congress, were given the
power to determine which international laws should bind the actions
of the United States. Inherent in a political decision is also the
ability to alter that decision. A judicial pronouncement that a
law is binding upon all nations, including our own political branches,
lacks such flexibility.
The Aspirin: A Two-Step Jurisdictional
If the construction set forth below were adopted, the subject matter
of potential suits would be narrowed and the range of potential
defendants would not extend beyond state actors. Consequently, liability
under the ATCA would be significantly limited, although not eliminated.
More importantly, the limitations of the Constitution would be respected.
Assuming all other requirements of the ATCA are met and that the
plaintiff alleges a violation of the law of nations (as opposed
to a treaty), jurisdiction should be granted only if a court can
answer affirmatively one of the two following questions:
1) Is the plaintiff seeking a remedy for a tort only committed
in violation of the law of nations and does the case fall under
a category of Article III which I shall call "special jurisdiction"
that is does the case sound in admiralty or maritime, or
does the case involve a foreign minister, counsel, or ambassador,
or is the case brought against a citizen of the United States by
an alien who is a citizen of a foreign state? Or,
2) If the case does not fall within any area of special jurisdiction
under Article III and the plaintiff is thus relying on the jurisdictional
authority of the "laws of the United States," is the plaintiff
seeking a remedy for a tort only committed in violation of a law
of nations as defined by Congress under its Article I, Section 8,
Clause 10 authority?
If the answer to both questions is "no," jurisdiction
under the ATCA cannot be triggered.
Because the ATCA must fit within the confines of Article III, this
two-step analysis seeks to define the only legitimate role for the
ATCA in the constitutional structure. If the ATCA is to be properly
applied, the role of the judge should first be to determine whether
the cases at hand is one affecting a special jurisdictional category.
If the case falls within one of these categories, reference to international
law will be appropriate and anticipated by the Framers in the crafting
of Article III. If, however, the case or controversy does not fall
within one of these categories, the judge must look to the Constitution,
the laws of the United States, or a treaty of the United States,
and the court must restrict itself to referencing these domestic
declarations of law. This means that the judge must look to "laws
of the United States." Under the structural view, these laws
cannot include a general international common law. The judge's duty,
therefore, is to ascertain whether Congress has defined an offense
against the law of nations making it actionable under the domestic
laws clause. If it has not, the judge has no authority to apply
* Associate, Crowell & Moring LLP. The views expressed herein
are entirely those of the author.
NOTE: For a more detailed presentation of the thesis presented in
this Article, see Donald J. Kochan, Constitutional Structure as
a Limitation on the Scope of the "Law of Nations" in the
Alien Tort Claims Act, 31 Cornell Int'l L.J. 153 (1998).
- 963 F.Supp. 880 (C.D. Cal. 1997).
- For analyses of the
various problems posed by the use of international law in domestic
courts, see Curtis A. Bradley & Jack L. Goldsmith, Customary
International Law as Federal Common Law: A Critique of the Modern
Position, 110 Harv. L. Rev. 815 (1997); Curtis A. Bradley &
Jack L. Goldsmith, Federal Courts and the Incorporation of International
Law, 111 Harv. L. Rev. 2260 (1998); Curtis A. Bradley & Jack
L. Goldsmith, Federal Courts, Foreign Affairs, and Federalism,
83 Va. L. Rev. 1617 (1997).
- 13 U.S. (9 Cranch)
- 18 U.S. (5 Wheat) 153
- 175 U.S. 677 (1900).
- 28 U.S.C. Section 1350.
The separate clause granting jurisdiction over torts committed
in violation of treaties of the United States is beyond the scope
of this Article.
- 630 F.2d 876, 877 (2d
- 726 F.2d 774 (1984).
- 70 F.3d 232 (2d Cir.
- See, e.g., Hilao v.
Estate of Ferdinand Marcos,103 F.3d 767 (9th Cir. 1996); 103 F.3d
789 (9th Cir. 1996).
- See, e.g., Abebe-Jira
v. Negewo, 72 F.3d 844 (1996).
- See Beanal v. Freeport-McMoran,
Inc., 1999 U.S. App. Lexis 31536 (5th Cir. Nov. 29, 1999).
- James Madison, Notes
of Debates in the Federal Convention of 1787, 637 (Bicentennial
ed., Norton 1987)(reporting for September 14, 1787).
- The Federalist No.
53, at 364 (James Madison)(Jacob E. Cooke ed., 1961).