INTERNATIONAL HUMAN RIGHTS LAW CLINIC BOALT HALL …1 INTERNATIONAL HUMAN RIGHTS LAW CLINIC BOALT...

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INTERNATIONAL HUMAN RIGHTS LAW CLINIC

BOALT HALL, SCHOOL OF LAW

ALIEN TORT CLAIMS ACT CASE COMPENDIUM• This document contains all published opinions interpreting the Alien Tort Claims Act as of March 2004. It is not meant to be a searchable database but instead to provide a quick review of cases filed, litigated, or adjudicated. Please keep the following in mind when consulting this document: Organization of the Document: Each case is summarized in a separate table that lists: (1) the case name and citation; (2) the name of the presiding judge and, where available, the name of the U.S. President who appointed the judge; (3) a factual summary; (4) the holding of the opinion; e.g. motion to dismiss denied; and (5) the primary reasoning and arguments advanced along with the defenses asserted. We also specifically note the international law norms discussed as well as the analysis of any disputed customary international law norm. Please note that not all cases that survive a motion for summary judgment or dismissal have continued to be litigated and for some cases there was no further public history or data. All cases are organized alphabetically by the name of the first party. If more than one decision is issued in a particular case, we have organized the decisions in chronological order (beginning with the earliest and progressing to the most recent decision). Cases in which multiple opinions have been issued are listed together and include the most recent available status, e.g., on appeal; final judgment entered; or seeking enforcement of final judgment. Some cases (brought by multiple plaintiffs) are consolidated, e.g. Karadzic and Alvarez-Machain. Also note that some cases were reversed under a different name, (e.g. Doe v. Karadzic of 1994 was reversed sub nom. in Kadic v. Karadzic in 1995). Methodology: We searched public databases for cases interpreting the Alien Tort Claims Act (we also searched for “Alien Tort Statute” or the code section “28 U.S.C.A 1350”). Cases that mention the statute in passing but do discuss its substantive provisions are not included. Cases which courts dismissed are also summarized, and the reasons for dismissal are separately noted.

• This compendium was created by Clinic Interns Adam Day, Catherine Mezza, and Volinka Reina.

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CASE Abebe-Jira v. Negewo, 72 F.3d 844 (11th Cir. 1996) Judge Hon. HATCHETT, Circuit Judge, Appointed by Pres.

Jimmy Carter Summary of Facts: The district court entered a judgment that awarded

appellee victims damages under the ATCA, after appellant tortfeasor had tortured and degraded appellees during a military dictatorship in Ethiopia. The court affirmed the judgment of the district court.

Holdings The court rejected appellant's assertion that the district court lacked subject matter jurisdiction because the Act did not provide a private right of action.

Reasoning/Arguments The court read the statute as requiring no more than a claim of a violation of the law of nations in order to invoke § 1350. The court stated that the statute conferred federal subject-matter jurisdiction when an alien brought an action for a tort committed in violation of the law of nations, such as international law.

International Law Norms Discussed

The court of appeals in Filartiga emphasized that federal courts considering whether to assume jurisdiction under section 1350 should interpret international law as it has evolved and exists at the time of the case. The court then concluded that official torture is now prohibited by the law of nations.

Customary Law Analysis The court held that the Act established a federal forum where courts could fashion domestic common law remedies to give effect to violations of customary international law.

Defenses The court rejected appellant's assertion that the district court lacked subject matter jurisdiction because the Act did not provide a private right of action.

Other Information of Interest

“The political question doctrine prevents the judicial branch from deciding issues textually committed to the legislative or executive branches. Baker v. Carr, 369 U.S. 186, 211, 82 S. Ct. 691, 706, 7 L. Ed. 2d 663 (1962). However, "it is error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance." Baker, 369 U.S. at 211, 82 S. Ct. at 706. In Linder v. Portocarrero, 963 F.2d 332, 337 (11th Cir.1992), we held that the political question doctrine did not bar a tort action instituted against Nicaraguan contra leaders. Consequently, we reject Negewo's contention in light of Linder.”

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CASE

Abiola v. Abubakar 267 F.Supp.2d 907 N.D.Ill.,2003. June 17, 2003.

Judge Hon. Matthew F. Kennelly Appointed by Pres. Clinton

Summary of Facts: Nigerian nationals, alleging they suffered grave human rights abuses in that country, sued former head of state under Alien Tort Claims Act (ATCA) seeking damages. Former head of state moved for summary judgment. Before his ascension to head of state, Abubakar was appointed the Chief of Defense Staff by General Babangida. In this role, Abubakar was a member of the PRC and a high ranking member of the military junta. The complaint alleges that between 1993 and 1998, Abubakar occupied the third highest military and political position in Nigeria. When he assumed power in 1998, he became head of state, Commander in Chief of the Nigerian armed forces, and Chairman of the PRC. Plaintiff Hafsat Abiola is the daughter of Nigerian pro-democracy activists; she alleges that Abubakar is responsible for their deaths. Plaintiff Arthur Nwankwo is a scholar and political activist who was arrested on June 3, 1998. The complaint alleges that upon his arrest, Nwankwo was stripped naked, flogged with a cane, and carried away in a car trunk. The conditions of his confinement were severe; he was tortured and not permitted any clothes or covers. He was denied access to family, doctors, or legal counsel. He was released on August 24, 1998.

Holdings (1) Plaintiffs were not required to satisfy exhaustion of remedies provisions contained in Torture Victim Protection Act (TVPA); (2) Former head of state had sovereign immunity for period he was serving in that capacity; (3) Court had personal jurisdiction; and (4) Case would not be dismissed in favor of litigation in Nigeria, on forum non conveniens grounds. Motion granted in part, denied in part.

Reasoning/Arguments The TVPA does not supplant other causes of action that can be brought under the ATCA's jurisdictional umbrella. Id. at 4 ("[C]laims based on torture or summary executions do not

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exhaust the list of actions that may appropriately be covered by section 1350 [the ATCA]. That statute should remain intact to permit suits based on other norms that already exist or may ripen in the future into rules of customary international law."). An alien plaintiff basing federal jurisdiction on the ATCA need not also assert a claim under, or comply with the terms of, the TVPA--all that is required is that she allege a tort committed in violation of international law, as plaintiffs here have done. In sum, because plaintiffs have not alleged a TVPA claim, the TVPA's exhaustion requirement does not apply. H.R.Rep. No. 102-367, pt. 1, at 3 (1991) ("Judicial protections against flagrant human rights violations are often least effective in those countries where such abuses are most prevalent. A state that practices torture and summary execution is not one that adheres to the rule of law. The general collapse of democratic institutions characteristic of countries scourged by massive violations of fundamental rights rarely leaves the judiciary intact."). In light of his failure to do so, and mindful that "the plaintiff's choice of forum should rarely be disturbed," the Court declines to exercise its discretion to dismiss this action on forum non conveniens grounds. Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 91 L.Ed. 1055 (1947).


Customary Law Analysis

Defenses Other Information of Interest

CASE In re African-American Slave Descendants Litigation; 2004

WL 112646 N.D.Ill.,2004. Jan. 26, 2004.

Judge Hon. Charles R. Norgle Appointed by President Reagan

Summary of Facts: Plaintiffs, identifying themselves as formerly enslaved African- Americans or descendants of formerly enslaved

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African-Americans, brought nine actions in several districts, seeking monetary and injunctive relief against various corporate defendants for present and past wrongs in connection with the institution of slavery. Upon motion of the defendants, actions were consolidated, by the Judicial Panel on Multidistrict Litigation, 231 F.Supp.2d 1357, for pretrial proceedings in the United States District Court for the Northern District of Illinois. Defendants moved to dismiss.

Holdings (1) plaintiffs lacked standing to bring suit; (2) actions presented a non-justiciable political question; (3) action failed to state a claim upon which relief could be granted; and (4) claims in action were barred by statute of limitations. Motion granted.

Reasoning/Arguments Plaintiffs who alleged derivative injuries as result of the enslavement of their ancestors failed to establish any personal, concrete, and particularized injury, as required to have standing to bring suit against organizations alleged to have profited from slavery. U.S.C.A Const. Art. 3, § 2, cl. 1. Plaintiffs who alleged the loss of economic wealth which would have resulted from their ancestors' labor, if not for those ancestors' enslavement, failed to establish any personal injury, as required to have standing to bring suit against organizations alleged to have profited from slavery; alleged injuries were conjectural and speculative. U.S.C.A Const. Art. 3, § 2, cl. 1. Plaintiffs who alleged the loss of economic wealth which would have resulted from their ancestors' labor, if not for those ancestors' enslavement, failed to establish any personal injury, as required to have standing to bring suit against organizations alleged to have profited from slavery; alleged injuries were conjectural and speculative. U.S.C.A Const. Art. 3, § 2, cl. 1. The non-justiciability of a political question is based primarily on the constitutional principle of separation of powers inherent in the text of the Constitution and the policy of judicial self-restraint. In determining whether a matter raises political questions which the court must decline to address, court must examine the following factors: (1) a demonstrable constitutional

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commitment of the issue to a coordinate political department; (2) a lack of judicially discoverable and manageable standards for resolving it; (3) the impossibility of deciding without first making a policy determination of a kind clearly for nonjudicial discretion; (4) impossibility of a court's independent resolution of the issue without expressing lack of respect due coordinate branches of government; (5) an unusual need for unquestioning adherence to a political decision already made; or (6) the potential for embarrassment from multifarious pronouncements by various departments on one question. Claims alleging violation of Alien Tort Claims Act (ATCA), brought in action seeking reparations from private organizations for injuries caused to plaintiffs and their ancestors due to slavery, were time-barred even though statute contained no limitations period; claims accrued, at the latest, by the formal end of chattel slavery in the United States. 28 U.S.C.A. § 1350. Claims alleging crimes against humanity, brought in action seeking reparations from private organizations, for injuries caused to plaintiffs and their ancestors due to slavery, failed to identify an actionable private claim; the United States was not a signatory to any international treaty declaring slavery a crime against humanity, and there was no U.S. statute establishing a private right of action for claims based upon slavery as a crime against humanity. A private right of action based on international law may only be based on (1) self-executing treaties, or (2) express statutory grants.


Plaintiffs contended that since slavery has been deemed a crime against humanity according to international law, the doctrine of jus cogens applied, making this claim enforceable against parties in the United States. There are only two bases for establishing a private right of action based on international law: (1) self-executing treaties and (2) express statutory grants. See, e.g., Dreyfus v. Von Finck, 534 F.2d 24, 29-31 (2d Cir.1976). First, the United States is not a signatory to any international treaty declaring slavery a crime against humanity. Second, there is no United States statute establishing a private

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right of action for claims based upon slavery as a crime against humanity. Therefore, Plaintiffs cannot a assert a private claim for crimes against humanity.


Defenses US not a signatory to any international treaty declaring slavery a crime against humanity


Generally, where a statute establishing a cause of action contains no statute of limitations (here, the ATCA), court should apply the most closely analogous statute of limitations under state law; however, court should apply the limitations period provided by an analogous federal law when it determines that either (1) a rule from elsewhere in federal law provides a closer analogy than available state law, or (2) the application of the state limitations period would frustrate or interfere with the implementation of national policies.

CASE Aguinda v. Texaco, Inc.

142 F.Supp.2d 534 S.D.N.Y.,2001

Judge Hon. Jed S. Rakoff, appointed in 1996 by President Clinton Summary of Facts: Citizens of Peru and Ecuador brought suit alleging that oil

company polluted rain forests and rivers in those two countries, causing environmental damage and personal injuries.

Holdings (1) Ecuador was adequate alternate forum; (2) Ecuadorian law, providing that filing of lawsuit outside of country precluding bringing of similar action in Ecuador, did not preclude dismissal; (3) private and public factors favored dismissal and (4) presence of claim under Alien Tort Claims Act (ATCA) did not preclude dismissal. Case dismissed.

Reasoning/Arguments Int’l Law Norms Federal courts should exercise extreme caution when

adjudicating environmental claims under international law to insure that environmental policies of the United States do not displace environmental policies of other governments

Customary Law Analysis the [ATCA] 'applies only to shockingly egregious violations of universally recognized principles of international law

Defenses Forum non conveniens Other Info of Interest

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CASE Ahmed v. Hoque Not Reported in F.Supp.2d S.D.N.Y.,2002. Aug. 23, 2002.

Judge Hon. Denise L. Cote Appointed by Pres. Clinton

Summary of Facts: Former domestic employee, who was foreign citizen, brought action against foreign minister to the United Nations, alleging that minister enslaved and confined him, in violation of federal laws, and New York state labor laws, international treaties and conventions, and the customary law of nations. Foreign minister moved for dismissal, on grounds of diplomatic immunity.

Holdings Foreign minister was entitled to full diplomatic immunity. Dismissed.

Reasoning/Arguments Assertion of a cause of action pursuant to the Alien Tort Claims Act (ATCA) could not override United Nations foreign minister's properly asserted diplomatic immunity from suit.



Defenses CASE Ahmed v. Goldberg

2001 WL 1842390 Judge Alex R. Munson, appointed in 1988 by President Reagan Summary of Facts: Plaintiffs allege the failure of the CNMI and the United States

to provide asylum/refugee procedures and protection from refoulement in the CNMI violates the 1967 Protocol Relating to the Status of Refugees ("Protocol") and amounts to arbitrary detention in violation of the laws of nations.

Holdings ATCA claims dismissed: (1) there is no waiver of sovereign immunity, and (2) plaintiffs fail to state a violation of laws of nations.

Reasoning/Arguments Plaintiff has failed to state a claim for relief based on the ATCA because he has not sufficiently alleged a violation of international law by defendant. Section 702(e) of the Restatement states "[a] state violates international law if, as a matter of state policy, it practices, encourages, or condones ... prolonged arbitrary detention ." Plaintiff has not made such a direct charging allegation against the defendant, either in the background allegations or in the counts. In fact, counts one and two contain no reference to international law except to

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invoke the ATCA. Int’l Law Norms Plaintiffs have not, however, stated any cognizable tort claims

against defendant based on international law because their claims for damages are based on the conflict between U.S. domestic law and customary international law principles.

Customary Law Analysis Defenses Other Info of Interest CASE Aldana v. Fresh Del Monte Produce, Inc.

2003 WL 23205157 S.D.Fla.,2003. Dec. 12, 2003.

Judge Hon. MORENO, District J. Appointed by President Bush (in 1990).

Summary of Facts: Guatemalan citizens brought action under Alien Tort Claims Act (ATCA) against owner and operators of Guatemalan banana plantation, claiming that defendants were active participants in torture and other human rights violations designed to put an end to their leadership in trade union activities.

Holdings (1) allegations of mistreatment did not amount to torture actionable under ATCA; (2) eight-hour detention of labor unionists by a non-governmental security force was not a violation of the international norm against arbitrary detention so as to be actionable under ATCA; (3) right to associate and organize was not a universally recognized norms of international law, and therefore alleged violation of that right was not actionable under ATCA; (4) labor unionists failed to sufficiently allege that defendants' conduct was under the color of official authority; and (5) diversity of citizenship was lacking for jurisdictional purposes.

Reasoning/Arguments Alien Tort Claims Act (ATCA) creates both subject matter jurisdiction and a private right of action. 28 U.S.C.A. § 1350. Alien Tort Claims Act (ATCA) requires that a more searching review of the merits to establish jurisdiction than is required under the more flexible "arising under" formula of statute governing federal question jurisdiction; jurisdictional concerns are not satisfied by merely alleging a colorable violation of the

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law of nations, rather, heightened pleading standard requires that the complaint identify facts showing defendants violated a specific international law. 28 U.S.C.A. § 1350; 28 U.S.C.A. § 1331. Even if certain conduct is universally proscribed by States in their respective domestic legal regimes that fact alone does not automatically create an actionable violation of international law under the Alien Tort Claims Act (ATCA); stringent and rigorous standards are applied by courts in ATCA cases. The tort pled must be "definable, obligatory (rather than hortatory) and universally condemned." Forti, 672 F.Supp. at 1539-41. To satisfy this specificity requirement, the following is required: (1) no state condones the act in question, and there is a recognizable "universal" consensus of prohibition against it; (2) there are sufficient criteria to determine whether a given action amounts to the prohibited act and thus violates the norm; and (3) the prohibition against it is non-derogable and therefore binding at all times upon all actors. Xuncax v. Gramajo, 886 F.Supp. 162, 184 (D.Mass.1995). Citing sources of international law that merely refer to a general sense of responsibility and state abstract rights and liberties devoid of articulable or discernable standards and regulations to identify practices that constitute international abuses or torts is insufficient to support a claim that a particular conduct is universally proscribed by the law of nations so as to be actionable under Alien Tort Claims Act (ATCA). 28 U.S.C.A. § 1350. Cases construing the scope of the ATCA and TVPA demonstrate that ordinary torts--even those intentionally inflicted out of malice--are insufficient to permit federal jurisdiction. See, e.g., Eastman Kodak Co., 978 F.Supp. at 1092 (S.D.Fla.1997) (noting that "merely because a particular provision of an international convention forbids a particular sort of conduct does not make that conduct a violation of the law of nations cognizable under the ATCA."). “What the Plaintiffs ask the Court to do is to find that an eight-hour kidnapping by a shadowy 'security force', accompanied by threats of death, is actionable under the ATCA. Yet, this Court's review of other ATCA cases confirms that the added quality of egregiousness is what confers subject matter jurisdiction under the ATCA. Despite Plaintiffs best efforts at

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characterizing the October 13th events, the essential facts as alleged do not rise to a level of conduct actionable under the ATCA.” Right to Organize and Associate: the Court notes that a recent opinion in a neighboring district court has recognized that the right to associate is actionable under the ATCA, it must depart from its reasoning on this issue. Estate of Locarno v. Drummond, 256 F.Supp.2d 1250 (N.D.Ala.2003) (relying on ILO Conventions 87 and 88 and ICCPR Article 22 in "reluctantly" finding that right to associate and organize are actionable torts under the ATCA). The court voiced caution in finding that the right to associate was actionable at a preliminary stage of the proceedings. Id. (emphasis added). Further, the decisions did not grapple with the essential amorphous nature of this right and attempt to define what conduct falls afoul of these claimed rights. Therefore, this Court declines to adopt the Drummond court's reasoning.


Under Alien Tort Claims Act (ATCA), the "law of nations" refers to a body of law known as customary international law; conduct violates the "law of the nations" if it contravenes well-established, universally recognized norms of international law. 28 U.S.C.A. § 1350. In United States v. Smith, 18 U.S. (5 Wheat.) 153, 160-61, 5 L.Ed. 57 (1820), the Supreme Court counseled that the law of nations "may be ascertained by consulting the works of jurists, writing professedly on public law; or by the general usage and practice of nations; or by judicial decisions recognising and enforcing that law."


For purposes of Alien Tort Claims Act (ATCA), customary international law is composed only of those rules that States universally abide by, or accede to, out of a sense of legal obligation and mutual concern. 28 U.S.C.A. § 1350 Right to associate and organize was not a universally recognized norms of international law, and therefore alleged violation of that right was not actionable under Alien Tort Claims Act (ATCA). Alleged mistreatment and unlawful detention of labor unionists by security force employed by owner of Guatemalan banana plantation did not constitute a "crime against humanity" actionable under Alien Tort Claims Act (ATCA). Fact that Guatemala had laws permitting private security forces did not by itself create state action for purposes of establishing

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jurisdiction over private corporation under Alien Tort Claims Act (ATCA) for actions taken on its behalf by the security force Mere acquiescence of a state official in the actions of a private party is not sufficient to establish state action for purposes of establishing jurisdiction over private party under Alien Tort Claims Act (ATCA).

Defenses Citing sources of international law that merely refer to a general sense of responsibility and state abstract rights and liberties devoid of articulable or discernable standards and regulations to identify practices that constitute international abuses or torts is insufficient to support a claim that a particular conduct is universally proscribed by the law of nations so as to be actionable under Alien Tort Claims Act (ATCA). 28 U.S.C.A. § 1350. .


CASE Al Odah v. U.S.

321 F.3d 1134 C.A.D.C.,2003. Decided March 11, 2003.

Judge RANDOLPH, Circuit Judge, Appointed by Pres. Bush (in 1990)

Summary of Facts: Aliens being detained by the United States government at the U.S. Naval Base at Guantanamo Bay, Cuba, brought actions contesting legality and conditions of their confinement.

Holdings The United States District Court for the District of Columbia, Colleen Kollar-Kotelly, J., 215 F.Supp.2d 55, dismissed for lack of jurisdiction, and appeal was taken. The Court of Appeals, Randolph, Circuit Judge, held that privilege of litigation did not extend to aliens in military custody outside of United States territory.

Reasoning/Arguments Federal court lacked jurisdiction, under Alien Tort Act, over claims that aliens were being detained at Guantanamo Naval Base, Cuba, under conditions violative of treaties and international law; privilege of litigation did not extend to aliens in military custody outside of United States territory. 28 U.S.C.A. § 1350. In addition to seeking relief explicitly in the nature of habeas corpus, the detainees sued for injunctions and declaratory judgments under the Alien Tort Act, 28 U.S.C. § 1350, alleging that the United States is confining them in violation of treaties

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and international law. The holding in Eisentrager - that "the privilege of litigation" does not extend to aliens in military custody who have no presence in "any territory over which the United States is sovereign" (339 U.S. at 777-78, 70 S.Ct. at 943) -dooms these additional causes of action, even if they deal only with conditions of confinement and do not sound in habeas. See Wolff v. McDonnell, 418 U.S. 539, 554-55, 94 S.Ct. 2963, 2973-74, 41 L.Ed.2d 935 (1974); Brown v. Plaut, 131 F.3d 163, 167 (D.C.Cir.1997).




CASE Alomang v. Freeport-McMoran Inc. 1996 WL 601431

E.D.La.,1996. Judge Hon. Stanwood R. Duval Jr., appointed in 1994 by President

Clinton. Summary of Facts: Yosofa Alomang filed an action on behalf of herself and those

similarly situated against Freeport in Louisiana State Court, Civil District Court for the Parish of New Orleans on June 19, 1996. Alomang's complaint alleges that Freeport has engaged in human rights violations, cultural genocide, and environmental violations through its corporate policies and conduct at the Grasberg Mine, located in Irian Jaya, Indonesia. Alomang claims that she is entitled to relief under Louisiana state tort law, specifically articles 2317, 2315, 2315.3 and 667. She requests damages and equitable relief including an order that Freeport change its corporate environmental and security policies, cease and desist all open pit mining operations, and improve relations with indigenous people through the implementation of mediation panels and the creation of a trust fund for their benefit.

Holdings Reasoning/Arguments The Alien Tort Statute provides an independent basis of

federal question jurisdiction to redress human rights violations. there is simply no indication that the Alien Tort Statute makes federal courts the exclusive forum for all tort

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claims asserted by aliens. Nothing in § 1350 points to a manifest congressional intent that the Alien Tort Statute completely preempts state law based remedies available to aliens for violation of state law. In sum, the Alien Tort Statute has not stripped Louisiana state court of its jurisdiction over Alomang's state tort claims or converted her state tort claims to ones arising under federal law.

Int’l Law Norms Customary Law Analysis Defenses Lack of subject matter jurisdiction (no federal question), act

of state doctrine. Other Info of Interest CASE Alvarez-Machain v. U.S.

331 F.3d 604 C.A.9 (Cal.),2003. Argued and Submitted June 11, 2001.

Judge Hon. Mary Margaret McKeown Appointed by Pres. Clinton

Summary of Facts: Plaintiff, a Mexican national acquitted of murder after being abducted and transported to U.S. to face prosecution, brought action under Alien Tort Claims Act (ATCA) and Federal Tort Claims Act (FTCA) against United States, Drug Enforcement Agency (DEA) agents, former Mexican policeman, and Mexican civilians, alleging that his abduction violated his civil rights. The District Court partially granted defendants' motion to dismiss, and the Court of Appeals, 107 F.3d 696, reversed in part and remanded. On remand, the United States District Court for the Central District of California, Stephen V. Wilson, J., entered summary judgment against former policeman, substituted United States for DEA agents, and dismissed abductee's FTCA claims. Abductee and policeman appealed.

Holdings The Court of Appeals, McKeown, Circuit Judge, held that: (1) Abductee lacked standing to bring ATCA claim on basis of violation of Mexican sovereignty; (2) Abductor could be held liable for kidnapping under ATCA; (3) United States was properly substituted for individual government defendants; (4) As a matter of first impression, federal common law, rather than Mexican law, applied in determination of damages;

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(5) Abductor's liability to abductee was limited to period from unlawful abduction until abductee's lawful arrest in U.S.; (6) foreign activities exception to FTCA, headquarters doctrine, and intentional tort exception did not bar abductee's claims; and (7) DEA officers were liable for false arrest. Affirmed in part, reversed in part, and remanded. Fisher, Circuit Judge, filed concurring opinion, in which Schroeder, Chief Judge, and Goodwin, Thomas, and Paez, Circuit Judges, joined. O'Scannlain, Circuit Judge, filed dissenting opinion, in which Rymer, Kleinfeld, and Tallman, Circuit Judges, joined. Gould, Circuit Judge, filed dissenting opinion.

Reasoning/Arguments Mexican citizen's kidnapping in Mexico, at behest of Drug Enforcement Agency (DEA), and his transfer to United States for arrest, violated law of nations, such that abductor could be held liable for kidnapping under Alien Tort Claims Act (ATCA), even if DEA had extraterritorial criminal jurisdiction; arrest warrant issued by a U.S. court did not authorize arrests worldwide, and Congress did not give DEA unlimited enforcement powers abroad. 28 U.S.C.A. § 1350; Restatement (Third) of Foreign Relations Laws § 432. The legal rights on which Alvarez bases his claim, and which the ATCA recognizes, are those that protect the individual from tortious conduct. By its terms, the ATCA provides only for suits by individual aliens; it does not allow for an individual to vindicate the rights of a foreign government.


Federal common law, rather than Mexican law, applied in determination, under Alien Tort Claims Act (ATCA), of damages awarded to abductee kidnapped by Mexican national acting on behalf of Drug Enforcement Agency (DEA) officers, even though abduction occurred in Mexico; federal question jurisdiction was predicated on ATCA, limitations on damages under Mexican law--including unavailability of punitive damages--were not consistent with policy underlying ATCA, and United States contacts and interests were important relative to those of Mexico. 28 U.S.C.A. § 1350; Restatement (Second) of Conflict of Laws §§ 6, 145. Federal common law, rather than California law, applied in determination, under Alien Tort Claims Act (ATCA), of damages awarded to abductee kidnapped by Mexican national

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acting on behalf of Drug Enforcement Agency (DEA) officers, even though abduction occurred in Mexico; ATCA invoked international law principles of universal concern. 28 U.S.C.A. § 1350.


Transborder kidnapping does not violate customary international human rights law, as required to be actionable under Alien Tort Claims Act (ATCA); prohibition of such acts has not reached level of acceptance in the international community sufficient to qualify as universal and obligatory, and United States has affirmatively and definitively rejected this principle. Internationally recognized norm prohibiting arbitrary arrest and detention is not triggered by any freestanding temporal requirement or time period. ”While jus cogens and customary international law are related, they differ in one important respect. Customary international law, like international law defined by treaties and other international agreements, rests on the consent of states. A state that persistently objects to a norm of customary international law that other states accept is not bound by that norm .... In contrast, jus cogens embraces customary laws considered binding on all nations and is derived from values taken to be fundamental by the international community, rather than from the fortuitous or selfinterested choices of nations. Whereas customary international law derives solely from the consent of states, the fundamental and universal norms constituting jus cogens transcend such consent.... Because jus cogens norms do not depend solely on the consent of states for their binding force, they enjoy the highest status within international law.” In Marcos II, we were careful to limit actionable violations to those international norms that are "specific, universal, and obligatory." This formulation, which lays the foundation for our approach to international norms, is in keeping with the narrow scope of ATCA jurisdiction and the general practice of limiting judicial review to those areas of international law that have achieved sufficient consensus to merit application by a domestic tribunal. The notion of jus cogens norms was not part of the legal

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landscape when Congress enacted the ATCA in 1789. See Brownlie, supra, at 516 (explaining the modern evolution of jus cogens). Thus, to restrict actionable violations of international law to only those claims that fall within the categorical universe known as jus cogens would deviate from both the history and text of the ATCA. Unlike transborder arrests, there exists a clear and universally recognized norm prohibiting arbitrary arrest and detention. This prohibition is codified in every major comprehensive human rights instrument and is reflected in at least 119 national constitutions. See M. Cherif Bassiouni, Human Rights in the Context of Criminal Justice: Identifying International Procedural Protections and Equivalent Protections in National Constitutions, 3 Duke J. Comp. & Int'l L. 235, 260-61 (1993). The Universal Declaration, perhaps the most well-recognized explication of international human rights norms, provides that "[n]o one shall be subjected to arbitrary arrest, detention, or exile," Universal Declaration, art. 9, and the ICCPR, which the United States has ratified, unequivocally obliges states parties to refrain from "arbitrary arrest or detention." ICCPR, art. 9.

Defenses The United States does not recognize a prohibition against transborder kidnapping, nor can it be said that there is international acceptance of such a norm. The Restatement on Foreign Relations: "None of the international human rights conventions to date ... provides that forcible abduction or irregular extradition is a violation of international human rights law." Restatement on Foreign Relations § 432 n. 1.


Hon. Diarmuid F. O'Scannlain, Circuit Judge, with whom Circuit Judges RYMER, KLEINFELD, and TALLMAN join,

dissenting:

“We are now in the midst of a global war on terrorism, a mission that our political branches have deemed necessary to conduct throughout the world, sometimes with tepid or even non-existent cooperation from foreign nations. With this context in mind, our court today commands that a foreign-national criminal who was apprehended abroad pursuant to a legally valid indictment is entitled to sue our government for money damages. In so doing, and despite its protestations to the contrary, the majority has left the door open for the objects

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of our international war on terrorism to do the same.” “… a proper historical understanding of the ATCA compels the conclusion that no claim can prevail where the United States, through its political branches, does not acquiesce in an international norm.” “The requirement of "universality" constitutes an insurmountable bar to recovery for transborder arrest. I focus in particular on the corollary of this requirement: a norm of international law not recognized by the United States cannot be deemed a universal one, actionable in this nation's courts.” ”A "specific" norm, therefore, is one sufficiently " 'definable,' " Marcos II, 25 F.3d at 1475 (quoting with approval Forti v. Suarez- Mason, 672 F.Supp. 1531, 1539-40 (N.D.Cal.1987)), such that its violation can be objectively ascertained. To be sure, the nations of the world need not have commonly agreed upon an exhaustive catalogue of every variation, but the norm itself must have become "clear and unambiguous." Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 819-20 (D.C.Cir.1984) (Bork, J., concurring) (quoting Filartiga v. Pena-Irala, 630 F.2d 876, 884 (2d Cir.1980).” The ATCA's conformity with Article III rests on the incorporation of the law of nations as federal common law--particularly in a case like this one, where neither alienage, nor admiralty, nor any of the other headings of Article III provides a basis for federal jurisdiction. It is for this reason that an ATCA plaintiff relying on the law of nations (as opposed to a treaty) must allege a tort that violates some norm of international law recognized by the United States. At least one of the few Supreme Court opinions to consider the ATCA directly appears to have recognized as much. In O'Reilly De Camara v. Brooke, 209 U.S. 45, 28 S.Ct. 439, 52 L.Ed. 676 (1908), Justice Holmes wrote for a unanimous Court in affirming the dismissal of an ATCA complaint that alleged the tortious destruction of a hereditary title during the Spanish-American War. Id. at 48-49, 28 S.Ct. 439. Although the Court did not directly decide whether the plaintiff had alleged a tort cognizable under the ATCA, see id. at 52-53, 28 S.Ct. 439, it did make the following comment on that question: "[W]e think it plain that where, as here, the jurisdiction of the case depends upon the establishment of a 'tort only in violation of the law of nations, or of a treaty of the United States,' it is impossible for the courts to declare an act a tort of that kind when the

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Executive, Congress, and the treaty-making power all have adopted the act."

CASE Aguinda v. Texaco, Inc.

303 F.3d 470 C.A.2 (N.Y.),2002. Decided Aug. 16, 2002.

Judge Hon. Pierre N. Leval Appointed by Pres. Clinton

Summary of Facts: Citizens of Peru and Ecuador brought two putative class actions alleging that oil company polluted rain forests and rivers in those two countries, causing environmental damage and personal injuries. The United States District Court for the Southern District of New York, Jed S. Rakoff, J., 945 F.Supp. 625, dismissed complaint in one action on grounds of international comity, forum non conveniens, and failure to join indispensable parties, and denied reconsideration and Ecuador's motion to intervene, 175 F.R.D. 50. After second complaint was dismissed and citizens appealed, the Court of Appeals, 157 F.3d 153, vacated and remanded. Oil company renewed motion for dismissal on forum non conveniens grounds, after supplying additional information and consenting to suit in Ecuador and Peru. The District Court, 142 F.Supp.2d 534, granted motion. Citizens appealed.

Holdings (1) courts of Ecuador provided adequate alternative forum for citizens' claims, and (2) balance of private and public interest factors weighed strongly in favor of trial in Ecuadorian courts, warranting conditioned dismissal on forum non conveniens grounds.

Reasoning/Arguments Following our decision, Ecuador's ambassador to the United States informed the district court that the Republic "is not willing, under any circumstance, to waive its sovereign immunity and be subject to rulings by Courts in the United States.... Therefore, the intervention of the Republic of Ecuador as a party is not necessary." Ecuador's attorney general agreed to the same view in a separately submitted declaration, stating that Ecuador "will accept any decision of the U.S. courts as to whether they have jurisdiction over the matter or not, ... [b]ut the Republic will not accept or agree in any manner to become or be treated as a party to the Lawsuit." Texaco consented to personal jurisdiction in Ecuador as to the

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Aquinda plaintiffs and in Peru or Ecuador as to the Jota plaintiffs.




CASE Anderman v. Federal Republic of Austria

256 F.Supp.2d 1098 C.D.Cal.,2003. April 15, 2003.

Judge Hon. Florence M. Cooper, Appointed by Pres. Clinton

Summary of Facts: Plaintiffs, Jewish citizens or residents of Austria or survivors of same, brought action against Austrian government, insurance companies, and others, under, inter alia, Foreign Sovereign Immunities Act (FSIA) and Alien Tort Claims Act (ATCA), on basis of deprivations of property and failures to pay insurance claims arising during period of Nazi control of Austria.

Holdings (1) Austria did not waive sovereign immunity; (2) complaint sufficiently alleged claim under commercial activities exception to sovereign immunity; (3) complaint did not sufficiently allege a claim under expropriation exception to sovereign immunity, except as to one plaintiff; and (4) claims presented nonjusticiable political questions. Dismissed.

Reasoning/Arguments The foreign state against whom a claim is made pursuant to the Foreign Sovereign Immunities Act (FSIA) need not be the sovereign that expropriated the property at issue. 28 U.S.C.A. § 1605(a)(3). In action brought against government of Austria under Foreign Sovereign Immunities Act (FSIA), alleging that Austrian government, during era of Nazi control, deprived Austrian Jews of their property, complaint failed to allege that expropriated property, or property exchanged for such, was in the United States in connection with a commercial activity carried on in the U.S., as would warrant application of expropriation exception to Austria's sovereign immunity

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"The executive branch has always taken the position that claims arising out of World War II must be resolved through government-to-government negotiations." Iwanowa, 67 F.Supp.2d at 486.




Focuses on FSIA.

CASE Argentine Republic v. Amerada Hess Shipping Corp., 488

U.S. 428 (1989)

Judge REHNQUIST, Appointed by Nixon Summary of Facts: Petitioner Argentina challenged the judgment of the United

States Court of Appeals for the Second Circuit, which held that the district court had subject-matter jurisdiction under the Foreign Sovereign Immunities Act of 1976 (FSIA), 28 U.S.C.S. § 1330 et seq., and the Alien Tort Statute, 28 U.S.C.S. § 1350, to hear respondent Liberian corporations' tort action against it. Upon certiorari it was argued that the FSIA denied jurisdiction.

Holdings The Court reversed the judgment of the circuit court and affirmed the district court's dismissal of respondent Liberian corporations' tort action against petitioner foreign nation.

Reasoning/Arguments The Court held that the Foreign Sovereign Immunities Act of 1976 was solely controlling and that it denied subject-matter jurisdiction in the specific circumstances.

Int’l Law Norms “In 1952, the State Department adopted the view that foreign states could be sued in United States courts for their commercial acts, but not for their public acts. For the most part, the Foreign Sovereign Immunities Act of 1976, 28 U.S.C.S. § 1330 et seq., "codifies" this so-called "restrictive" theory of foreign sovereign immunity.”

Customary Law Analysis Defenses Other Info of Interest

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CASE An v. Chun 134 F.3d 376 (Table) C.A.9 (Wash.),1998.

Judge Hon. Thomas M. Reavley, appointed in 1979 by President Carter

Summary of Facts: Young-Kae An brought suit against General Doo-Whan Chun, General Tae Woo Roh, and several other military leaders (appellees) on behalf of his deceased father, Byung Wha An, the police chief of Kwangju, Korea, alleging that the appellees tortured his father to death.

Holdings Court lacks personal jurisdiction, cannot reach other questions.Reasoning/Arguments Int’l Law Norms Customary Law Analysis Defenses Other Info of Interest Unpublished CASE Amerada Hess Shipping Corp. v. Argentine Republic, 830

F.2d 421 (2nd Cir. 1987)

Judge FEINBERG, Appointed by

Summary of Facts: Appellants, oil and shipping companies, sought review of a decision by the United States District Court for the Southern District of New York, which dismissed their complaint for lack of jurisdiction under the Foreign Sovereign Immunities Act.

Holdings The court reversed the dismissal of the complaint of appellants, oil and shipping companies, on the basis that the Alien Tort Statute provided jurisdiction over appellee, the Argentine Republic, and remanded to the district court for further proceedings.

Reasoning/Arguments The court reversed and remanded, holding that under international law, the Alien Tort Statute, 28 U.S.C.S. § 1350, provided jurisdiction for its action against the Argentine Republic, that the FISA did not preempt the jurisdictional grant of the Alien Tort Statute because the legislative history of the FISA did not indicate an intent to provide sovereign immunity for violations of international law outside the commercial context, and that the constitutional requirements for personal jurisdiction over the Argentine Republic were satisfied.

Int’l Law Norms In construing the Alien Tort Statute, a court must interpret international law not as it was in 1789, but as it has evolved

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and exists among the nations of the world today. The Alien Tort Statute is no more than a jurisdictional grant based on international law. The evolving standards of international law govern who is within the statute's jurisdictional grant as clearly as they govern what conduct creates jurisdiction

Customary Law Analysis Defenses Other Info of Interest CASE Amlon Metals, Inc. v. FMC Corp.,

775 F.Supp. 668 (S.D.N.Y. 1991)

Judge Hon. Conner, William Curtis, Appointed by Pres. Richard M. Nixon

Summary of Facts: This action stems from a commercial contract for the

recycling of copper residue produced by defendant FMC Corporation ("FMC"). The matter is currently before the Court on FMC's motion to dismiss plaintiffs' claims under the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. §§ 6901 et seq. (1982 & Supp. III 1985), and Alien Tort Statute, 28 U.S.C. § 1350 (1982 & Supp. III 1985), on the grounds that this Court lacks jurisdiction over the claims pursuant to Fed. R. Civ. P. 12(b)(1) and that the claims fail to state a claim upon which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6).

Holdings Because the complaint contains no clear allegation of a

violation of the law of nations, plaintiffs' second cause of action is dismissed.

“When considering Alien Tort Statute claims on a 12(b)(1) motion, courts typically engage "in a more searching preliminary review of the merits than is required, for example under the more flexible "arising under formulation." Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980). This Court will do likewise.”

Reasoning/Arguments

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“An allegation of conduct constituting a treaty violation or a violation of the law of nations is a threshold jurisdictional requirement under the Alien Tort Statute, 28 U.S.C. § 1350. See Filartiga, 630 F.2d at 880. If this requirement is not met, an action under section 1350 cannot be maintained. See id. at 887. Here, the complaint does not allege any treaty violation that is actionable under the Alien Tort Statute. Therefore, the complaint must allege facts that, if true, would constitute a violation of the law of nations.”


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Customary Law Analysis ……………………………

Defenses …………………………….


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CASE Anonymous v. I.N.S.

122 F.3d 1055 (Table) C.A.2 (N.Y.),1997. Judge Hon. Wilfred Feinberg, appointed in 1966 by President

Johnson Summary of Facts: Plaintiffs are ten Israeli nationals residing in New York who

claim eligibility for political asylum. They filed suit against the Immigration and Naturalization Service ("INS") in the United States District Court for the Southern District of New York (Chin, J.) alleging that the INS's denial of asylum to Israeli nationals violates the United States Constitution, the Federal Tort Claims Act, 28 U.S.C. § 1346(b), the United Nations Convention Relating to the Status of Refugees, the Protocol Relating to the Status of Refugees, and the Alien Tort Statute

Holdings District Court dismissed for lack of subject matter jurisdiction: aff’d in this case.

Reasoning/Arguments Well reasoned opinion, no reason to overturn. Int’l Law Norms Customary Law Analysis Defenses Other Info of Interest

CASE Bagguley v. Matthews,

1992 WL 160945 (D. KAN) Judge Hon. Richard D. Rogers, Appointed by Pres. Gerald

Ford Summary of Facts: Plaintiff inmate brought a civil rights action against

defendants, a warden and corrections officials, for violations of his rights under the due process clause. Defendants filed a motion to dismiss or for summary judgment

Holdings The court dismissed the inmate's action against defendants.

Reasoning/Arguments “The court likewise rejects plaintiff's assertion that this court may consider his claims under the Alien Tort Claims Act, 28 U.S.C. § 1350 (1988). This Act provides that district courts shall have original jurisdiction of a civil action by an alien for a tort committed in violation of a treaty of the United States. Plaintiff has not shown violation of a treaty.”


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Customary Law Analysis …………………………… Defenses …………………………….

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CASE Bagguley v. Bush,

953 F.2d 660 (C.A.D.C. 1991) Judge Hon. EDWARDS, SILBERMAN and WILLIAMS (PER

CURIAM) Summary of Facts: The court affirmed the decision of the district court that

affirmed the denial by the Attorney General of the prisoner's request to be transferred to his home country to serve the remainder of his sentence.

Holdings See Bagguley v. Bush, 1992 WL 160945

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CASE Bano v. Union Carbide Corp. 2000 WL 1225789

S.D.N.Y.,2000. Judge Hon. John F. Keenan, appointed in 1983 by President Reagan Summary of Facts: On the night of December 2-3, 1984, a deadly gas leak of

methyl isocyanate (MIC) from a chemical plant operated by Union Carbide India Limited ("UCIL") killed thousands of people in Bhopal, India, and injured several hundred thousand. Defendant Union Carbide Corporation ("Union Carbide"), a New York corporation with its principal place of business in Connecticut, owned 50.9% of UCIL's stock. Plaintiffs are survivors and next-of-kin of victims of the Bhopal Gas Plant disaster and allege: (1) Violations of international criminal law under the ATCA; (2) Racial discrimination in violation of international law under the ATCA; (3) Cruel, inhuman, and degrading treatment under the ATCA; (4) Violation of the rights to like, health, and security of the person under the ATCA; (5) Violations of international environmental rights under the ATCA.

Holdings Defendants’ motion to dismiss is granted, plaintiffs cross motion to strike defendants’ motion is denied. Plaintiffs lack standing to bring this action.

Reasoning/Arguments Plaintiffs have alleged violations of international criminal law—the ATCA only covers civil suits.

Int’l Law Norms Customary Law Analysis Defenses Other Info of Interest CASE Bano v. Union Carbide Corp.

273 F.3d 120 C.A.2 (N.Y.),2001. Decided Nov. 15, 2001.

Judge Hon. Robert D. Sack Appointed by Pres. Clinton

Summary of Facts: Victims of toxic gas disaster at chemical plant in India, their next-of-kin, and groups representing victims, brought suit against American chemical company and its former chief executive officer (CEO). Plaintiffs alleged that defendants' conduct leading up to the disaster violated various norms of international law, and sought relief under the Alien Tort Claims Act (ATCA). The United States District Court for the Southern District of New York, John F. Keenan, J., granted defendants' motions for summary judgment or for dismissal for failure to state a claim, and plaintiffs appealed.

Holdings (1) fugitive disentitlement doctrine was not applicable to

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defendants in federal district court who were fugitives from criminal prosecution in India; (2) settlement orders of the Supreme Court of India barred claims asserted under the Alien Tort Claims Act (ATCA) seeking "civil remedies" pertaining to unaddressed criminal liability arising from disaster; and (3) defendant did not materially breach settlement by refusing to submit to criminal prosecution in India. Affirmed in part; vacated in part and remanded.

Reasoning/Arguments Mostly a discussion of fugitive disentitlement and settlement. International Law Norms Discussed

Customary Law Analysis Defenses Other Information of Interest

CASE Bao Ge v. Li Peng 201 F.Supp.2d 14

D.D.C.,2000. Judge Hon. Thomas F. Hogan, appointed in 1982 by President

Reagan Summary of Facts: Chinese citizens who were allegedly forced to perform slave

labor in prison camps brought proposed class action suit against Chinese government entities and individuals, Bank of China, and private corporation whose soccer balls workers allegedly assembled.

Holdings (1) private corporation was not de facto state actor within Alien Tort Claims Act (ATCA); (2) forced slave labor was not such extreme form of egregious conduct as to confer jurisdiction over private corporation under private actor prong of ATCA; (3) jurisdiction did not lie under Torture Victim Protection Act against corporation; (4) supplemental jurisdiction could not be asserted over claims against private corporation absent basis to assert jurisdiction over Chinese entities under Foreign Sovereign Immunities Act (FSIA); and (5) jurisdiction did not exist against Bank of China under commercial activities exception to FSIA.

Reasoning/Arguments Act of State doctrine would apply to the actions of the Chinese government defendants in allegedly forcing prisoners to perform forced labor producing soccer balls, as relief would have required United States court to declare invalid official act of foreign sovereign. Foreign Sovereign Immunities Act (FSIA) provided exclusive basis for determining whether subject matter jurisdiction existed over Bank of China which,

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as agent or instrumentality of China, qualified as foreign state under FSIA.

Int’l Law Norms The law of nations may be ascertained by consulting the works of jurists, writing professedly on public law, by the general usage and practice of nations, or by judicial decisions recognizing and enforcing that law. A private actor can be found to have violated the law of nations, for purposes of federal subject matter jurisdiction under Alien Tort Claims Act (ATCA), through extreme forms of egregious misconduct, such as piracy and slavery. Forced prison labor is not a state practice proscribed by international law. Restatement (Third) of the Foreign Relations Law of the United States § 702.

Customary Law Analysis A rule of customary international law exists when there is general and consistent practice of states followed by them from a sense of legal obligation. Restatement (Third) of the Foreign Relations Law of the United States § 102.

Defenses Other Info of Interest CASE Bao Ge v. Li Peng 209 F.R.D. 250

D.D.C.,2000 Judge Hon. Thomas F. Hogan, appointed in 1982 by President

Reagan Summary of Facts: Four Chinese citizens appeared as potential class

representatives for this suit and seeks to represent a class of between 2,000 and 200,000 Chinese citizens who have been imprisoned in Chinese labor camps and allegedly forced to make Adidas soccer balls. Plaintiffs allege that the Chinese government imprisoned them without due process of law and forced them to engage in prison labor, including the production of soccer balls, allegedly bearing the Adidas logo. Plaintiffs additionally allege that defendants and the Chinese government had a business relationship that granted Adidas access to this prison labor.

Holdings Court granted defendants' motion to dismiss these claims, based upon a lack of subject matter jurisdiction. In this case, it denied motion for reconsideration.

Reasoning/Arguments No reasons given. Int’l Law Norms Customary Law Analysis Defenses Other Info of Interest CASE Beanal v. Freeport-McMoran, Inc. Not Reported in F.Supp.

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E.D.La.,1997 Judge Stanwood Duval, appointed in 1994 by President Clinton Summary of Facts: No facts offered: allegations of cultural genocide Holdings Dismisses first complaint for failure to state a claim, grants

leave to amend. Reasoning/Arguments Int’l Law Norms Customary Law Analysis Defenses Other Info of Interest CASE Beanal v. Freeport-McMoran, Inc. 197 F.3d 161

C.A.5 (La.),1999. Judge Carl E. Stewart, appointed in 1994 by President Clinton Summary of Facts: Indonesian citizen brought action against domestic

corporations conducting mining activities in the Republic of Indonesia, alleging environmental abuses, human rights violations and genocide under Alien Tort Statute (ATS) and Torture Victim Protection Act (TVPA).

Holdings (1) Indonesian citizen failed to state claims under ATS and TVPA for international human rights violations and genocide; (2) treaties and agreements which did not contain articulable environmental standards were insufficient sources of international law to form basis of international environmental law claim under ATS; and (3) conventions, agreements and declarations which failed to identify conduct that would constitute act of cultural genocide did not clearly establish international law proscribing cultural genocide so as to support claim under ATS.

Reasoning/Arguments Indonesian citizen failed to provide adequate factual specificity as required to state claims under Alien Tort Statute and Torture Victim Protection Act against domestic corporations which conducted mining activities in Indonesia, based on international human rights violations and genocide; complaint made conclusory allegations and was devoid of names, dates, locations, times or any facts that would put corporations on notice as to what conduct supported claims. International treaties and agreements which referred to general sense of environmental responsibility, stated abstract rights and liberties and were devoid of articulable environmental standards were insufficient sources of international law to form basis of international environmental law claim under Alien Tort Statute (ATS). International conventions, agreements, and declarations which made pronouncements of right to "enjoy culture," to "freely pursue" culture, or to

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cultural development and which failed to identify conduct that would constitute act of cultural genocide did not clearly establish international law proscribing cultural genocide so as to support claim under Alien Tort Statute (ATS)

Int’l Law Norms Law of nations is defined by customary usage and clearly articulated principles of international community. It is only when nations of world have demonstrated that the wrong is of mutual and not merely several concern, by means of express international accords, that a wrong generally recognized becomes international law violation within meaning of Alien Tort Statute (ATS). Alien Tort Statute (ATS) applies only to shockingly egregious violations of universally recognized principles of international law

Customary Law Analysis Defenses Other Info of Interest CASE Benjamins v. British European Airways, 572 F.2d 91 (2nd

Cir. 1978)

Judge LUMBARD, Eisenhower

Summary of Facts: Appeal arising out of the death of Dutch citizen residing in the US in an air crash disaster at Staines, England.

Holdings The court reversed the lower court order that dismissed appellant estate representative's wrongful death case and remanded for further proceedings because it found that appellant's cause of action arose under the Warsaw Convention, which allowed a United States court to have jurisdiction.

Reasoning/Arguments The court reversed the order of the lower court that dismissed appellant estate administrator's wrongful death case because it found that the lower court did have jurisdiction over the matter pursuant to the Warsaw Convention, Convention for the Unification of Certain Rules Relating to International Transportation by Air, June 27, 1934, art. 28(1), 49 Stat. 3000, T.S. No. 876. The court held that the Warsaw Convention provided for an action to be brought in the territory of one of the contracting parties, either the principal place of business of the air carrier, the place through which the contract was made, or the place of destination. The court determined that the deceased's widow purchased the airline ticket, the contract of carriage, within the United States and that this permitted a

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court of the United States to hear appellant's complaint. The court held that the Warsaw Convention provided appellant with a right of action and set forth the terms under which victims of airline crashes could recover damages.

Int’l Law Norms See reasoning “The Alien Tort Claims Act does not provide a basis for jurisdiction over this action. Without having to discuss the question of whether the wrongful death action against a carrier is essentially one in tort or in contract, we are satisfied that [Plaintiff’s] complaint alleges a violation of neither the law of nations nor any treaty of the United States.”

Customary Law Analysis Defenses Other Info of Interest CASE Bieregu v. Ashcroft

259 F.Supp.2d 342 D.N.J.,2003. May 1, 2003.

Judge Hon. Dickinson R. Debevoise, Appointed by Pres. Carter

Summary of Facts: Prisoner who was a Nigerian citizen brought in forma pauperis action against Attorney General, Drug Enforcement Agency (DEA), and Assistant United States Attorneys, asserting claims under the Alien Tort Claims Act (ATCA) and alleging violations of Vienna Convention on Consular Relations. “Plaintiff, a Nigerian citizen, states that he was arrested in November 1991, and was subsequently convicted for conspiracy to import and conspiracy to possess with intent to distribute a controlled substance in violation of United States law. Plaintiff also states that his property, including an automobile and $18,000 in United States currency, were seized and subsequently forfeited to the United States government. Plaintiff alleges that he was never, during his arrest, detention, trial, or subsequent incarceration advised of his right under Article 36 to consult with a consular official. He contends that the failure of Defendants to advise him of his right to consular notification under Article 36 caused him to be deprived of his right to counsel of his choice under the Sixth Amendment to the United States Constitution, resulting in his conviction and the forfeiture of his property.”

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Holdings (1) Prior determination that alien prisoner had received

effective assistance of counsel was entitled to preclusive effect; (2) Prisoner failed to state claim under ATCA or Federal Tort Claims Act (FTCA); and (3) Prisoner's FTCA claims accrued as of agents' failure to advise.

Reasoning/Arguments Assuming that a cause of action under the ATCA is exempt from the exclusive remedy provision of the Liability Reform Act, Plaintiff's claim is nevertheless subject to dismissal. The ATCA requires the commission of a tort in order to impose liability.


("To satisfy section 1350's jurisdictional threshold, a plaintiff must allege that a 'tort' was committed 'in violation' of international law or a treaty of the United States. Only those treaty provisions that would actually give rise to a tort action by reason of their violation are implicated by the Alien Tort Claims Act. Thus, a plaintiff may bring an action under section 1350 only for a tort committed in violation of a United States treaty, not for any violation of a treaty.") (citing Xuncax v. Gramajo, 886 F.Supp. 162, 181 (D.Mass.1995); Jones v. Petty Ray Geophysical Geosource, Inc., 722 F.Supp. 343, 348-49 (S.D.Texas 1989)).



CASE Brancaccio v. Reno 964 F.Supp. 1

D.D.C.,1997. Judge Hon. Stanley Sporkin, no info Summary of Facts: The prisoner was in a United States prison for violation of

federal narcotics law. The prisoner filed a request wit the attorney general for the transfer of his sentence to Canada pursuant to The Convention on the Transfer of Sentenced Persons (treaty), T.I.A.S. No. 10, 824. The attorney general denied the prisoner's request and the unit denied the prisoner's

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motion for reconsideration of the unit's decision to deny transfer.

Holdings The court granted the attorney general and the unit's motions to dismiss the prisoner's action. The court held that the prisoner failed to establish a violation of the treaty and therefore failed to establish jurisdiction under the Alien Tort Claims Act, 28 U.S.C.S. § 1350.

Reasoning/Arguments The attorney general was given unfettered discretion with respect to decision to transfer prisoners under the treaty and proper exercise of that discretion did not constitute a violation of the treaty. Jurisdiction was not established under the Administrative Procedure Act, 5 U.S.C.S. § 702, because decisions regarding the international transfer of prisoners constituted agency action committed to agency discretion by law and were therefore not reviewable according to 5 U.S.C.S. § 701(a)(2).

Int’l Law Norms Customary Law Analysis Defenses Other Info of Interest CASE Beanal v. Freeport-McMoRan, Inc. 969 F.Supp. 362

E.D.La.,1997. Judge Stanwood Duval, appointed in 1994 by President Clinton Summary of Facts: Indonesian citizen brought suit under the Alien Tort Statute

and the Torture Victim Protection Act (TVPA) against American corporations who owned subsidiary which operated open pit copper, gold and silver mine in Indonesia, alleging environmental torts, human rights abuses, and cultural genocide

Holdings (1) since plaintiff did not identify himself as a relative of any victim, he lacked standing under the Alien Tort Statute to sue on behalf of victims of "disappearance" or summary execution in Indonesia, inasmuch as plaintiff would have been unable to bring action under Louisiana wrongful death statute, which was most analogous state statute; (2) as member of the Amungme tribe, plaintiff had standing under the Alien Tort Statute and the TVPA to bring claims on his own behalf for cultural genocide of the Amungme tribe, certain human rights violations, and environmental torts; (3) plaintiff failed to state genocide claim under the Alien Tort Statute; (4) plaintiff failed to allege facts sufficient to establish state action necessary for nongenocide related human rights violations; (5) TVPA has not repealed by implication the Alien Tort Statute, either in whole or in part; (6) corporation is not an "individual"

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who can be held liable under the TVPA; and (7) plaintiff failed to state a claim for environmental violations upon which relief could be granted under the Alien Tort Statute.

Reasoning/Arguments Indonesian citizen who brought suit under the Alien Tort Statute against subsidiary of American corporation for human rights abuses in course of mining operation in Indonesia failed to allege facts sufficient to establish state action under symbiotic relationship test, based on allegations that Indonesian Government granted subsidiary long-term mining rights, was a major shareholder in subsidiary, and a principal source of corporate income.

Int’l Law Norms Individual found to have violated the law of nations may be held liable under the Alien Tort Statute. To be recognized as an international tort under Alien Tort Statute, the alleged violation must be definable, obligatory rather than hortatory, and universally condemned; in making its determination, court is guided by the sources from which customary international law is derived, including the usage of nations, judicial opinions and the works of jurists. State action is not required for all international torts covered by the Alien Tort Statute, as certain conduct, such as genocide, violates the law of nations whether committed by a state or private actor, whereas other conduct only violates the law of nations if committed by a state actor. Plaintiff must allege state action in order to state a claim for under Alien Tort Statute for nongenocide related human rights violations. To allege state action for purpose of claim under the Alien Tort Statute, the challenged conduct must be attributable to the state, in other words, it must be official conduct; state is responsible for any violation of its obligations under international law resulting from action or inaction by, "any organ, official, employee, or other agent of a government or of any political subdivision, acting within the scope of authority or under color of such authority.". To determine whether state action has been alleged in action under the Alien Tort Statute for human rights violations, district court considers test contained in Restatement section and "under color of law" jurisprudence of § 1983.

Customary Law Analysis For purposes of the Alien Tort Statute, an " international tort," i.e., one that violates the law of nations, should satisfy the following requirements: no state condones the act in question and there is a recognizable "universal" consensus of

36

prohibition against it; there are sufficient criteria to determine whether a given action amounts to the prohibited act and thus violates the norm; and the prohibition against it is nonderogable and therefore binding at all times upon all actors. Corporation found to be a state actor can be held responsible under the Alien Tort Statute for human rights abuses which violate international customary law

Defenses Lack of standing. Other Info of Interest CASE Bigio v. Coca-Cola Co. 239 F.3d 440

C.A.2 (N.Y.),2000 Judge Hon. Joseph M. McLaughlin, appointed in 1990 by President

Bush; Hon. Dennis Jacobs, appointed in 1992 by President Bush; Hon. Robert D. Sack, appointed in 1998 by President Clinton

Summary of Facts: Canadian citizens and their Egyptian corporation sued Delaware corporations, alleging that, after plaintiffs' property in Egypt was seized by the Egyptian government because the individual plaintiffs were Jewish, defendants purchased or leased the plaintiffs' property with full knowledge of the unlawful manner in which it had been seized.

Holdings (1) complaint did not plead a violation of the law of nations by defendants, so that the district court was without subject matter jurisdiction under the Alien Tort Claims Act; (2) district court had diversity jurisdiction; (3) district court was not precluded by the local action doctrine from exercising its diversity jurisdiction; (4) the act of state doctrine did not apply; and (5) whether to dismiss on international comity grounds should be decided by the district court in the first instance.

Reasoning/Arguments 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 law in order for the court to exercise jurisdiction under the Alien Tort Claims Act. An indirect economic benefit from unlawful state action is not sufficient to support jurisdiction over a private party under the Alien Tort Claims Act

Int’l Law Norms Neither racial or religious discrimination in general nor the discriminatory expropriation of property in particular is an act constituting a violation of the law of nations, when committed by a private individual not acting under color of law.

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Customary Law Analysis "International comity" may take the form of a discretionary act of deference by a national court, to decline to exercise jurisdiction in a case properly adjudicated in a foreign state.

Defenses The defendants urged the district court to dismiss this case under the "local action doctrine" for lack of subject matter jurisdiction, irrespective of the parties' diversity of citizenship and any of the other issues pertaining to this lawsuit. Under the local action doctrine, courts may not exercise jurisdiction over any "local" action involving real property unless the property at issue is found within the territorial boundaries of the state where the court is sitting.

Other Info of Interest CASE Bodner v. Banque Paribas 114 F.Supp.2d 117

E.D.N.Y.,2000. Judge Hon. Sterling Johnson Jr., appointed in 1991 by President

Bush Summary of Facts: Descendants of Jewish customers of French financial

institutions sued institutions, claiming damages arising from participation in scheme to expropriate assets of customers during Nazi occupation and failure to disgorge assets to them as rightful owners.

Holdings Motion to dismiss Denied. (1) descendants alleged conspiracy on part of institutions; (2) descendants had standing to bring claim; (3) court had subject matter jurisdiction over claims; (4) court was not required to decline jurisdiction under principles of comity or Act of State doctrine; (5) court was not required to decline jurisdiction on forum non conveniens grounds; (6) allegations of continuing violations precluded claim that statute of limitations had run; and (7) joinder of French or German governments was not required.

Reasoning/Arguments Int’l Law Norms There is no basis for declining jurisdiction over case, on

grounds of international comity, in absence of true conflict between United States and foreign law.

Customary Law Analysis Federal courts have jurisdiction over claims involving violations of customary international law.

Defenses Defendants move to dismiss, claiming the Bodner plaintiffs lack a private right of action under the international laws and treaties pled in the complaint and that plaintiffs, therefore, have failed to establish federal question jurisdiction.

Other Info of Interest CASE Burger-Fischer v. DeGussa AG 65 F.Supp.2d 248

D.N.J.,1999.

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Judge Hon. Dickinson R. Debevoise, appointed in 1979 by President Carter.

Summary of Facts: Class actions were brought against German corporations to recover compensation for enforced labor under Nazi regime and damages for oppressive living and working conditions. Questions presented (1) were claims subsumed by Convention on the Settlement of Matters Arising out of the War and the Occupation (Transition Agreement), and (2) whether reparation agreements made by Germany after World War II made adequate provision for victims of Nazi oppression and whether Germany had adequately implemented reparation agreements raised political questions that were not subject to judicial resolution.

Holdings To state the ultimate conclusion, the questions whether the reparation agreements made adequate provision for the victims of Nazi oppression and whether Germany has adequately implemented the reparation agreements are political questions which a court must decline to determine

Reasoning/Arguments Defendants' actions violated customary international law, a law which "results from a general and consistent practice of states followed by them from a sense of legal obligation."

Int’l Law Norms Under international law, claims for compensation by individuals harmed by war- related activity belong exclusively to state of which individual is citizen.

Customary Law Analysis Defenses (i) the Court lacks personal jurisdiction over Degussa, A.G.;

(ii) dismissal is required under the principle of forum non conveniens; (iii) the Court lacks subject matter jurisdiction to adjudicate plaintiffs' war-related claims because they are within the exclusive province of state-to-state resolution; (iv) the Court should abstain on grounds of international comity; (v) plaintiffs' claims are barred by any potentially applicable statute of limitations; and (vi) plaintiffs' claims founded on international law fail because plaintiffs lack a private right of action thereunder.

Other Info of Interest CASE Burnett v. Al Baraka Inv. and Development Corp.

274 F.Supp.2d 86 D.D.C.,2003. July 25, 2003.

Judge Hon. James Robertson, Appointed by Pres. Clinton

Summary of Facts: Family members and representatives of victims of September

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11 terrorist attacks brought action under federal and state law to hold accountable the persons and entities that funded and supported the international terrorist organization known as al Qaeda which carried out the attacks.

Holdings On defendants' motions to dismiss, the District Court, Robertson, J., held that: (1) Air Transportation Safety and System Stabilization Act (ATSSSA) did not vest exclusive jurisdiction in United States District Court for Southern District of New York over claims of plaintiffs; (2) plaintiffs met their minimal burden of making prima facie showing of personal jurisdiction over international Muslim organization; (3) plaintiffs could conduct jurisdictional discovery with respect to Saudi bank; (4) Alien Tort Claims Act (ATCA) claims of foreign nationals could be adjudicated under pendent venue theory; (5) hijacking of four airplanes was "violation of the law of nations," for purpose of ATCA claims; (6) plaintiffs failed to state claim under Racketeer Influenced and Corrupt Organizations Act (RICO); (7) fairness required extra-careful scrutiny of allegations that defendants were accomplices to terrorism; (8) plaintiffs stated claim that private charitable organization aided and abetted and conspired with hijackers; (9) plaintiffs stated claim of intentional infliction of emotional distress against alleged accomplices; and (10) Saudi bank was not liable for injuries done with money that passed through it. Motions denied.

Reasoning/Arguments Plaintiffs invoked the jurisdiction of this court under the ATA for the claims of the plaintiffs who are United States nationals and the ATCA for the claims of those 198 plaintiffs who are foreign nationals. The question of whether the statute creates a separate cause of action or merely confers subject matter jurisdiction is the subject of wide, and current, debate, and it remains unsettled in this Circuit. See Al Odah v. United States, 321 F.3d 1134, 1146 (D.C.Cir.2003) (Randolph, J., concurring); Doe v. Islamic Salvation Front, 257 F.Supp.2d 115, 120 (D.D.C.2003). “The great majority of the federal courts outside this Circuit that have addressed the issue have held that the ATCA does create a cause of action. See, e.g., Papa v. United States, 281

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F.3d 1004, 1013 (9th Cir.2002) (citing In re Estate of Ferdinand Marcos, Human Rights Litig., 25 F.3d 1467, 1474-75 (9th Cir.1994)); Abebe-Jira v. Negewo, 72 F.3d 844, 847- 48 (11th Cir.1996); Kadic v. Karadzic, 70 F.3d 232, 241 (2d Cir.1995); Iwanowa v. Ford Motor Co., 67 F.Supp.2d 424, 443 (D.N.J.1999); Beanal v. Freeport-McMoRan, Inc., 969 F.Supp. 362, 370 (E.D.La.1997), aff'd, 197 F.3d 161 (5th Cir.1999); Xuncax v. Gramajo, 886 F.Supp. 162, 179 (D.Mass.1995); Paul v. Avril, 812 F.Supp. 207, 212 (S.D.Fla.1993). Many of those decisions follow Judge Edwards's Tel-Oren concurrence, and so will I.” Although no defendant in this case is sued as a direct perpetrator of a tort committed in violation of the law of nations, proof that they were accomplices, aiders and abetters, or co-conspirators would support a finding of liability under the ATCA. See, e.g., Talisman, 244 F.Supp.2d at 321 (joining other courts in holding that "ATCA suits [may] proceed based on theories of conspiracy and aiding and abetting");Mehinovic v. Vuckovic, 198 F.Supp.2d 1322, 1355 (N.D.Ga.2002) ("United States courts have recognized that principles of accomplice liability apply under the ATCA to those who assist others in the commission of torts that violate customary international law") (citing cases); Eastman Kodak Co. v. Kavlin, 978 F.Supp. 1078, 1091-92 (S.D.Fla.1997). “The ATCA may be applied to certain actions of private, non-state actors. In Sanchez-Espinoza v. Reagan, 770 F.2d 202 (D.C.Cir.1985), indeed, the Court of Appeals stated, in dicta, that "[t]his obscure section of the Judiciary Act of 1789 ... may conceivably have been meant to cover only private, nongovernmental acts that are contrary to treaty or the law of nations--the most prominent examples being piracy and assaults upon ambassadors." 770 F.2d at 206 (emphasis supplied). See also Kadic, 70 F.3d at 239 ("[C]ertain forms of conduct violate the law of nations whether undertaken by those acting under the auspices of a state or only as private individuals"); Presbyterian Church of Sudan v. Talisman Energy, Inc., 244 F.Supp.2d 289, 311 (S.D.N.Y.2003); Bao Ge, 201 F.Supp.2d at 22 n. 5; Iwanowa, 67 F.Supp.2d at 445; Doe I, 993 F.Supp. at 8; Beanal, 969 F.Supp. at 371; Tel-Oren, 726 F.2d at 795 (Edwards, J., concurring).”

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The elements of a claim under the ATCA are that "(1) the plaintiff is an alien; (2) the claim is for a tort; and (3) the tort is committed in violation of the law of nations or a treaty of the United States.” As for the third element, the September 11 attacks began with the hijacking of four airplanes, and aircraft hijacking is generally recognized as a violation of international law of the type that gives rise to individual liability. [FN9] See Bigio v. Coca-Cola Co., 239 F.3d 440, 447-48 (2d Cir.2000); Kadic, 70 F.3d at 240; Doe, 257 F.Supp.2d at 120; Talisman, 244 F.Supp.2d at 309; Abdullahi v. Pfizer, Inc., No. 01CIV8118, 2002 WL 31082956, at *4 (S.D.N.Y. Sept.17, 2002); see also Restatement (Third) of the Foreign Relations Law of the United States § 404 (1987) ("A state has jurisdiction to define and prescribe punishment for certain offenses recognized by the community of nations as of universal concern, such as piracy, slave trade, attacks on or hijacking of aircraft, genocide, war crimes, and perhaps certain acts of terrorism ...."); see generally United States v. Yunis, 924 F.2d 1086, 1092 (D.C.Cir.1991) ( "Aircraft hijacking may well be one of the few crimes so clearly condemned under the law of nations that states may assert universal jurisdiction to bring offenders to justice, even when the state has no territorial connection to the hijacking and its citizens are not involved").



CASE Cabello Barrueto v. Fernandez Larios

291 F.Supp.2d 1360 S.D.Fla.,2003. Sept. 16, 2003.

Judge Hon. Joan A. Lenard Appointed by Pres. Clinton

Summary of Facts: Survivors of Chilean official filed action against former Chilean military officer, alleging extrajudicial killing, torture, crimes against humanity, and cruel, inhuman or degrading punishment. Defendant moved to dismiss for lack of subject matter jurisdiction.

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Holdings Satisfaction of Torture Victim Protection Act's (TVPA's)

exhaustion of remedies provision was not a jurisdictional prerequisite to suit, but rather, was an affirmative defense.

Reasoning/Arguments A court may exercise subject matter jurisdiction over a Torture Victim Protection Act (TVPA) claim either under the jurisdictional umbrella of the Alien Tort Claims Act (ATCA), or as a federal question. The TVPA creates a cause of action for official torture and extrajudicial killing, but unlike the ATCA, it does not confer subject matter jurisdiction. See Kadic v. Karadzic, 70 F.3d 232, 246 (2d Cir.1995); Al Odah v. United States, 321 F.3d 1134, 1146 (D.C.Cir.2003) (J. Randolph, concurring). A court may exercise subject matter jurisdiction over a TVPA claim either under the "jurisdictional umbrella" of the ATCA, Abiola v. Abubakar, 267 F.Supp.2d 907, 910 (N.D.Ill.2003), or as a federal question pursuant to 28 U.S.C. § 1331, Cabello v. Fernandez-Larios, 157 F.Supp.2d 1345, 1354-55 (S.D.Fla.2001). Although the Sinaltrainal court interpreted a claim of failure to exhaust as a challenge to subject matter jurisdiction, 256 F.Supp.2d at 1357, other district courts have treated the same claim as non-jurisdictional. See Abiola, 267 F.Supp.2d at 910 (finding that the TVPA "is not a jurisdictional statute, such that failure to comply with its requirements strips the Court of jurisdiction" and that the TVPA's exhaustion requirement did not apply to claims raised under the ATCA); Mehinovic v. Vuckovic, 198 F.Supp.2d 1322, 1347 n. 30 (N.D.Ga.2002) (noting that the burden is on defendant to raise non-exhaustion and defendant in that case had not met the burden); Wiwa v. Royal Dutch Petroleum Co., et al., 2002 WL 319887, at *17 (S.D.N.Y.2002) (holding that defendant raising "exhaustion defense" did not meet initial burden of demonstrating that plaintiffs had not exhausted "alternative and adequate" remedies in Nigeria.); Cabiri v. Assasie-Gyimah, 921 F.Supp. 1189, 1197 n. 6 (S.D.N.Y.1996) (noting that the legislative history of the TVPA indicates that the exhaustion requirement "was not intended to create a prohibitively stringent condition precedent to recovery under the statute," and finding that exhaustion was not a requirement in that case).

International Law

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Norms Discussed Customary Law Analysis

Defenses . Other Information of Interest

CASE Cabello Barrueto v. Fernandez Larios

205 F.Supp.2d 1325 S.D.Fla.,2002. June 5, 2002.

Judge Hon. Joan A. Lenard Appointed by Pres. Clinton

Summary of Facts: Survivors of Chilean official filed action against former Chilean military officer, alleging extrajudicial killing, torture, crimes against humanity, and cruel, inhuman or degrading punishment. Defendant moved to dismiss.

Holdings (1) accrual of limitations period was postponed by concealment of victim's body and cause of death; (2) defendant could be held liable under Alien Tort Claims Act (ATCA) for conspiring in or aiding and abetting actions of other Chilean officials that were contrary to international law; and (3) legal representative of decedent's estate had standing. Motion denied.

Reasoning/Arguments In action under Alien Tort Claims Act (ATCA) alleging extrajudicial killing of a Chilean official and other wrongs, accrual of ten-year limitations period was postponed despite fact that defendant was amendable to service of process in the United States; Chilean government concealed victim's body and cause of death. Former Chilean military officer could be held liable under Alien Tort Claims Act (ATCA) for conspiring in or aiding and abetting acts of other Chilean officials, even if he did not actually kill plaintiff's decedent; principles of conspiracy and accomplice liability were well established in customary international law, ATCA was legal means for holding such individuals liable in United States courts, and Congress clearly intended to bring to justice individuals who contributed to human rights abuses, even where individuals did not actually commit the acts. 28 U.S.C.A. § 1350.


The Court agrees that principles of conspiracy and accomplice liability are well established in customary international law.

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The ATCA is the legal means by which individuals who violate well-established international law may be held liable in United States courts. Congress has clearly indicated its intent to provide federal courts as a forum to bring to justice individuals who contribute directly to human rights abuses, even where it cannot be shown that an individual actually committed the acts of abuse. Accordingly, the Court determined as a matter of law that Defendant may be held liable under the ATCA for conspiring in or aiding and abetting the actions taken by other Chilean military officials, contrary to international law, with respect to Plaintiffs' decedent. Presently, Plaintiffs have alleged sufficient participation by Defendant to avoid dismissal of the Second Amended Complaint.



CASE Cabiri v. Assasie-Gyimah, 921 F. Supp. 1189 (S.D.N.Y. 1996)

Judge Hon. ALLEN G. SCHWARTZ, Appointed by Pres. Clinton Summary of Facts: Plaintiff, a Ghananian granted political asylum in the US,

brought this action under the TVPA and ACTA against the Deputy Chief of National Security of Ghana. On the instructions of defendant, in his capacity as Deputy Head of National Security, Cabiri was arrested and investigated for treason and subversion. Cabiri alleges that he was imprisoned for nearly one year without charge.

Holdings The court denied defendant's motion to dismiss plaintiff's complaint for alleged torture.

Reasoning/Arguments The court denied defendant’s motion that the court lacked personal jurisdiction, that the action was barred by the applicable statutes of limitations and by the Foreign Sovereign Immunities Act, ruling that an exception from immunity from service of process applied to the service of a summons upon him when he came to the United States to serve as a witness in an action involving vindication of the same cluster of rights and interests that were the subject of this action. The court found that Ghana provided an inadequate and unacceptable forum for plaintiff's claims, in part because of the risks to him there, and found the retroactive application of the Torture Act proper in this case, because defendant had fair notice that torture was unlawful prior to its enactment.

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Alien Tort Claims Act provides federal jurisdiction for a claim against an alleged torturer, who is found and served with process by an alien within the borders of the United States…the Filartiga Court found that, "an act of torture committed by a state official against one held in detention violates established norms of the international law of human rights, and hence the law of nations," citing, inter alia, the United Nations Charter, the Universal Declaration of Human Rights, and the Declaration of the Protection of All persons from Being Subjected to Torture. …This finding relied on the observation that, there are few, if any, issues in international law today on which opinion seems to be so united as the limitations on a state's power to torture persons held in custody. . . . There is at present no dissent from the view that the guaranties [of the United Nations Charter] include, at a bare minimum, the right to be free from torture.”


“Where a court finds that plaintiff is highly unlikely to obtain justice in the foreign courts, and that to force plaintiff to bring this action in a foreign state would unnecessarily put him in harm's way, or, also unacceptable, would mean an end to the action altogether, defendant's motion to dismiss on the ground of forum non conveniens may be denied.”

Defenses Immunity under Foreign Sovereign Immunities Act, Other Information of Interest

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CASE Carmichael v. United Technologies Corp., 835 F.2d 109

(5th Cir. 1988)

Judge E. GRADY JOLLY, Appointed by Reagan

Summary of Facts: Appellant Great Britain citizen sought review of the judgment of the United States District Court for the Southern District of Texas, which dismissed his action against appellee creditor under the Alien Tort Statute, 28 U.S.C.S. § 1350, for insufficient service, lack of subject matter and personal jurisdiction, after appellant was imprisoned and tortured in Saudi Arabia.

Holdings The judgment dismissing appellant Great Britain citizen's action against appellee creditor was affirmed, because appellant failed to prove that appellee conspired in, or aided and abetted acts of torture by the Saudi Arabian government, and appellant's action was properly dismissed for lack of jurisdiction under the Alien Tort Statute.

Reasoning/Arguments Court affirmed the judgment and held that appellant's claims were properly dismissed for lack of jurisdiction under Fed. R. Civ. P. 12(b)(1) because he failed to demonstrate that a tort in violation of the law of nations was committed by appellees. Appellant failed to prove that appellees conspired in or aided and abetted acts of torture by Saudi Arabia.

Int’l Law Norms The question of defining "the law of nations" is a confusing one which is hotly debated, chiefly among academics. "Official torture" has been recognized as an actionable tort under the Alien Tort Statute in some jurisdictions and not in others. Compare Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir.1980), and Tel-Oren v. Libyan Arab Republic, 233 U.S. App. D.C. 384, 726 F.2d 774 (D.C. Cir.1984), cert. denied, 470 U.S. 1003, 105 S. Ct. 1354, 84 L. Ed. 2d 377 (1985). Assuming the Supreme Court and Congress continue to be silent on the issue, this circuit may be called upon at some point to join sides in this debate. This case, however, does not require that we stand up and be counted.


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CASE Castillo v. Spiliada Maritime Corp.,

732 F.Supp. 50 (E.D. La. 1990) Judge Hon. Peter Hill Beer, Appointed by Pres: Jimmy Carter Summary of Facts: Plaintiffs, five Filipino seamen who were employed on the

M/V SPILIADA also seek punitive damages, and claim retaliatory discharge under the Alien Tort Statute, 28 U.S.C. 1350 et seq., "forced repatriation", mental anguish, and special compensatory damages for the threat of lost employment opportunities.

Holdings …………………. Reasoning/Arguments “This court finds that a genuine issue of fact exists

regarding whether plaintiffs can show that they acted in good faith in bringing a wage claim pursuant to 46 U.S.C. 10313. The specific and single issue of fact is whether plaintiffs acted in good faith when they entered a settlement, renounced it, and then filed this lawsuit….Since it is sound judicially to ensure that plaintiffs' wage claim, the one upon which this court's jurisdiction is allegedly based, is not entirely devoid of any prospect of success, this court will hold a evidentiary hearing on that issue, and that issue alone. Unless plaintiffs can show that they acted in good faith in filing this lawsuit at that hearing, this court lacks jurisdiction over their wage claims.”


………………………..

Customary Law Analysis …………………………… Defenses Spiliada's main contention is that plaintiffs acted in bad

faith since they entered a binding and final settlement, then renounced that settlement, and filed this lawsuit


CASE Grant v. Winn Dixie Louisiana, Inc., 1989 WL 159363 (E.D. La. 1989)

Judge Summary of Facts: NOT AN ATCA CASE Holdings …………………. Reasoning/Arguments ……………………. International Law Norms Discussed

………………………..

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Customary Law Analysis Defenses ……………………………. Other Information of Interest

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CASE Chiminya Tachiona v. Mugabe

216 F.Supp.2d 262 S.D.N.Y.,2002. Aug. 7, 2002.

Judge Hon. Victor Marrero Appointed by Pres. Clinton

Summary of Facts: Supporters and members of opposition party brought action against ruling political party of Zimbabwe, alleging that defendant, through its officers, planned and executed a campaign of violence designed to intimidate and suppress political opposition in violation of Alien Tort Claims Act (ATCA), the Torture Victim Protection Act (TVPA), and fundamental norms of human rights law. The District Court, 169 F.Supp.2d 259, entered default judgment and denied motion for reconsideration filed by the United States, 186 F.Supp.2d 383.

Holdings Upon the report and recommendation of a United States Magis trate Judge, regarding damages, the District Court held that: (1) plaintiffs established subject matter jurisdiction for ATCA claims; (2) plaintiffs established ruling party's liability for torture and extrajudicial killing under TVPA; (3) awards of $2.5 million in compensatory and $5 million punitive damages were proper for murder of members of opposing political party; (4) award of $1 million in compensatory and $5 million in punitive damages for torture of each plaintiff, occurring prior to death, was proper; (5) law of Zimbabwe was required to be applied to ATCA claims.

Reasoning/Arguments While the Alien Tort Claims Act (ATCA) is jurisdictional in nature and does not expressly delineate a substantive cause of action, the Torture Victim Protection Act (TVPA) provides a substantive cause of action but does not itself confer federal jurisdiction. 28 U.S.C.A. §§ 1350, 1350 note. Where plaintiffs have established subject matter jurisdiction over their claims of torture and extra-judicial killing under the Alien Tort Claims Act (ATCA), the district court has subject matter jurisdiction over plaintiff's Torture Victim Protection Act (TVPA) claims as well. 28 U.S.C.A. §§ 1350, 1350 note. “While the ATCA is jurisdictional in nature and does not expressly delineate a substantive cause of action, the TVPA provides a substantive cause of action but does not itself confer

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federal jurisdiction. See Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88, 104 (2d Cir.2000) ("While the [ATCA] expressed itself in terms of a grant of jurisdiction to the district courts, the [TVPA] makes clear that it creates liability under U.S. law ....") (emphasis in original); Kadic v. Karadzic, 70 F.3d 232, 246 (2d Cir.1995). As in this case, plaintiffs who bring claims under the TVPA often rely on the ATCA to provide jurisdiction. See Kadic, 70 F.3d at 246. Because Plaintiffs have established subject matter jurisdiction over their claims of torture and extra-judicial killing under the ATCA, this Court has subject matter jurisdiction over Plaintiff's TVPA claims as well. See Tachiona I, 169 F.Supp.2d at 309-316; Kadic, 70 F.3d at 246.” Members and supporters of political party opposing Zimbabwe's ruling party established ruling party's liability for torture and extrajudicial killing of members of opposing party, under the Torture Victim Protection Act (TVPA); opposing party members were subjected to severe pain and suffering at hands of ruling party, prior to being brutally murdered, plaintiffs demonstrated that Zimbabwean judicial system was controlled by defendant such that it was inaccessible to plaintiffs, and all alleged actions occurred within limitations period. 28 U.S.C.A. § 1350 note. Fact that plaintiffs brought extra-judicial killing and torture claims under the Torture Victim Protection Act (TVPA) does not mean that they cannot also bring them under the Alien Tort Claims Act (ATCA). 28 U.S.C.A. §§ 1350, 1350 note.



A "norm of international law" must be specific, universal, and obligatory, in context of determining whether violation of international law occurred as required to support exercise of jurisdiction under Alien Tort Claims Act (ATCA); a norm is universal and obligatory if: (1) no state condones the act in question and there is a recognizable universal consensus of prohibition against it, (2) there are sufficient criteria to determine whether a given action amounts to the prohibited act and thus violates the norm, and (3) the prohibition against it is non-derogable and therefore binding at all times upon all actors.

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Zimbabwean citizens' alleged that ruling political party of Zimbabwe tortured and killed members of opposition party, in violation of norms of international law, as required for district court to exercise subject matter jurisdiction on citizens' claims under Alien Tort Claims Act (ATCA), although taking of property by sovereign government from citizens did not violate international law as would support exercise of jurisdiction over those claims. 28 U.S.C.A. § 1350; Restatement (Third) of Foreign Relations Law of the United States § 702(f).


In addition to bringing claims for torture and extra-judicial killing under the TVPA, Plaintiffs also bring each of their seven claims under the ATCA. This statute provides jurisdiction over claims brought by aliens that allege torts in violation of international law, but it does not indicate what substantive law courts should apply in determining liability and damages. See 28 U.S.C. § 1350. The Second Circuit recently pointed out that there is significant disagreement among various circuits on this issue, noting that "the federal courts have never definitively resolved this choice-of-law question." Wiwa, 226 F.3d at 105 n. 12 (citing Xuncax, 886 F.Supp. at 180-83 (holding that international law provides the substantive law for ATCA claims); In re Estate of Ferdinand Marcos, 978 F.2d 493, 503 (9th Cir.1992) (approving the district court's use of the tort law of the state where the underlying events occurred); Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 777, 781-82 (D.C.Cir.1984) (Edwards, J. concurring) (suggesting that tort laws of the forum state might supply the substantive law for ATCA claims); Filártiga v. Pena-Irala, 630 F.2d 876, 889 (2d Cir.1980) (requiring choice-of-law analysis)). The controlling case in the Second Circuit is Filártiga, which requires the Court to perform a choice-of-law analysis, following the standards articulated in Lauritzen v. Larsen, 345 U.S. 571, 73 S.Ct. 921, 97 L.Ed. 1254 (1953), to determine the substantive law for ATCA claims.

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CASE Doe v. Karadzic, 866 F. Supp. 734 (S.D.N.Y. 1994) Judge Hon. XX, Appointed by Pres: Summary of Facts: Reversed and remanded by Kadic v. Karadzic, 70 F.3d

232 (2d cir. 1995); rehearing denied by Kadic v. Karadzic, 74 F.3d 377 (2d Cir. 1996)

Holdings …………………. Reasoning/Arguments ……………………. International Law Norms Discussed

………………………..

Customary Law Analysis Defenses …………………………….


CASE Denegri v. Republic of Chile, 1992 WL 91914 (D.D.C. 1992)

Judge Hon. Penn, John Garrett, Appointed by Pres: Jimmy

Carter

Summary of Facts: Plaintiffs initially argued that the court has subject matter jurisdiction over violations of universally recognized principles of international law under the Alien Tort Statute, 28 U.S.C. section 1350.

Holdings “That statute 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." However, this argument was rejected by the Supreme Court in Amerada Hess which held that the sole basis for jurisdiction over a foreign nation is the FSIA. Plaintiffs filed a supplemental memorandum which now relies solely on the FSIA for jurisdiction.”

Reasoning/Arguments …………………….


………………………..

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Customary Law Analysis ……………………………

Defenses …………………………….


CASE Doe I v. The Gap, Inc.

Not Reported in F.Supp.2d D.N.Mar.I.,2001. Nov. 26, 2001

Judge MUNSON, Alex J. Appointed by Pres. Reagan

Summary of Facts: On motion to dismiss. Mostly RICO claims. Plaintiffs also alleged the torts of forced labor and deprivation of fundamental human rights in violation of international law under the Alien Tort Claims Act 28 U.S.C. § 1350. Defendants contended plaintiffs failed to state a claim under the ATCA because a violation of international law requires a state actor and the claims are barred by the applicable statute of limitations. The court agrees as to the former assertion and need not consider the latter assertion.

Holdings Count 5 fails to state a claim for violations of international law:

although international law generally governs the relationship between nations, and thus a violation thereof almost always requires state action, it has been recognized that a handful of particularly egregious acts --- genocide, war crimes, piracy, and slavery --- by purely private actors can violate international law. As of now, however, only the acts mentioned above have been found to result in private individuals being held liable under international law. The court determined that plaintiffs had failed to make out a claim for the less egregious act of involuntary servitude and thus it need not consider whether the Unocal court's equation of forced labor with slavery is sustainable on the facts as alleged. As to plaintiffs' claims of other alleged human rights violations, no court has yet accepted plaintiffs' contention that the freedom to associate and the right to be free from

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discrimination are standards that have as yet evolved into norms of customary international law sufficient to invoke and be actionable under the ATCA.

Reasoning/Arguments International Law Norms Discussed



CASE Doe v. Islamic Salvation Front

257 F.Supp.2d 115 D.D.C.,2003. March 31, 2003.

Judge Hon. James Robertson, Appointed by Pres. Clinton

Summary of Facts: Algerian citizens and a non-governmental organization of Algerian women brought action under the Alien Tort Claims Act (ATCA) against an Algerian political group and one of its members, alleging that the member assisted and encouraged armed Islamic groups in committing crimes against humanity, war crimes, and other violations of international law and domestic law.

Holdings (1) Non-governmental organization did not have associational standing; (2) Subject-matter jurisdiction was lacking over all claims, except claim of one plaintiff that defendant participated in an airplane hijacking; and (3) Evidence was insufficient to find that defendant participated in the hijacking. Motion granted.

Reasoning/Arguments As the most closely analogous federal statute, the ten-year statute of limitations of the Torture Victim Protection Act (TVPA) applies to claims under the Alien Tort Claims Act (ATCA). 28 U.S.C.A. § 1350. Non-governmental organization of Algerian women did not have associational standing to bring suit under the Alien Tort Claims Act (ATCA), where organization sought money damages, and thus claims against defendant required individualized proof from each member of the organization. 28 U.S.C.A. § 1350.

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The law of this Circuit is unclear, however, as to whether the ATCA creates a cause of action [FN10] and whether the ATCA confers subject matter jurisdiction over claims against non-state actors. See Tel-Oren v. Libyan Arab Republic, 517 F.Supp. 542 (D.D.C.1981), aff'd, 726 F.2d 774 (D.C.Cir.1984). In Tel-Oren, the Court of Appeals affirmed the dismissal for lack of subject matter jurisdiction of an ATCA action brought against various Arab and Palestinian organizations by victims of an armed attack on a civilian bus in Israel. The panel, however, issued three divergent opinions on why the dismissal was appropriate. Judge Edwards found that there was no liability under the ATCA for torture committed by non-state actors; Judge Bork opined that the ATCA did not grant a cause of action in the first place; and Judge Robb concluded that the action presented a nonjusticiable political question. Tel-Oren, 726 F.2d at 791, 795, 799, 823. Even if the ATCA creates a cause of action and imposes liability upon non- state actors for certain acts, the only claim over which this Court has subject matter jurisdiction under the ATCA is that of Jane Doe II. [Jane Doe II: witnessed from the airport and watched on television the hijacking of an airplane by the GIA on December 24, 1994. Her daughter and sister were passengers on the plane.] The law of nations attributes individual liability for a "handful of crimes" without requiring state action, Tel-Oren, 726 F.2d at 795, but no court has found more in that "handful" than war crimes, crimes committed in pursuit of genocide, slave trading, aircraft hijacking, and piracy, see Kadic v. Karadzic, 70 F.3d 232, 240 (2d Cir.1995), and only Jane Doe II's claim, alleging Haddam's involvement in an airplane hijacking, can be found on that short list. Haddam's complicity in murder and threats committed by armed Islamic groups amount to allegations of war crimes and crimes against humanity according to the Plaintiffs; but their contention stretches the meaning of war crimes and crimes against humanity under the law of nations too far and hinges on characterizing the violent conflict in Algeria between the Islamic insurgency and the government as "war"--a debatable point. Plaintiffs' submission, that any violence or threat against a civilian or "non-combatant" during an armed conflict should be considered a war crime or crime against humanity, is unsupported by authority and is rejected.

International Law

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Norms Discussed Customary Law Analysis


CASE Doe v. Islamic Salvation Front, 993 F. Supp. 3 (1998) Judge Hon. Stanley Sporkin, no info Summary of Facts: Eight Algerian women who had allegedly been victims of

crimes against humanity during Algerian civil war, and non-governmental organization of Algerian women, sued Algerian political group allegedly responsible for crimes and member of group, who had sought political asylum in United States

Holdings (1) member had requisite minimum contacts to allow exercise of jurisdiction; (2) service on member in Virginia was proper; (3) plaintiffs' claims alleged violations of international law as it stands today, and thus could provide basis for subject matter jurisdiction under Alien Tort Claims Act (ATCA); (4) fact issue existed as to whether political group was de facto "state" for purposes of Torture Victim Protection Act (TVPA); and (5) women's organization would be allowed to remain as plaintiff, as it met traditional standing requirements and its presence would not cause prejudice.

Reasoning/Arguments Claims that Algerian citizen, who had served as high-ranking official in Algerian political group before seeking political asylum in United States, had participated in crimes against humanity, war crimes, hijacking, summary execution, rape, mutilation, sexual slavery, and murder, which were committed by group in connection with civil war in Algeria, alleged violations of international law as it stands today, and thus could provide basis for subject matter jurisdiction over citizen under Alien Tort Claims Act (ATCA).

Int’l Law Norms international law which protects civilians who are not participating in armed conflict not of international character by requiring humane treatment of civilians and prohibiting such acts as murder, mutilation, cruel treatment and torture, kidnapping, and summary executions, as evidenced by Common Article 3 of Geneva Convention, applies to both state and private actors in such a conflict.

Customary Law Analysis "Law of nations", which is also known as "international customary law", is formed by general assent of civilized nations. Courts must interpret international law under Alien

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Tort Claims Act (ATCA) as it has evolved and exists among nations of world today.

Defenses (1) lack of personal jurisdiction; (2) improper service; (3) lack of subject matter jurisdiction; (4) nonjusticiability; (5) lack of standing of the RAFD to bring this suit on either its behalf or on behalf of its members.

Other Info of Interest CASE Doe v. Karadzic, 2000 WL 763851

S.D.N.Y.,2000. Judge Hon. Peter K. Leisure, appointed in 1984 by President Reagan Summary of Facts: Plaintiffs in this case seek compensatory and punitive damages

for acts of genocide, including murder, rape, torture, and other torts, allegedly committed in Bosnia-Herzegovina by individuals under the command and control of defendant Radovan Karadzic

Holdings Motion to intervene is granted Reasoning/Arguments Motion was timely, and intervening parties were members of

similar class as original plaintiffs. Int’l Law Norms Customary Law Analysis Defenses Other Info of Interest Unpublished opinion CASE Doe v. Karadzic 176 F.R.D. 458

S.D.N.Y.,1997. Judge Leisure, J, appointed in 1984 by President Reagan Summary of Facts: In genocide action against Bosnian-Serb leader, plaintiffs

moved to amend complaint and to certify class. Holdings (1) leave to amend was warranted; (2) preliminary

requirements of class action rule were satisfied; (3) limited fund certification was warranted; and (4) where class could be certified on that ground, court would not reach request to certify on ground that common questions of law and fact predominated.

Reasoning/Arguments Plaintiffs seeking certification of class of all people who suffered injury as a result of rape, genocide, summary execution, torture or other wrongs inflicted by Bosnian-Serb forces under the command of defendant satisfied preliminary class certification requirements under Rule 23(a); class numbered in the thousands, there were common questions of law and fact as to defendant's acts and intent and application

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of Alien Tort Claims Act, claims arose out of same course of conduct and were typical, there could be no dispute that class counsel were well qualified, and there was no evidence of antagonism of interests between class representatives and absent class members

Int’l Law Norms Customary Law Analysis Defenses Other Info of Interest CASE Doe v. Unocal Corp. 963 F.Supp. 880

C.D.Cal.,1997. Judge Paez, appointed in 2000 by President Clinton Summary of Facts: Burmese citizens brought action against Burmese government

and American oil company which entered into joint venture for construction of gas pipeline in Burma.

Holdings (1) claims of civil rights abuses by Burmese government did not fall within commercial activity exception to Foreign Sovereign Immunities Act; (2) Burmese government was not necessary and indispensible party; (3) court had jurisdiction over claims against oil company under Alien Tort Claims Act; (4) allegations of torture and slavery by Burmese government in connection with the pipeline project stated claim against oil company; (5) equitable tolling applied to claim so long as there was no functioning judiciary in Burma; (6) act of state doctrine did not preclude consideration of claims based on alleged human rights abuses by Burmese government; but (7) act of state doctrine precluded claims based on expropriation of property in Burma by Burmese government.

Reasoning/Arguments Int’l Law Norms Norms of "law of nations" are found by consulting juridical

writing on public law, considering general practice of nations, and referring to judicial decisions recognizing and enforcing international law. ] Under Alien Tort Claims Act, jurisdiction may be based on violation of "jus cogens norm," or peremptory norm, which enjoys highest status within international law, and prohibition against official torture rises to level of jus cogens norm, and jurisdiction may be premised on violation of that norm. Private actors may be liable for violations of international law even absent state action. Invocation of act of state doctrine is not appropriate unless it is apparent that adjudication of matter will bring nation into

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hostile confrontation with foreign state. Where jurisdiction is available for jus cogens violations, it is less likely that judicial pronouncements on foreign sovereign's actions will undermine policies behind act of state doctrine as, in determining whether doctrine bars judicial review, one factor to be considered is degree of international consensus regarding activity. Under international law, nations cannot claim right to torture or enslave their own citizens.

Customary Law Analysis Act of state doctrine did not preclude consideration in suit against oil company which alleged to be was joint venturer with Burmese government in construction of pipeline in Burma that Burmese government had engaged in human rights violations of type internationally denounced; high degree of international consensus that actions of the type alleged in complaint are improper undermined any argument that Burmese government's alleged activities should be treated as acts of state.

Defenses Act of state doctrine, FSIA (no exceptions). Other Info of Interest CASE Doe v. Unocal Corp. 110 F.Supp.2d 1294

C.D.Cal.,2000. Judge Hon. Ronald S W Lew, appointed in 1987 by President

Reagan Summary of Facts: Plaintiffs alleged that defendants entered into a joint venture

with a French oil company, and the Myanmar government, to extract natural gas from oil fields off the coast of Burma and to transport the gas to the Thai border via a gas pipeline. Plaintiffs further alleged that defendants were liable for international human rights violations perpetrated by the Burmese military in furtherance and for the benefit of the pipeline portion of the joint venture project.

Holdings Defendant could not be held liable under Alien Tort Claims Act (ATCA) for Myanmar government's use of forced labor in furtherance and for the benefit of the pipeline portion of joint venture project.

Reasoning/Arguments Evidence suggesting that oil company, which did not seek to employ forced or slave labor, knew that forced labor was being utilized and that the joint venturers benefitted from the practice was insufficient to establish liability under international law, as required to state claim under ATCA.

Int’l Law Norms Actionable violations of international law must be of a norm that is specific, universal, and obligatory.

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Customary Law Analysis When ascertaining the content of the law of nations for purposes of Alien Tort Claims Act (ATCA), court must interpret international law, not as it was in the year ATCA was enacted, but as it has evolved and exists among the nations of the world today; norms of the law of nations are found by consulting juridical writings on public law, considering the general practice of nations, and referring to judicial decisions recognizing and enforcing international law. The norms of the law of nations are found by consulting juridical writings on public law, considering the general practice of nations, and referring to judicial decisions recognizing and enforcing international law

Defenses Unocal is a limited liability corp and liability should lie with the local group and not Unocal.

Other Info of Interest CASE Eastman Kodak Co. v. Kavlin 978 F.Supp. 1078

S.D.Fla.,1997. Judge Hon. Kenneth L. Ryskamp, appointed in 1986 by President

Reagan Summary of Facts: American photographic equipment manufacturer and one of its

employees brought action against Bolivian distributor and distributor's officer, alleging that employee was wrongfully imprisoned in Bolivia when manufacturer attempted to terminate distributorship agreement

Holdings (1) corruption in Bolivian justice system precluded dismissal of action on grounds of forum non conveniens; (2) allegations were sufficient to state claim under Bolivian law; and (3) allegations that Bolivian citizen conspired with attorney and judge to detain employee in Bolivian in life-threatening conditions until settlement with his American employer could be extorted was sufficient to meet whatever state action requirements Alien Tort Claims Act (ATCA) contained.

Reasoning/Arguments Alien's allegation that he was confined from eight to ten days in Bolivian prison before his American employer settled its commercial dispute with Bolivian distributor was sufficient to allege conduct that violated law of nations, as required to state claim under Alien Tort Claims Act (ATCA).

Int’l Law Norms Law of nations prohibits state to use its coercive power to detain individual in inhumane conditions for substantial period of time solely for purpose of extorting from him or her favorable economic settlement

Customary Law Analysis Plaintiffs must demonstrate that international law, whether contained in universal custom or convention, prohibits conspiring to cause the arbitrary and inhumane detention of an

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individual for reasons entirely unrelated to the state's legitimate penological interests.

Defenses Forum non conveniens Other Info of Interest CASE Empagran S.A. v. F. Hoffman-La Roche, Ltd.

2001 WL 761360 (2001) Judge Hon. Thomas F. Hogan, appointed by GW Bush Summary of Facts: Plaintiffs are seeking damages and injunctive relief under the

antitrust laws of the United States, the antitrust laws of the relevant foreign nations, and international law for defendants' alleged conspiracy to fix prices, allocate market shares, and commit other unlawful practices "designed to inflate the prices of various vitamins sold to plaintiffs and other purchasers both within and outside the United States."

Holdings Court grants the Joint Motion to Dismiss with respect to the foreign plaintiffs' federal antitrust claims and defers ruling on the Motion with respect to the domestic plaintiffs' federal antitrust claims pending the domestic plaintiffs' supplementation of their factual allegations with respect to the jurisdictional and standing issues. In addition, the Court grants defendants' Joint Motion to Dismiss Counts Two and Three of the Amended Complaint.

Reasoning/Arguments Plaintiffs cite no caselaw establishing a customary international law of antitrust. Given the absence of any authority establishing such a cause of action, the Court cannot find that there exists a customary international law proscribing the conduct of which plaintiffs complain in this action.

Int’l Law Norms Customary Law Analysis In order to establish a right to recover damages for violations

of customary international law, plaintiffs must show: (1) that there exists a customary international law proscribing the conduct of which they complain and (2) that the law applies to private citizens and not only to state action. Customary international law is based primarily on "customs and usages of civilized nations, treaties, and other interstate agreements, the decisions of international tribunals, and the decisions of national tribunals." 48 C.J.S. International Law § 5; see also Restatement (Third) of the Foreign Relations Law of the United States § 102(2) (1987).

Defenses (1) This Court lacks subject matter jurisdiction under the federal antitrust laws to remedy plaintiffs' injuries, because the injuries they seek to redress were allegedly sustained in transactions that lack any direct connection to U.S. commerce; (2) plaintiffs lack standing under the federal antitrust laws to

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assert their claims because they seek to remedy injuries sustained outside United States commerce and thus fall outside the class of persons whom the Sherman Act is designed to protect; (3) the claims of the domestic plaintiffs are duplicative of claims previously asserted in another action pending in our Court in the Vitamins Antitrust Litigation and should thus be dismissed; and (4) the Court should decline to exercise supplemental jurisdiction over plaintiffs' foreign law claims and should dismiss plaintiffs' claims for violations of customary international law for failure to state a claim upon which relief may be granted.

Other Info of Interest Rev’d and vacated by: 315 F.3d 338 (2003) CASE Estate of Cabello v. Fernandez-Larios

157 F.Supp.2d 1345 (2001) Judge Hon. Joan A. Lenard, appointed by Clinton Summary of Facts: This dispute arose out of the circumstances surrounding the

alleged execution of decedent, whom Chilean President Salvador Allende had appointed to serve as the Director of the Regional Planning Office for the Atacama-Coquimbo region in northern Chile. Defendant, a member of the Chilean military, allegedly executed the decedent. Defendant currently resides in Florida. Plaintiffs sued defendant for the extrajudicial killing of decedent in violation of the Alien Tort Claim Act (ATCA), 28 U.S.C.S. § 1350, the Torture Victim Protection Act (TVPA), 28 U.S.C.S. § 1350, and the International Covenant on Civil and Political Rights. Defendant filed a motion to dismiss for lack of subject matter jurisdiction and a motion for summary judgment or, in the alternative, a Fed. R. Civ. P. 12(b)(6) motion to dismiss.

Holdings Defendant's motion to dismiss was granted in part and dismissed in part.

Reasoning/Arguments The court reasoned that Chilean law did not recognize the Anglo-American construct of an "estate" created upon the death of a person. Next, the court held that equitable tolling of the TVPA was appropriate in this case because Chilean military authorities deliberately concealed the decedent's burial location from plaintiffs until 1990. The court concluded that such concealment precluded plaintiffs from knowing the exact nature of the decedent's death

Int’l Law Norms Customary Law Analysis Courts label a rule as customary international law, only if the

rule is both (a) accepted by a "generality" of states and (b) accepted by them as law. The right to remedy cruel, inhuman,

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or degrading treatment or punishment is customary international law

Defenses Defendant filed a Motion to Dismiss for Lack of Subject Matter Jurisdiction on May 25, 1999. Defendant argues Plaintiffs lack standing to bring Counts I through IV. Defendant also contends that the Court lacks subject matter jurisdiction to review the non-federal claims because they are not "truly pendent." (Mot. Dismiss Lack Subject Matter Jurisd. at 13.) In the alternative, Defendant maintains the Court should dismiss the non-federal claims because it lacks subject matter jurisdiction over the federal claims. With respect to Count VI, Defendant states that Plaintiffs have failed to state a claim upon which relief may be granted under either Florida or Chilean law. Lastly, Defendant urges the Court to dismiss all claims alleged pursuant to Florida law because, according to choice of law rules, it does not apply to the non-federal claims in this matter.

Other Info of Interest CASE In re Estate of Marcos Human Rights Litigation,

910 F. Supp. 1460 (D. Haw. 1995)

Judge Hon. MANUEL L. REAL, Appointed by Pres. L. B. Johnson

Victims of torture, summary execution and disappearance filed suits for damages, in the form of a class action as well as individual direct actions, against the Estate of the former President of the Philippines, Ferdinand E. Marcos for human rights violations. The court addressed the propriety of the use of inferential statistics to ascertain the damages suffered by each of the 9,541 victims--whether the process violated due process and whether it violated the right to a jury trial under U.S. Const. amend. VII.

Summary of Facts:

The action was tried in the three phases: (1) liability, (2) exemplary damages, and (3) compensatory damages, over a nine year period - from 1986 to 1995.

Holdings The use of aggregate procedures, with the help of an

expert in the field of inferential statistics, for the purpose of determining class compensatory damages is proper; aggregate trials do not violate due process.

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Reasoning/Arguments

The use of inferential statistics and aggregate trial procedures did not deny the president his constitutional due process right to a one-on-one trial. Regarding the Seventh Amendment claim, the use of random samples, in an aggregate trial, did not violate the right to a jury trial. The aggregation of compensatory damage claims was appropriate under federal common law for human rights claims.


………………………..

…………………………… Customary Law Analysis

Defenses …………………………….


CASE Faulder v. Johnson 178 F.3d 741

C.A.5 (Tex.),1999. Judge Hon. Edith Hollan Jones, appointed in 1985 by President

Reagan Summary of Facts: Following affirmance of murder conviction and sentence of

death, and denial of habeas corpus relief, petitioner brought suit under § 1983 and Alien Tort Claims Act, seeking to obtain stay of his execution because of his alleged tort claim against Texas officials for violating international human rights treaties and the Vienna Convention on Consular Relations.

Holdings (1) Court of Appeals had no appellate jurisdiction over denial of application for TRO, and (2) in any event, § 1983 and Alien Tort Claims Act did not provide jurisdiction to extent that petitioner sought to obtain an injunction against death sentence lawfully imposed upon him by the state of Texas.

Reasoning/Arguments Int’l Law Norms Customary Law Analysis Defenses Other Info of Interest CASE Flatow v. Islamic Republic of Iran 999 F.Supp. 1

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D.D.C.,1998. Judge Royce Lamberth, appointed in 1987 by President Reagan Summary of Facts: The father's wrongful death action arose out of an explosion

caused by a bomb that was deliberately driven into a bus by a member of a terrorist organization acting under the direction of the foreign state. The primary issue was the application of the state sponsored terrorism exception to foreign sovereign immunity, 28 U.S.C.S. § 1605(a)(7), and the "Flatow Amendment," 28 U.S.C.S. § 1605 note, which allowed punitive damages in actions brought under 28 U.S.C.S. § 1605(a)(7).

Holdings (1) extraterritorial application of Foreign Sovereign Immunities Act (FSIA) amendments regarding state sponsored terrorism was proper; (2) suicide bombing was an "extrajudicial killing" within meaning of state-sponsored terrorism exception to foreign sovereign immunity; (3) foreign state sponsor of terrorism is jointly and severally liable for all damages assessed against codefendant officials, agents, and employees, under state-sponsored terrorism exception to FSIA; (4) value of loss of accretions to student's estate was $1,513,220; (5) appropriate amount of compensatory damages for student's pain and suffering of university student was $1,000,000; (6) surviving family members of student were entitled to recover solatium; and (7) award of punitive damages in amount of $225,000,000, three times Iran's annual expenditure for terrorist activities, was appropriate.

Reasoning/Arguments Int’l Law Norms Foreign Sovereign Immunities Act (FSIA) must be applied

in every action involving a foreign state defendant. Act of state doctrine generally precludes review by United States courts of official acts by foreign states. State-sponsored terrorism exception to foreign sovereign immunity is remedial statute, which creates no new responsibilities or obligations; it only creates forum for enforcement of pre-existing universally recognized rights under federal common law and international law. State-sponsored terrorism exception to Foreign Sovereign Immunities Act (FSIA) implicated no constitutionally protected interest which prohibited application of exception to foreign sovereign's pre-enactment conduct; as international terrorism was subject to universal jurisdiction, defendants had adequate notice that their actions were wrongful and susceptible to adjudication in United States. Under law of respondeat superior, if foreign state's agent, official or employee

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provides material support and resources to terrorist organization, such provision will be considered act within the scope of his or her agency, office or employment.

Customary Law Analysis Defenses Defense of forum non conveniens is not available in actions

brought pursuant to state-sponsored terrorism exception to Foreign Sovereign Immunities Act (FSIA)

Other Info of Interest CASE Filartiga v. Pena-Irala, 630 F.2d 876 (2nd Cir. 1980)

Judge FEINBERG, Appointed by L. B. Johnson

Summary of Facts: ….. Holdings Reasoning/Arguments Int’l Law Norms Customary Law Analysis Defenses Other Info of Interest CASE Filartiga v. Pena-Irala, 577 F. Supp. 860 (E.D.N.Y 1984)

Judge Nickerson, Appointed by Carter

Summary of Facts: Plaintiffs, Dolly M. E. and Dr. Joel Filartiga, citizens of

Paraguay, brought this action against defendant Pena, also a Paraguayan citizen, and the former Inspector General of Police of Asuncion. They alleged that Pena tortured and murdered Joelito Filartiga, the seventeen year old brother and son, respectively, of plaintiffs, in retaliation for Dr. Filartiga's opposition to President Alfredo Stroessner's government. Plaintiffs invoked jurisdiction under the ATCA giving the district court "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."

Holdings The court awarded Paraguayan citizens compensatory damages, including attorney fees, and substantial punitive damages against Paraguayan official for the torture and death of their brother and son.

Reasoning/Arguments The court looked to international law to determine which substantive law to apply and concluded that Paraguayan law should be applied first because at least its written law

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prohibited torture and allowed recovery for wrongful death. Even though punitive damages were not recoverable under Paraguayan law, the court concluded that punitive damages in this case would further international objectives considering the egregious acts committed by Paraguayan official.

Int’l Law Norms …. Customary Law Analysis Defenses Other Info of Interest CASE Flores v. Southern Peru Copper Corp.

343 F.3d 140 C.A.2,2003. Decided: Aug. 29, 2003.

Judge Hon. Jose A. Cabranes Appointed by Pres. Clinton

Summary of Facts: Peruvian residents, and representatives of deceased residents, brought personal injury claims under Alien Tort Claims Act (ATCA) against American mining company, alleging that pollution from mining company's Peruvian operations had caused severe lung disease. The United States District Court for the Southern District of New York, 253 F.Supp.2d 510, Charles S. Haight, Jr., Senior District Judge, dismissed suit for lack of jurisdiction and failure to state claim. Plaintiffs appealed.

Holdings The Court of Appeals, José A. Cabranes, Circuit Judge, held that: (1) rights to health and life were insufficiently definite to be binding rules of customary international law that could form basis for subject matter jurisdiction under ATCA, and (2) existence of rule of customary international law against intranational pollution was not established so as to provide basis for jurisdiction under ATCA. Affirmed.

Reasoning/Arguments The District Court properly rejected plaintiffs' claim that the egregiousness of the conduct alleged bears on whether plaintiffs have stated a claim on which relief can be granted under the ATCA. Instead, in order to state a claim under the ATCA, a plaintiff must allege either a violation of a United States treaty or of a rule of customary international law, as

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derived from those universally adopted customs and practices that States consider to be legally obligatory and of mutual concern. Although customary international law does not protect a right to life or right to health, plaintiffs' complaint may be construed to assert a claim under a more narrowly-defined customary international law rule against intra national pollution. However, the voluminous documents and the affidavits of international law scholars submitted by plaintiffs fail to demonstrate the existence of any such norm of customary international law.


In order to state a claim under the ATCA, a plaintiff must allege either a violation of a United States treaty or of a rule of customary international law, as derived from those universally adopted customs and practices that States consider to be legally obligatory and of mutual concern. 28 U.S.C.A.§ 1350. We hold that the asserted "right to life" and "right to health" are insufficiently definite to constitute rules of customary international law. In order to state a claim under the ATCA, we have required that a plaintiff allege a violation of a "clear and unambiguous" rule of customary international law.


The determination of what offenses violate customary international law, however, is no simple task. Customary international law is discerned from myriad decisions made in numerous and varied international and domestic arenas. Furthermore, the relevant evidence of customary international law is widely dispersed and generally unfamiliar to lawyers and judges. These difficulties are compounded by the fact that customary international law--as the term itself implies--is created by the general customs and practices of nations and therefore does not stem from any single, definitive, readily- identifiable source. All of these characteristics give the body of customary international law a "soft, indeterminate character," Louis Henkin, International Law: Politics and Values 29 (1995), that is subject to creative interpretation. A principle is only incorporated into customary international law if States accede to it out of a sense of legal obligation; practices adopted for moral or political reasons do not give rise to rules of customary international law. Customary international law addresses only those wrongs that

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are of mutual, and not merely several, concern to States, i.e. those involving States' actions performed towards or with regard to the other, or dealings of States "inter se." In determining whether a particular rule is a part of customary international law, courts must look to concrete evidence of the customs and practices of States, in their formal lawmaking and official actions and only secondarily to the works of scholars as evidence of the established practice of States. In order to state a claim under the ATCA, a plaintiff must allege either a violation of a United States treaty or of a rule of customary international law, as derived from those universally adopted customs and practices that States consider to be legally obligatory and of mutual concern. 28 U.S.C.A.§ 1350. Resolutions of United Nations General Assembly generally are not proper sources of customary international law, for purposes of establishing jurisdiction under Alien Tort Claims Act (ATCA), as they are not binding on member states, are merely aspirational, and do not describe the actual customs and practices of States. Only in rare instances in which the States joining in self-styled "declaration" intend it to be legally binding, may document entitled a "declaration" be treated as evidence of the customs and practices of the States joining the declaration. Only in rare instances in which the States joining in self-styled "declaration" intend it to be legally binding, may document entitled a "declaration" be treated as evidence of the customs and practices of the States joining the declaration. In determining whether a particular rule is a part of customary international law--i.e., whether States universally abide by, or accede to, that rule out of a sense of legal obligation and mutual concern--courts must look to concrete evidence of the customs and practices of States. As we have recently stated, "we look primarily to the formal lawmaking and official actions of States and only secondarily to the works of scholars as evidence of the established practice of States." United States v. Yousef, 327 F.3d 56, 103 (2d Cir.2003); see also United States v. Smith, 18 U.S. (5 Wheat.) 153, 160-61, 5 L.Ed. 57 (1820) (Story, J.) (identifying "the general usage and practice of nations[;] ... judicial decisions recognising and enforcing that law[;]" and "the works of jurists, writing

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professedly on public laws" as the proper sources of customary international law); A treaty will only constitute sufficient proof of a norm of customary international law if an overwhelming majority of States have ratified the treaty, and those States uniformly and consistently act in accordance with its principles. The evidentiary weight to be afforded to a given treaty varies greatly depending on

(i) how many, and which, States have ratified the treaty, [the more States that have ratified a treaty, and the greater the relative influence of those States in international affairs, the greater the treaty's evidentiary value] and

(ii) the degree to which those States actually implement and abide by the principles set forth in the treaty. [the degree to which States parties actually implement and abide by the principles set forth in the treaty--the evidentiary value of a treaty increases if the States parties have taken tangible action to implement the principles embodied in the treaty. For example, in the United States, a treaty that is self-executing or that has been executed through an Act of Congress--and therefore gives rise to rights legally enforceable in our courts--provides greater evidence of the customs and practices of the United States than a treaty that has not been executed. Similarly, the evidentiary weight of a treaty increases if States parties have taken official action to enforce the principles set forth in the treaty either internationally or within their own borders.]


In its seminal decision in Paquete Habana, the Supreme Court designated "the works of jurists [i.e., scholars] and commentators" as a possible source of customary international law. Paquete Habana, 175 U.S. at 700, 20 S.Ct. 290. However, the Court expressly stated that such works "are resorted to by judicial tribunals, not for the speculations of their authors concerning what the law ought to be, but for trustworthy evidence of what the law really is." Id. (emphasis added), quoted in Filartiga, 630 F.2d at 881. Accordingly,

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under Paquete Habana, United States judicial tribunals may only "resort[ ] to" the works of "jurists and commentators" insofar as such works set forth the current law as it "really is." 175 U.S. at 700, 20 S.Ct. 290 (emphasis added); see also note 26, ante. Conversely, courts may not entertain as evidence of customary international law "speculations" by "jurists and commentators" about "what the law ought to be."

CASE Flores v. Southern Peru Copper Corp.

253 F.Supp.2d 510 S.D.N.Y.,2002. July 16, 2002.

Judge Hon. Charles S. Haight Jr. Appointed by Pres. Ford

Summary of Facts: Peru residents brought personal injury claims against American company, alleging that environmental pollution from company's Peru mining operations caused their asthma and lung disease, and asserting federal jurisdiction under Alien Tort Claims Act (ATCA). Company moved to dismiss.

Holdings (1) Contention that certain levels of environmental pollution within a nation's borders violate human rights was not binding as customary international law under ATCA; (2) Peru was adequate alternate forum; and (3) Public and private interest factors weighed heavily in favor of dismissal on forum non conveniens grounds. Motion granted.

Reasoning/Arguments Adequate alternate forum existed, as required to support American company's motion for dismissal on forum non conveniens grounds of Peru residents' Alien Tort Claims Act (ATCA) personal injury action alleging pollution-caused health problems from company's Peru mining operations; although there was evidence that Peruvian judicial system had been corrupt as recently as 20 months earlier, there was also testimony that improvements had been made since ouster of corrupt previous government, and thus court could not conclude that alternate remedy was so clearly inadequate as to constitute no remedy at all. 28 U.S.C.A. § 1350. Both private and public interest factors weighed heavily in favor of dismissal on forum non conveniens grounds of Peru residents' Alien Tort Claims Act (ATCA) personal injury action against American company alleging pollution-caused health problems from company's Peru mining operations; principal witnesses were in Peru, most or all pertinent documents and premises were in Peru, many witnesses spoke only Spanish and

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all relevant documents were in Spanish, residents' choice of United States forum was motivated by forum-shopping, contingent-fee representation was available in Peru, chosen forum was congested and bore no relation to suit, and Peruvian law would have to be considered by court and jury. 28 U.S.C.A. § 1350.



The requirement that a rule achieve general assent before it becomes binding on all nations as international law is "stringent"; "[w]ere this not so, the courts of one nation might feel free to impose idiosyncratic legal rules upon others, in the name of applying international law." Id.; see also Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 428-30, 84 S.Ct. 923, 11 L.Ed.2d 804 (1964) (expressing reluctance to adjudicate issue of "a state's power to expropriate the property of aliens" under international law, given divergence of opinion between capitalist and communist nations). Thus, a plaintiff must demonstrate that a defendant's alleged conduct violated "well-established, universally recognized norms of international law" in order to establish federal subject matter jurisdiction under the ATCA. A plaintiff must demonstrate that a defendant's alleged conduct violated well- established, universally recognized norms of international law in order to establish federal subject matter jurisdiction under the Alien Tort Claims Act (ATCA). Courts seek to determine whether a rule of international law is well- established and universally recognized, as required for federal jurisdiction under Alien Tort Claims Act (ATCA), by consulting the works of jurists, writing professedly on public law, by the general usage and practice of nations, or by judicial decisions recognizing and enforcing that law. The Law of Nations, as that phrase is used in Alien Tort Claims Act (ATCA), is declared by the Parliament of Nations, and not by judges, trial or appellate, of a particular nation; thus it is for the nations of the world to develop customary international law that identifies those horrific acts that should be universally prohibited. Even if certain conduct is universally prohibited, it is not necessarily incorporated into customary international law.

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While it is not necessary for nations to identify with specificity every factual scenario that violates a particular prohibition under international law, a rule of customary international law must nevertheless be "sufficiently determinate" to make it clear that particular conduct is prohibited. Even if certain conduct is universally prohibited, it is not necessarily incorporated into customary international law. The Second Circuit explained in Filartiga: [T]he mere fact that every nation's municipal law may prohibit theft does not incorporate "the Eighth Commandment, 'Thou Shalt not steal' ... (into) the law of nations." It is only where the nations of the world have demonstrated that the wrong is of mutual, and not merely several, concern, by means of express international accords, that a wrong generally recognized becomes an international law violation within the meaning of the statute.

Defenses Beanal v. Freeport-McMoran fails to show that these treaties [International Covenant on Civil and Political Rights, the International Covenant on Economic Social and Cultural Rights, and the Universal Declaration on Human Rights] and agreements enjoy universal acceptance in the international community. The sources of international law cited by Beanal and the amici merely refer to a general sense of environmental responsibility and state abstract rights and liberties devoid of articulable or discernable standards and regulations to identify practices that constitute international environmental abuses or torts.... [F]ederal courts should exercise extreme caution when adjudicating environmental claims under international law to insure that environmental policies of the United States do not displace environmental policies of other governments. Furthermore, the argument to abstain from interfering in a sovereign's environmental practices carries persuasive force especially when the alleged environmental torts and abuses occur within the sovereign's borders and do not affect neighboring countries. The court noted that the "express language of the [Rio] declaration appears to cut against Beanal's claims." Beanal has not demonstrated that cultural genocide has achieved universal acceptance as a discrete violation of international law.

Other Information of

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Interest CASE Forti v. Suarez, 694 F. Supp. 707 (N.D. Cal. 1988)

Judge D. Lowell Jensen, Appointed by Reagan

Summary of Facts: Plaintiff Argentine citizens brought a motion seeking

reconsideration of the court's dismissal of their claims for the international torts of "causing disappearance" and "cruel, inhuman or degrading treatment." Their initial complaint under the Alien Tort Statute, 28 U.S.C.S. § 1350, alleged numerous causes of action against defendant, a former Argentine general.

Holdings Plaintiff Argentine citizens met their burden of showing an international consensus as to the status and content of the international tort of "causing disappearance." Plaintiffs' motion to reconsider was granted as to that count and the claim was reinstated. The court held that plaintiffs again failed to establish international consensus as to what constituted "cruel, inhuman or degrading treatment" and denied their motion as to that count

Reasoning/Arguments The court ruled that the submitted materials were sufficient to establish the existence of a universal and obligatory international proscription of the tort of "causing disappearance." However, the court held that plaintiffs' submissions failed to establish universal consensus as to what constituted "cruel, inhuman or degrading treatment." Absent consensus in the international community as to the tort's content, it was not actionable under the Alien Tort Statute. The motion to reconsider was denied as to plaintiffs' cruel, inhuman or degrading treatment claim and granted regarding the tort of causing disappearance.

Int’l Law Norms “The Alien Tort Statute, 28 U.S.C.S. § 1350, provides a cause of action for "international torts," which are defined as follows: Violations of current customary international law, which are characterized by universal consensus in the international community as to their binding status and their content. That is, they are universal, definable, and obligatory international norms.”

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Customary Law Analysis Defenses Other Info of Interest CASE Friedman v. Bayer Corp., Not Reported in F.Supp.2d

E.D.N.Y.,1999. 1999 WL 33457825 Judge Hon. Charles P. Sifton, appointed in 1977 by President Carter Summary of Facts: Plaintiffs bring this action against defendants the Bayer

Corporation, the Krupp Corporation, and the Siemens Corporation, for compensatory and punitive damages as a result of injuries allegedly suffered at the hands of defendants' German parent corporations during World War II.

Holdings Motion to dismiss is granted. Reasoning/Arguments It is undisputed that plaintiffs are United States citizens.

Therefore, they may not properly assert a cause of action under the ATCA.

Int’l Law Norms Customary Law Analysis Defenses Other Info of Interest CASE Giro v. Estevill 1998 WL 63407

S.D.N.Y.,1998. Judge Hon. Louis L. Stanton, appointed in 1985 by President Reagan Summary of Facts: The injured parties claimed that the judge intervened in a case

in Spain, changed the individual injured party's status from witness to criminal defendant, allegedly issued an arrest warrant for him, and told the Spanish press about the warrant. After reading the article, a bank official in New York declined to refinance the corporate injured party's loans. When the assigned judge returned from vacation, the arrest warrant was immediately canceled. The judge argued that the injured parties could not make a prima facie showing of personal jurisdiction, which exempted from its coverage defamation claims and claims that sounded in defamation. The court granted the motion, dismissing the slander claim because it was a form of defamation, the tortious interference claim because the only alleged interference was the judge's statement to the press, and so much of the claim of intentional infliction of emotional distress as rested on that statement. Finally, the individual injured party's claim of emotional distress was dismissed because the judge could not have reasonably foreseen that his actions would have consequences in New

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York. Holdings The court granted the judge's motion to dismiss the injured

parties' complaint alleging intentional and unjustified interference with an advantageous relationship, slander, and intentional infliction of severe emotional distress in connection with a trial in Spain.

Reasoning/Arguments Int’l Law Norms Customary Law Analysis Defenses Other Info of Interest CASE Goldstar (Panama) S.A. v. U.S.,

967 F.2d 965 (4th Cir. 1992)

Judge Hon. Ervin, Samuel James III, Appointed by Pres. Jimmy Carter

Summary of Facts: Panamanian businesses argued that United States breached

the Hague Convention by failing to restore public order and safety; this breach constituted a waiver of sovereign immunity, and jurisdiction was proper under the Alien Tort Statute, 28 U.S.C.S. § 1350. The court held that the Hague Convention was not self-executing, as it did not, by itself, create a private right of action for its breach; therefore, jurisdiction could not be maintained under the Alien Tort Statute.

Holdings

Reasoning/Arguments “Having found that neither the Alien Tort Statute nor the FTCA provides the requisite waiver of sovereign immunity by the United States Government to allow Goldstar's action to proceed, we decline to address the Government's alternative argument that the action presents a non-justiciable political question. Instead, we hold that the district court correctly dismissed the case for lack of subject matter jurisdiction. The order of the district court is hereby affirmed.”

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“International treaties are not presumed to create rights that are privately enforceable. See Head Money Cases, 112 U.S. 580, 598-99, 28 L. Ed. 798, 5 S. Ct. 247 (1884); Foster v. Neilson, 27 U.S. (2 Pet.) 253, 314, 7 L. Ed. 415 (1829). Courts will only find a treaty to be self-executing if the document, as a whole, evidences an intent to provide a private right of action. United States v. Thompson, 928 F.2d 1060, 1066 (11th Cir.), cert. denied, 116 L. Ed. 2d. 222, 112 S. Ct. 270 (1991); Diggs v. Richardson, 555 F.2d 848, 851 (D.C. Cir. 1976). The Hague Convention does not explicitly provide for a privately enforceable cause of action. Moreover, we find that a reasonable reading of the treaty as a whole does not lead to the conclusion that the signatories intended to provide such a right.”


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CASE Greenham Women against Cruise Missiles v. Reagan,

591 F. Supp. 1332 ((S.D.N.Y. 1984)

Judge Edelstein, Appointed by Truman

Summary of Facts: Defendants, President of the United States, United States Secretary of Defense, United States Secretary of the Air Force, and United States Secretary of the Army, moved to dismiss for lack of jurisdiction, pursuant to Fed. R. Civ. P. 12(b), the complaint by plaintiffs, British women, British women's association, United States citizen, and two United States congressman. The complaint sought to enjoin the deployment of 96 cruise missiles. In their complaint, plaintiffs argued that the deployment of the cruise missiles subjected them to tortious injury actionable under the Alien Tort Claims Act, 28 U.S.C.S. § 1350, or violated their rights guaranteed by the Fifth and Ninth Amendments to the United States Constitution, or violated their constitutional rights as members of Congress to declare war.

Holdings The court granted defendants' motion to dismiss the complaint filed by plaintiffs for injunctive relief against the deployment of cruise missiles.

Reasoning/Arguments “In their reply papers defendants further assert that plaintiffs have failed to state a claim upon which relief can be granted. This issue, however, is not the subject matter of the instant motion and is thus not properly before the court. Even if it were, however, the court need not reach the issue since the court finds that this case presents a non-justiciable political question.”

Int’l Law Norms Customary Law Analysis Defenses In their dismissal motion, defendants argued that all

plaintiffs' claims were non-justiciable. The court held that plaintiffs were not entitled to injunctive relief, because: (1) there were no judicially discoverable and manageable standards to determine the effects of deploying the cruise missiles; and (2) the nature of the relief sought by plaintiffs directly impinged upon the foreign policy of the United States, which was textually committed by the United States

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Constitution to the political branches of government.

Other Info of Interest CASE Guinto v. Marcos, 654 F. Supp. 276 (S.D. Cal. 1986)

Judge John S. Rhoades, Appointed by Reagan

Summary of Facts: Defendants, the former Philippine president and his aides

and associates, filed a motion to dismiss plaintiff filmmakers' first amended complaint.

Holdings The court granted the former president and his aides and associates' motion to dismiss the filmmakers' first amended complaint. No jurisdiction established under ATCA.

Reasoning/Arguments Section 1350 provides a right to an alien, if a tort has been committed against him or her in violation of a treaty of the United States, or the "law of nations." Plaintiffs failed to assert conduct that constitutes a violation of the law of nations.

Int’l Law Norms “Subsequently, courts held that the law of nations "deals primarily with the relationship among nations rather than among individuals," or that "if a controversy existing between individuals neither involves internal relations nor impinges upon a nation's exercise of its sovereignty, jurisdiction will not lie under [§ 1350]." Cohen v. Hartman, 634 F.2d 318, 319 (5th Cir. 1981). However, the Second Circuit in Filartiga v. Pena-Irala, 630 F.2d 876, 880 (1980), in holding that "an act of torture committed by a state official against one held in detention violates established norms of the international law of human rights, and hence the law of nations”


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CASE Hamid v. Pricewaterhouse, 51 F.3d 1411 (9th Cir. 1995)

Judge Hon. ANDREW J. KLEINFELD, Appointed by Pres.

George HW Bush

Summary of Facts: Appellant depositors sought review of the judgment of the United States District Court for the Central District of California, which dismissed appellants' class action against appellees, bank owners, a foreign country, and related firms, that alleged fraud, breach of fiduciary duty, and misappropriation of funds in appellees' operation of a bank and raised civil RICO claims.

Holdings The court affirmed the dismissal of appellant depositors' class action suit against appellees, bank owners, a foreign country, and related firms, because appellants lacked standing to bring civil RICO claims, they did not allege violations of international law to support a claim under the Alien Tort Statute, and the district court judge properly refused to recuse herself.

Reasoning/Arguments ……………………. International Law Norms Discussed

………………………..

Customary Law Analysis …………………………… Defenses ……………………………. Other Information of Interest

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CASE Hilao v. Estate of Marcos 103 F.3d 789

C.A.9 (Hawai'i),1996. Judge Hon. Betty Binns Fletcher, appointed in 1979 by President

Carter Summary of Facts: Political opponents of President Ferdinand Marcos of the

Philippines brought action under Alien Tort Claims Act seeking to recover from Marcos' estate for damages caused by human-rights abuses occurring during Marcos' tenure in office.

Holdings (1) evidence was for jury on issue of plaintiff's entitlement to damages for pain and suffering; (2) district court had diversity jurisdiction over alleged noninternational claims for assault and battery and intentional infliction of emotional distress; (3) plaintiff was prejudiced by dismissal of his property damage claim, which was cognizable under court's diversity jurisdiction; and (4) plaintiffs were not prejudiced by district court's refusal to instruct jury on their claim for cruel, inhuman, or degrading treatment.

Reasoning/Arguments Although Alien Tort Claims Act grants district court jurisdiction only of torts committed in violation of international law, district court in suit brought under Act had diversity jurisdiction over alleged noninternational claims in view of fact that plaintiff was United States citizen and California resident and defendant was Philippine citizen and Hawai'i resident at time of suit.

Int’l Law Norms Customary Law Analysis Content of international law is determined by reference to

the customs and usages of civilized nations, and, as evidence of such, to the works of jurists and commentators. Customary international human-rights law prohibits prolonged arbitrary detention.

Defenses Other Info of Interest CASE Hilao v. Estate of Marcos 103 F.3d 767

C.A.9 (Hawai'i),1996. Judge Hon. Betty Binns Fletcher, appointed in 1979 by President

Carter Summary of Facts: Philippine nationals brought human rights class action

against estate of former president of the Philippines, seeking damages for human-rights abuses committed against them or their decedents.

Holdings (1) district court had jurisdiction over class action; (2) tort

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claims against former president were tolled until he left office; (3) claims survived death of former president; (4) district court properly certified class as defined; (5) claims satisfied typicality requirement for class action; (6) statements made by members of Philippine military or paramilitary forces to victims and witnesses were not hearsay; (7) district court properly relied on military members' statements to victims and expert testimony in determining that agency relationship existed between former president and military members who tortured victims, for purposes of hearsay exception for statements of agents; (8) certain documents were admissible under public records exception to hearsay rule; (9) former president could be held liable for human rights abuses committed by military under his command; (10) jury instruction on proximate cause was not misleading or inadequate; (11) award of exemplary damages against estate was properly allowed under Philippine law; (12) district court's decision to hold exemplary-damage phase of trial before compensatory-damage phase did not violate estate's due process rights; (13) jury instructions on exemplary damages did not violate due process; (14) district court did not abuse its discretion by deciding to trifurcate trial; and (15) use of statistical sample of class claims in determining compensatory damages did not violate due process. aff’d.

Reasoning/Arguments Former president of Philippines could be held liable for human rights abuses committed by military under his command in suit under Torture Victim Protection Act (TVPA) and Alien Tort Claims Act, upon proof that president knew of such conduct by military and failed to use his power to prevent it; conduct involved violations of jus cogens norm of international law parallel to type of war crimes for which international law imposes "command responsibility.

Int’l Law Norms Customary Law Analysis Defenses Other Info of Interest CASE Hirsh v. State of Israel 133 F.3d 907 (Table)

C.A.2 (N.Y.),1997. Judge Hon. Roger J. Miner, appointed in 1985 by President ReaganSummary of Facts: Facts not considered in this appeal. Holdings Affirmed without comment.

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Reasoning/Arguments Int’l Law Norms Customary Law Analysis Defenses Other Info of Interest CASE Hirsh v. State of Israel 962 F.Supp. 377

S.D.N.Y.,1997. Judge Hon. John F. Keenan, appointed in 1983 by President

Reagan Summary of Facts: Holocaust survivors brought action against Israel and

Germany to recover reparation payments allegedly due them pursuant to terms of treaty entered into by the two countries. Israel and Germany moved to dismiss for lack of subject matter jurisdiction.

Holdings (1) Germany did not implicitly waive its immunity under Foreign Sovereign Immunities Act (FSIA) by submitting letter to court that failed to raise defense of immunity; (2) Germany's alleged violation of jus cogens norms did not constitute implicit waiver of its immunity; (3) failure of Israel and Germany to make reparation payments did not constitute "commercial activity" within meaning of FSIA; (4) survivors' action did not fall within FSIA's property exception to immunity; (5) action did not fall within FSIA's noncommercial tort exception; (6) action did not fall within FSIA's arbitration exception; and (7) alien tort statute did not provide basis for exercise of jurisdiction over the action.

Reasoning/Arguments ATCA did not provide basis for federal district court's exercise of jurisdiction over holocaust survivors' action against Israel and Germany to recover reparation payments allegedly owed to them under treaty.

Int’l Law Norms General rule is that foreign state is presumptively immune from jurisdiction of United States courts unless court finds that one of specific exceptions to immunity provided in Foreign Sovereign Immunities Act (FSIA) applies.

Customary Law Analysis Jus cogens norms proscribe limited set of activities so universally condemned by international community that they cannot be undertaken under any circumstances.

Defenses Lack of subject matter jurisdiction. Other Info of Interest CASE Huynh Thi Anh v. Levi, 586 F.2d 625 (6th Cir. 1978)

Judge MERRITT, Appointed by Jimmy Carter

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Summary of Facts: Appellants brought a claim for custody of alien children who were placed in a state's foster care system. The children were the grandchildren of appellant. They were evacuated from South Vietnam at the end of the Vietnam War. The foster parents in the United States sought to adopt the children and appellants brought their claim for custody in federal court under international law seeking to enjoin the adoption proceedings. The district court dismissed appellants' complaint on the basis that they failed to exhaust state judicial remedies. The theory of the grandmother's case is that she is entitled to immediate custody of the children as a matter of fundamental biological and moral right recognized by international law and incorporated in our federal domestic law by various constitutional, treaty and statutory provisions, including ATCA.

Holdings Finding that the adoption of the alien children was a matter better suited to state and local proceedings, the court upheld the dismissal of appellants' complaint seeking to enjoin the adoption of the children.

Reasoning/Arguments Int’l Law Norms The "law of nations," to the extent that it speaks on the

subject, does not demand a particular substantive rule regarding custody of alien children. It refers us to the law of Michigan. Michigan courts are in the best position to apply their own law in this respect.

Customary Law Analysis Defenses Other Info of Interest CASE Hwang Geum Joo v. Japan

332 F.3d 679 C.A.D.C.,2003. Decided June 27, 2003.

Judge Hon. Douglas H. Ginsburg Appointed by Pres. Reagan

Summary of Facts: Former "comfort women" sued Japan, alleging they were abducted and forced into sexual slavery by Japanese Army prior to, and during, World War II. The United States District Court for the District of Columbia, 172 F.Supp.2d 52, Henry

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H. Kennedy, Jr., J., dismissed, and appeal was taken. Holdings The Court of Appeals, Ginsburg, Chief Judge, held that:

(1) commercial activity exception to Foreign Sovereign Immunities Act (FSIA) was not retroactively applicable, and (2) Japan's alleged violations of jus cogens norms did not constitute implied waiver of immunity under FSIA. Affirmed.

Reasoning/Arguments “We need not decide whether the Alien Tort Statute creates a cause of action because it clearly does not confer jurisdiction over a foreign sovereign. Nor, because the district court did not have jurisdiction of this case pursuant to the FSIA, need we consider whether the political question doctrine would also bar its adjudication.”


Customary Law Analysis Defenses . Other Information of Interest

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CASE Hwang Geum Joo v. Japan

172 F.Supp.2d 52 D.D.C.,2001. Oct. 4, 2001.

Judge Hon. Henry H. Kennedy Jr., Appointed by Pres. Clinton

Summary of Facts: Former "comfort women" sued Japan, alleging they were forcibly abducted and forced into sexual slavery by Japanese Army prior to, and during, World War II. Japan moved to dismiss.

Holdings (1) Japan's acceptance of Potsdam Declaration at end of war was not waiver of immunity under Foreign Sovereign Immunities Act (FSIA); (2) Japan's alleged violations of jus cogens norms did not constitute implied waiver of immunity under FSIA; (3) "comfort women" system was not commercial activity under FSIA; and (4) suit presented nonjusticiable political question. Motion granted.

Reasoning/Arguments Claims against Japan by women allegedly abducted by Japanese Army and forced into sexual slavery as "comfort women" prior to, and during, World War Two presented nonjusticiable political questions, even if Japan's alleged conduct was commercial activity under Foreign Sovereign Immunities Act's (FSIA) exception to immunity for commercial activity having direct effect in United States; post-war claims settlement regime was complex, and exclusively constructed through political branches, and thus, court was inappropriate forum to resolve claims. 28 U.S.C.A. § 1605(a)(2).


State violates "jus cogens" if it practices, encourages, or condones: (1) genocide, (2) slavery or slave trade, (3) murder or causing disappearance of individuals, (4) torture or other cruel, inhuman, or degrading treatment or punishment, (5) prolonged arbitrary detention, (6) systematic racial discrimination, or (7) consistent pattern of gross violations of internationally recognized human rights.


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CASE Industria Panificadora, S.A. v. U.S.,

957 F.2d 886 (C.A.D.C.,1992) Judge Hon. MIKVA, Chief Judge, and RUTH BADER

GINSBURG and D.H. GINSBURG (PER CURIAM) Summary of Facts: Appellant businesses sought review of a decision of the

United States District Court for the District of Columbia, which dismissed their suit under the Federal Tort Claims Act (FTCA), 28 U.S.C.S. § 2671 et seq., and the Alien Tort Claims Act (ATCA), 28 U.S.C.S. § 1350, alleging that they suffered property damage during looting that occurred in the wake of the invasion of Panama by appellee United States.

Holdings The dismissal of the businesses' suit was affirmed. See Industria Panificadora, S.A. v. U.S., 763 F. Supp. 1154 (D.D.C. 1991)

Reasoning/Arguments ……………………. International Law Norms Discussed

………………………..


CASE Industria Panificadora, S.A. v. U.S.,

763 F.Supp. 1154 (D.D.C. 1991) Judge Hon. STANLEY S. HARRIS, Appointed by Pres. Ronald Reagan Summary of Facts: Defendant US government brought an original action and filed a

motion to dismiss plaintiff foreign corporations' complaint to recover damages for property losses, under the Federal Tort Claims Act (FTCA), 28 U.S.C.S. §§ 2671-2680, and under the Alien Tort Claims Act (ATCA), 28 U.S.C.S. § 1350.. During a brief United States invasion, their properties were looted, burned, and destroyed by Panamanian civilians while the Panamanian Defense Force, whose duties included the maintenance of public order, was engaged militarily with the U.S. Armed Forces. Attributing their property damages to the government's alleged negligence, the corporations submitted claims to the United States Department of State for compensation.

Holdings The court granted the government's motion to dismiss the corporations' complaint to recover damages for property losses, under two federal statutes, and dismissed the case.

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The court held that because the corporations' claim fell within the discretionary function exception to the FTCA, sovereign immunity was not waived and the court was without jurisdiction to hear the case. According, the court granted the government's motion and dismissed the case.;

Reasoning/Arguments


………………………..


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CASE Iwanowa v. Ford Motor Co. 67 F.Supp.2d 424

D.N.J.,1999. Judge Hon. J. A. Greenaway Jr, appointed in 1996 by President

Clinton. Summary of Facts: Claimant sued German manufacturer of motor vehicles and

its American parent, seeking compensation and damages for forced labor in manufacturer's factory, imposed during World War II.

Holdings (1) postwar treaty and agreement tolled ten-year statute of limitations on claims under Alien Tort Claims Act (ATCA) until 1991; (2) statute of limitations under ATCA had run on claims against parent corporation; (3) ATCA claim against manufacturer would be dismissed, as it was intent of treaties and agreements that individual claims be resolved as part of reparations discussions between governments; (4) statute of limitations had run on claims under state law and German law; (5) claim was barred under political question doctrine; and (6) claim was barred under principles of comity.

Reasoning/Arguments Int’l Law Norms The law of nations may be ascertained by consulting the

works of jurists writing professedly on public law, by the general usage and practice of nations, or by judicial decisions recognizing and enforcing that law.

Customary Law Analysis The use of unpaid, forced labor during World War II violated clearly established norms of customary international law. Customary international aw becomes a jus cogens norm if the international community recognizes the norm as so fundamental that it is nonderogable. Courts may rely upon treaties (such as the Hague and Geneva Conventions) as evidence of an emerging norm of customary int’l law.

Defenses The intent of the post-WWII treaties was to prohibit these kinds of suits. International comity and treaty law.

Other Info of Interest CASE Jaffe v. Boyles, 616 F. Supp. 1371 (W.D.N.Y. 1985)

Judge John T. Curtin, appointed by L.B. Johnson

Summary of Facts: Plaintiffs. Canadian residents, claim that the defendants

violated plaintiffs' rights under 42 U.S.C. §§ 1983 and 1985, committed torts cognizable under the Alien Tort Act, 28

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U.S.C. § 1350, committed torts in violation of New York State law. Plaintiffs maintain that defendants violated the law of nations, the United Nations Charter, and, specifically, the Treaty of Extradition between the United States of America and Canada, 27 UST 983, T.I.A.S. No. 8237. They urge that, although Jaffe's initial seizure in Toronto violated Canadian law and the law of nations, the treaty violation did not occur until Jaffe was forced across the United States border, the point at which the claim "arose."

Holdings The court has determined that venue is not proper in this district.

Reasoning/Arguments Pursuant to 28 U.S.C. § 1406(a), the case may be dismissed, or in the interests of justice, transferred to the district in which venue is proper. In the interests of justice, the action should be transferred to the Middle District of Florida.

Int’l Law Norms Plaintiffs maintain that defendants violated the law of nations, the United Nations Charter, and, specifically, the Treaty of Extradition between the United States of America and Canada, 27 UST 983, T.I.A.S. No. 8237.

Customary Law Analysis Defenses Other Info of Interest CASE Jama v. U.S. I.N.S. 22 F.Supp.2d 353

D.N.J.,1998. Judge Hon. Dickinson R. Debevoise, appointed in 1979 by

President Carter. Summary of Facts: Alien asylum seekers sued the Immigration and

Naturalization Service (INS), INS officials, contractor and contractors employees for abuse allegedly suffered while detained in contractor's facility under contract with the INS.

Holdings (1) the Alien Tort Claims Act (ATCA) provides both jurisdiction and a cause of action for claims under customary international law; (2) the totality of the treatment to which aliens allegedly were subjected would violate customary international law; (3) there is no absolute preclusion of international law claims under the ACTA by the availability

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of domestic remedies for the same alleged harm; (4) the United States has not waived its sovereign immunity under the ATCA; (56) it would be premature, on motion to dismiss, to decide various claims asserted, including whether INS officials violated customary international law; (6) contractor and its employees could be sued under the ATCA; (7) there was proper presentation of administrative claims as to some of the damages alleged; and (8) providing evidence of authority of attorney to file administrative claim is not jurisdictional, for purposes of suit under the Federal Tort Claims Act (FTCA).

Reasoning/Arguments Int’l Law Norms Law of nations may be ascertained by consulting the work 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. Highly relevant to the inquiry whether international law confers a fundamental right upon all people are treaties, internationally or regionally adopted covenants or declarations of human rights and foreign policy goals of the United States and other countries in the field of human rights. Evolving standards of international law govern who is within the Alien Tort Claims Act's (ATCA's) jurisdictional grant. There is no absolute preclusion of international law claims under the Alien Tort Claims Act (ACTA) by the availability of domestic remedies for the same alleged harm, at least where domestic law is consistent with international norms; plaintiffs can seek relief on alternative grounds.

Customary Law Analysis Defenses Other Info of Interest CASE Jogi v. Piland 131 F.Supp.2d 1024

C.D.Ill.,2001 Judge Hon. Harold Albert Baker, appointed in 1978 by President

Carter Summary of Facts: Plaintiff brought ATCA suit after being arrested and held in

the Indian Consulate. Holdings County's failure to inform Indian citizen of his right under

Vienna Convention on Consular Relations to notify his consulate of his arrest did not constitute "tort" sufficient to support claim under Alien Tort Claims Act, absent allegation of specific prejudice or harm from Indian consulate's lack of

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involvement, where sheriff advised alien of his Miranda rights, which he invoked, and attorney was appointed next day to represent alien

Reasoning/Arguments Only those treaty provisions that would actually give rise to a tort action by reason of their violation are implicated by the Alien Tort Claims Act. In this case, the plaintiff has alleged a violation of a United States treaty; namely, he alleges that the defendants violated Article 36 the Vienna Convention. He has not, however, alleged a tort. Implicit in any wrong labeled a tort is an element of damages

Int’l Law Norms Customary Law Analysis Defenses Other Info of Interest

CASE Jones v. Petty Ray Geophysical Geosource, Inc., 722 F.Supp. 343 (S.D. Tex. 1989)

Judge Hon. Lake, Simeon Timothy III, Appointed by Pres. Ronald Reagan

Summary of Facts: This action arises from the death of Texas resident, Evan Jones, while working as an engineer for Geophysical Geosource, Inc. in the Republic of Sudan. The plaintiff alleges that the defendants negligently failed to provide the decedent with a safe place to work, adequate military/police protection or failed to move him from the area or warn him of danger from nearby insurgents. Before the Court is the Republic of Sudan's motion to dismiss for lack of subject matter and personal jurisdiction or, in the alternative, a motion for transfer of venue to the District of Columbia.

Holdings “[T]he Court finds that the Republic of Sudan is immune from suit in the United States under the Foreign Sovereign Immunity Act (FSIA), 28 U.S.C. § 1604 and that the Court therefore lacks subject matter jurisdiction over this action. Since this Court lacks subject matter jurisdiction, it also lacks personal jurisdiction as mandated by 28 U.S.C. § 1330(b). The Court also finds that it lacks jurisdiction to hear this action against Sudan under the Alien Tort Statute, 28 U.S.C. § 1350.”

”The plaintiff's complaint does not allege that the plaintiff is an alien. In addition, the plaintiff cannot show that her cause of action gives rise to a violation of treaties of the United States or the law of nations. Section 1350 merely serves as an entrance into the

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federal courts and in no way provides a cause of action to any plaintiff.”


“Somewhere in the law of nations or in the treaties of the United States, the plaintiff must discern and plead a cause of action that, if proved, would permit this Court to grant relief. Courts have narrowly construed the causes of action available to private litigants under the law of nations. See, e.g., Cohen v. Hartman, 490 F. Supp. 517 (S.D.Fla. 1980), aff'd, 634 F.2d 318 (5th Cir. 1981) (summarizing the scarce case law in this area).”


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CASE Kadic v. Karadzic,

70 F.3d 232 (2nd Cir. 1995) Judge Hon. John O. Newman, Appointed by Pres. Carter Summary of Facts: Plaintiffs, victims and representatives of victims of

atrocities, brought an action against defendant, leader of the insurgent Bosnian-Serb forces, which the trial court dismissed. The court reversed and held that there was subject matter jurisdiction under the ATCA, because aliens brought an action for a tort committed in violation of international law.

Holding

The court reversed the judgment for defendant, leader of a foreign territory, and ruled for plaintiffs, victims and representatives of victims of atrocities, because there was subject matter jurisdiction, defendant could have been liable for genocide, war crimes, and crimes against humanity in his private or official capacity, and there was no immunity from service of process.

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Reasoning/Arguments Genocide, war crimes, torture, and summary execution were against international law and defendant could have been liable as a private individual. Although defendant's foreign territory was not recognized as a formal state, it had the trappings of a state, including sovereignty over people and land. As a result, defendant may have been liable because he was the leader of a de facto government and was acting under color of law when the atrocities occurred. § 2(a) of the Torture Victim Protection Act of 1991 provided for subject matter jurisdiction through the Alien Tort Claim Act.

Because the Alien Tort Act requires that plaintiffs plead a "violation of the law of nations" at the jurisdictional threshold, this statute requires a more searching review of the merits to establish jurisdiction than is required under the more flexible "arising under" formula of section 1331. See Filartiga, 630 F.2d at 887-88. Thus, it is not a sufficient basis for jurisdiction to plead merely a colorable violation of the law of nations. There is no federal subject-matter jurisdiction under the Alien Tort Act unless the complaint adequately pleads a violation of the law of nations (or treaty of the United States).


Filartiga established that courts ascertaining the content of the law of nations "must interpret international law not as it was in 1789, but as it has evolved and exists among the

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nations of the world today."

Customary Law Analysis The liability of private persons for certain violations of customary international law and the availability of the Alien Tort Act to remedy such violations was early recognized by the Executive Branch in an opinion of Attorney General Bradford in reference to acts of American citizens aiding the French fleet to plunder British property off the coast of Sierra Leone in 1795. See Breach of Neutrality, 1 Op. Att'y Gen. 57, 59 (1795). The Executive Branch has emphatically restated in this litigation its position that private persons may be found liable under the Alien Tort Act for acts of genocide, war crimes, and other violations of international humanitarian law. See Statement of Interest of the United States at 5-13.

Defenses ……………………………. Other Information of Interest Restatement (Third) of the Foreign Relations Law of the

United States (1986) ("Restatement (Third)") proclaims: "Individuals may be held liable for offenses against international law, such as piracy, war crimes, and genocide." Restatement (Third) pt. II, introductory note. The Restatement is careful to identify those violations that are actionable when committed by a state, Restatement (Third) § 702, n3 and a more limited category of violations of "universal concern," id. § 404, n4 partially overlapping with those listed in section 702.

CASE Kadic v. Karadzic,

74 F.3d 377 (2nd Cir. 1996) Judge Hon. JON O. NEWMAN, Appointed by Pres. JimmyCarter Summary of Facts: Appellee filed a petition for rehearing urging the court to limit

the application of the ATCA to only those torts contemplated by the Act when it was adopted in 1789. In support of their position, appellee had contended that the phrase "tort only" in the Act had limited its application to only one category of torts: those committed in violation of the law of nations by the crews of vessels in the course of stopping and boarding ships believed to be aiding the enemy in time of war

Holdings The court denied the petition and held that even if the tort of wrongfully boarding in time of war a ship suspected of aiding the enemy was the tort that had prompted the 1st Congress to create federal court jurisdiction for aliens suffering damages in violation of the law of nations or a treaty of the United States, it had not followed that the statute should be confined to one tort. Statutes enacted with one object were frequently drafted in broad terms that applied to situations not within the

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immediate contemplation of the drafters

Reasoning/Arguments “First, Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980), has established as the law of this Circuit that the Alien Tort Act has a broad scope and that courts ascertaining the content of the law of nations "must interpret international law not as it was in 1789, but as it has evolved and exists among the nations of the world today." We have neither the authority nor the inclination to retreat from that ruling. Second, Congress has made clear that its enactment of the Torture Victim Protection Act of 1991 was intended to codify the cause of action recognized by this Circuit in Filartiga, even as it extends the cause of action to plaintiffs who are United States citizens. With a broad reading of the Alien Tort Act settled as the law of this Circuit and codified by Congress as recently as 1991, we decline the invitation to limit the Act to the one category of torts that arguably prompted its enactment.”




CASE Kruman v. Christie's Intern. PLC

129 F.Supp.2d 620 S.D.N.Y.,2001

Judge Lewis Kaplan, appointed in 1994 by President Clinton Summary of Facts: Buyers and sellers at foreign auctions sued auction houses

under the Sherman Act and customary international law, alleging a price fixing conspiracy.

Holdings (1) persons who allegedly were overcharged for auction services in auctions held outside the United States could not sue under United States antitrust laws, and (2) such persons had no claim under customary international law, cognizable under the Alien Tort Claims Act.

Reasoning/Arguments There is no international consensus proscribing price fixing that fairly might be characterized as customary international law, much less an international consensus that price fixing gives rise to tort claims on behalf of victims, for purposes of determining whether court has jurisdiction under Alien Tort Claims Act to hear such claims.

Int’l Law Norms

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Customary Law Analysis "Customary international law," sometimes referred to as the law of nations, consists of those rules that command the general assent of civilized nations.

Defenses Other Info of Interest CASE Kamal v. City of Santa Monica,

221 F.3d 1348 (Table, Text in WESTLAW), Unpublished Disposition, 2000 WL 576433 , 9th Cir.(Cal.), May 11, 2000

Judge Hon. Stephen Reinhardt, appointed in 1980 by President Carter; Hon. Diarmuid F. O'Scannlain, Appointed in 1986 by President Reagan; Hon. William W. Schwarzer, appointed in 1976 by President Ford

Summary of Facts: Appellants argue that their claims pursuant to the Alien Tort Claims Act, regarding alleged violations of the right to seek asylum were improperly dismissed.

Holdings Dismissal of case was proper, aff’d. Reasoning/Arguments Int’l Law Norms Customary Law Analysis Defenses Other Info of Interest CASE Kyler v. Montezuma County

203 F.3d 835 (Table) C.A.10 (Colo.),2000.

Judge Hon. Wade Brorby, appointed in 1988 by President Reagan Summary of Facts: Petitioner alleges that defendants violated his rights under the

United Nations Charter, the Universal Declaration of Human Rights, and the International Covenant on Civil and Political Rights.

Holdings Petitioner is not an alien and is therefore not able to bring suit under ATCA.

Reasoning/Arguments Int’l Law Norms Customary Law Analysis Defenses Other Info of Interest

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CASE Lafontant v. Aristide, 844 F. Supp. 128 (E.D.N.Y. 1994) Judge Hon. Jack B. Weinstein, Appointed by Pres. L. BJohnson Summary of Facts: Plaintiff, a New York resident, sought money damages for

the killing of her husband ordered by the defendant Haitian president, pursuant to U.S. Const. art. 2, § 2, cl. 1 and art. 6, cl. 2; ATCA, "the wrongful death statutes"; the United Nations Charter; the Universal Declaration of the Rights and Duties of Man; and customary international law..

Holdings The court held that it had subject matter jurisdiction, but it could not exercise in personam jurisdiction over the president because of his head-of-state immunity. The court, therefore, dismissed the resident's claim.

Reasoning/Arguments Ordinarily, a proceeding against a head-of-state or government that is in essence a suit against the state is treated like a claim against the state for purposes of immunity. When a head-of-state or government comes on an official visit to another country, he is generally given the same personal inviolability and immunities as are accorded to members of special missions, essentially those of an accredited diplomat.


………………………..

Customary Law Analysis Defenses The president submitted a suggestion of immunity under

22 U.S.C.S. § 254(d), claiming that he was immune from suit because of his status as the head-of-state of the Republic of Haiti. He asked the court to quash service of process and dismiss the action.


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CASE Manliguez v. Joseph

226 F.Supp.2d 377 E.D.N.Y.,2002. Aug. 20, 2002.

Judge Hon. Nicolas Garaufis Appointed by Pres. Clinton

Summary of Facts: Former domestic employee brought action against her former employers, alleging various tort claims, including claim for involuntary servitude.

Holdings (1) employee had implied private right of action under Thirteenth Amendment's enabling statute; (2) employee's allegations were sufficient to state claim for involuntary servitude; (3) involuntary servitude claim was subject to three- year statute of limitations; (4) employee's allegations were sufficient to state claim for conversion; and (5) employee's allegations were sufficient to state claim for negligent misrepresentation.

Reasoning/Arguments There exists a private civil cause of action under Thirteenth Amendment's enabling statute based on involuntary servitude. U.S.C.A. Const.Amend. 13; 18 U.S.C.A. § 1584. It is well-established that the ten-year statute of limitations of the Torture Victims Protection Act ("TVPA") applies to ATCA claims. See e.g., Papa v. United States, 281 F.3d 1004, 1012 (9th Cir.2002); Cabiri v. Assasie- Gyimah, 921 F.Supp. 1189, 1195-96 (S.D.N.Y.1996). As the Ninth Circuit has explained, federal courts apply the TVPA limitations period to ATCA claims because ATCA claims require careful examination of the international obligations of the United States and often entail preparation that would be stymied by requiring imposition of the time restrictions of state tort actions. See Papa, 281 F.3d at 1012. Therefore, in accordance with the consensus of federal courts that the TVPA is the both the most analogous statute and the one that best accommodates federal policies, the TVPA ten-year statute of limitations applies to Plaintiff's ATCA claim. Plaintiff filed her ATCA claim well within the ten-year window provided by the TVPA. Accordingly, the court declined to dismiss Plaintiff's ATCA claim on the grounds that it is untimely.

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CASE Maugein v. Newmont Mining Corp.

298 F.Supp.2d 1124 D.Colo.,2004. Jan. 15, 2004.

Judge Hon. Richard P. Matsch, Appointed by Pres. Nixon

Summary of Facts: French citizen who served as consultant to Australian mining company and company in which French government held interest in connection with their dispute with other members of joint venture over ownership rights in Peruvian gold mine brought action against, inter alia, other members of joint venture and their subsidiaries holding ownership interests in mine, asserting claims pursuant to Racketeer Influenced and Corrupt Organizations Act (RICO) and Alien Tort Claims Act and seeking to recover for lost property interests in mining assets and injury to his business interests and reputation. Defendants moved to dismiss.

Holdings (1) exercise of jurisdiction over challenged conduct under RICO's civil remedy provisions was not warranted; (2) allegations did not support claim under RICO; and (3) allegations did not support claims under Alien Tort Claims Act

Reasoning/Arguments United States' interests in preventing American company and its officers from retaining benefits of alleged conspiracy to affect judicial processes of Peruvian government and exploitation of mineral resources in Peru were heavily outweighed by interests of Republic of Peru in addressing alleged wrongful conduct, precluding district court's exercise of jurisdiction over such conduct under civil remedies of Racketeer Influenced and Corrupt Organizations Act (RICO) in action brought by French citizen against American company and its officers, two Peruvian corporations, two citizens of Peru, and Australian citizen. 18 U.S.C.A. § 1961 et seq.


French citizen failed to state claim under Alien Tort Claims Act based on alleged violations of treaties prohibiting bribery

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in international transactions and requiring fair, impartial, and independent tribunals when citizen's claimed injuries and losses were not proximately caused by, nor target of, alleged corruption of adjudicatory processes employed in mine ownership disputes in Peru. 28 U.S.C.A. § 1350.


Although a tort under American law and likely the domestic law of other nations, alleged defamation of French citizen's personal character and reputation was not subject of proscriptions of the law of nations, nor of treaties or other sources of international law upon which citizen relied, including Organization for Economic Cooperation and Development's Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, Universal Declaration of Human Rights, International Convention on Civil and Political Rights, and Inter-American Convention Against Corruption, and thus did not support claims under Alien Tort Claims Act. 28 U.S.C.A. § 1350.

Defenses ……………………………. Other Information of Interest

Courts have reached differing conclusions as to the requirements for a treaty to provide a private remedy in tort. Some have drawn a distinction between those treaties that are "self-executing" and those that require implementing domestic legislation. E.g., Jama v. U.S. I.N.S., 22 F.Supp.2d 353, 362 (D.N.J.1998). What constitutes tortious conduct under the "law of nations" is even less clear. It is not necessary to clear a path through this thicket to decide that Maugein's claim is insufficient. The corruption of the adjudicatory processes employed in the mine ownership disputes in Peru was not the proximate cause of his claimed injuries and losses. His economic interests, however characterized, were not the target of that conduct. Defamation of the plaintiff's personal character and reputation is a tort under American law and, presumably, the domestic law of many other nations. It is not, however, a subject of the proscriptions of the law of nations or any of the treaties and sources of international law cited in this case.

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CASE In re Estate of Ferdinand E. Marcos Human Rights Litigation, 978 F.2d 493 (9th Cir. 1992)

Judge Hon. Pamela Ann Rymer, Appointed by Pres. George H.W. Bush

Summary of Facts: Defendant foreign official sought review of an order from the United States District Court for the District of Hawaii, which entered a default judgment for plaintiff mother of torture victim in the mother's wrongful death suit..

Holdings The court affirmed the default judgment for the mother. Reasoning/Arguments The court held that the official was not acting within any

official mandate when the tort occurred, so the FSIA was not triggered and could not provide subject matter jurisdiction over the suit. The court, however, held that the district court properly asserted jurisdiction under the Alien Tort Statute because the torture of the victim was clearly a violation of international law, which triggered the district court's exercise of jurisdiction over the case. The court rejected the official's claim that the extension of jurisdiction to the district court violated the "arising under" clause of U.S. Const. art. III.


“The "Arising Under" Clause of U.S. Const. article III is construed differently, and more broadly, than the "arising under" requirement for federal question jurisdiction under 28 U.S.C.S. § 1331. The many limitations which have been placed on jurisdiction under § 1331 are not limitations on the constitutional power of Congress to confer jurisdiction on the federal courts. The law of nations is part of federal common law. International law is part of the United State's law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for their determination. Thus, in addition to resolving a defendant's immunity, for a court to determine whether a plaintiff has a claim for a tort committed in violation of international law, it must decide whether there is an applicable norm of international law, whether it is recognized by the United States, what its status is, and whether it was violated in the particular case. Congress had power through the "Arising Under" Clause of U.S. Const. art. III to enact the Alien Tort Statute.”

Customary Law Analysis …………………………… Defenses On appeal, the official challenged the district court's

subject matter jurisdiction over the suit, claiming that the Foreign Sovereign Immunities Act (FSIA) made her immune from the suit.


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CASE M.G. Anonymous v. I.N.S. 1996 WL 648975

S.D.N.Y.,1996. Judge Hon. Denny Chin, appointed in 1994 by President Clinton Summary of Facts: Plaintiffs contend that the defendant Immigration and

Naturalization Service ("I.N.S.") has denied political asylum to Israeli nationals on a discriminatory basis. Asserting claims under the United States Constitution, the Federal Tort Claims Act, the Alien Tort Statute, and a United Nations convention, plaintiffs seek broad equitable relief, compensatory damages, and $100 million in punitive damages.

Holdings Dismissed for lack of subject matter jurisdiction and failure to exhaust local remedies.

Reasoning/Arguments The first fatal flaw in the complaint is that it fails to allege that plaintiffs have even applied for political asylum, much less been rejected. Individuals appealing a denial of asylum by I.N.S. may only file suit in federal court after they have exhausted their administrative remedies by obtaining a final denial of their asylum applications from the Board of Immigration Appeals. Because plaintiffs here fail to allege that they have done so, this Court lacks subject matter jurisdiction to hear this complaint.

Int’l Law Norms Customary Law Analysis Defenses Failure to exhaust local remedies, lack of subject matter

jurisdiction. Other Info of Interest CASE Mendonca v. Tidewater, Inc, 159 F.Supp.2d 299

E.D.La.,2001. Judge Hon. Helen G. Berrigan, appointed in 1994 by President

Clinton Summary of Facts: Allegations by foreign employee that private employer

discriminated against him because of his race or his nationality by withholding his passport, threatening damage to his car, and forcing him to submit false submission or bribes regarding taxes in native country.

Holdings Plaintiff failed to state a claim, dismissed. Reasoning/Arguments Did not state claim under the Alien Torts Statute, which gives

federal courts jurisdiction over suits by aliens for tort committed in violation of law of nations; despite existence of treaties concerning protection of civil rights, and denouncing racial discrimination, employee failed to show that treaties enjoyed universal acceptance, or referred to more than general

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sense of responsibility or abstract rights, and thus claims did not implicate the "law of nations."

Int’l Law Norms The standards by which nations regulate their dealings with one another inter se constitute the 'law of nations.' These standards include the rules of conduct which govern the affairs of this nation, acting in its national capacity, in relationships with any other nation. A violation of the law of nations may involve a violation by individuals of standards, rules or customs affecting the relationship between states or between an individual and a foreign state where those standards, rules or customs are used by those states for their common good and/or in dealings inter se.

Customary Law Analysis The law of nations is defined by customary usage and clearly articulated principles of the international community.

Defenses Other Info of Interest CASE Mehinovic v. Vuckovic

198 F.Supp.2d 1322 N.D.Ga.,2002. April 29, 2002.

Judge Hon. Marvin H. Shoob Appointed by Pres. Carter

Summary of Facts: Muslim victims of torture and other human rights abuses in Bosnia-Herzegovina brought action under Alien Tort Claims Act (ATCA) and Torture Victim Protection Act (TVPA) against former Bosnian Serb police officer.

Holdings (1) officer liable for torture, cruel and inhumane treatment, arbitrary detention, violations of the law of war, and crimes against humanity under international law, and (In addition to bearing direct responsibility for abuses against plaintiffs, defendant Vuckovic also may be held liable for aiding and abetting others in acts against plaintiffs that violate customary international law. Plaintiffs have demonstrated that Vuckovic acted in concert with others in committing many of the abuses suffered by plaintiffs.) (2) officer liable for assault and battery, false imprisonment, intentional infliction of emotional distress and conspiracy under Georgia law. Judgment for plaintiffs.

Reasoning/Arguments Victims of human rights abuses in Bosnia-Herzegovina established that former police officer was responsible for torturing each of them physically and mentally, as required for officer's liability for torture under Alien Tort Claims Act

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(ATCA), where officer perpetrated, or was complicit in, severe beatings of each victim, which caused severe physical pain and suffering. Beatings of ethnic Muslims in Bosnia-Herzegovina carried out by former police officer and accomplices were perpetrated, instigated, and acquiesced in by persons acting in official capacity, as required for officer's liability for torture under Alien Tort Claims Act (ATCA); officer was soldier in unit tied to and supported by Bosnian Serb and Serbian governments, officer often carried out beatings with other soldiers, beatings were all committed in official or designated detention facilities, and officer could not have perpetrated abuses without permission or acquiescence of political and military hierarchy.


Crimes against humanity, to be actionable under Alien Tort Claims Act (ATCA), do not require any connection to international or internal armed conflict. 28 U.S.C.A. § 1350.


Arbitrary detention is violation of customary international law, and thus is actionable under Alien Tort Claims Act (ATCA). United States courts may ascertain contemporary norms of customary international law 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.' " Filartiga, 630 F.2d at 880 (quoting United States v. Smith, 18 U.S. (5 Wheat.) 153, 160-61, 5 L.Ed. 57 (1820)). Among various contemporary sources, the statutes of the ICTY and the International Criminal Tribunal for Rwanda ("ICTR") and recent opinions of these tribunals are particularly relevant. The United States has explicitly endorsed the approach of the ICTY Statute and the convening of the Tribunal. See Tachiona v. Mugabe, 169 F.Supp.2d. 259, 279 n. 78 (S.D.N.Y.2001) ("The Yugoslavia and Rwandan Tribunals, though creatures of U.N. Security Council resolutions, both have been legitimized, by way of implementing legislation, as playing an important role in the legal machinery of the United States for the Tribunals' specified purposes. As such, the Tribunals bear the imprimatur of both international consensus

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and domestic implementing legislation"). The prohibition of torture under customary international law is evidenced by, among other things, specific prohibitions on its use in numerous international human rights treaties; including the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ("Torture Convention"). In particular, the Eleventh Circuit and other courts have recognized cruel, inhuman, or degrading treatment as a violation of customary international law, at least to the extent that the conduct also would be prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the U.S. Constitution. Abebe-Jira, 72 F.3d at 847; Cabello, 157 F.Supp.2d at 1362; Paul, 901 F.Supp. at 330; Xuncax, 886 F.Supp. at 187-89. Acts of torture, inhuman treatment, and arbitrary detention of civilians committed in the course of hostilities violate the international law of war as codified in the Geneva Conventions and, hence, are a proper basis for liability under the ATCA. Kadic, 70 F.3d at 242-43. Such acts, whether committed in an international armed conflict or a non-international armed conflict, violate customary international law and are enforceable under the ATCA. As set forth below, the defendant has committed violations of customary international humanitarian law and is liable to plaintiffs for these violations. Crimes against humanity have been recognized as a violation of customary international law since the Nuremberg trials and therefore are actionable under the ATCA. Crimes against humanity were first codified in the Charter of the International Military Tribunal (IMT), which authorized the criminal trials at Nuremberg.


CASE National Coalition Government of Union of Burma v.

Unocal, 176 F.R.D. 329 C.D.Cal.,1997.

Judge Paez, appointed in 2000 by President Clinton Summary of Facts: The union claimed that the atrocious physical condition of the

companies' plants, and working conditions constituted torture. The company countered that the conditions were not caused

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by it, but by the Burma government over which it had no control. The company then brought a motion to dismiss based on lack of standing, failure to state a claim, the union's foreign capacity to bring suit, and because it was not the proper party.

Holdings (1) government-in-exile lacked standing to bring action; (2) labor organization had standing only to bring negligence claim on its own behalf; (3) labor organization lacked associational standing to bring its tort claims; (4) victims sufficiently alleged that oil company had been willful participant in joint action with controlling Burmese government to subject company to liability under ATCA; (5) act of state doctrine did not bar adjudication of plaintiffs' claims based on alleged acts of torture and forced labor; (6) controlling Burmese government and its state- owned energy company were not necessary parties; and (7) limitations periods were equitably tolled for victim's claims due to extraordinary circumstances outside his control.

Reasoning/Arguments Claimed Burmese government-in-exile lacked standing, in either its capacity as government or as pro-democracy organization, to bring action in United States court against American oil company which had entered into joint venture with controlling Burmese government to construct gas pipeline, where government-in- exile had not been formally recognized by United States, and United States had not indicated in its statement of interest filed with court that government-in- exile should have access to United States courts for purposes of the lawsuit. Foreign sovereign's expropriation of its national's property does not constitute jus cogens violation of law of nations and, therefore, is not cognizable under Alien Tort Claims Act (ATCA).

Int’l Law Norms Alien Tort Claims Act (ATCA) does not require that action arise under laws of United States, but only mandates violation of law of nations in order to create cause of action. Court applying Alien Tort Claims Act (ATCA) must determine whether there is applicable norm of international law, whether it is recognized by United States, what its status is, and whether it has been violated. Torture allegedly committed by controlling Burmese government in furtherance of gas pipeline project constituted jus cogens violation of law of nations and, therefore, was cognizable under Alien Tort Claims Act (ATCA). Jurisdiction under Alien Tort Claims Act (ATCA) may be premised on alleged violations of jus cogens, or peremptory, norm of international law. To constitute "state" under international law, entity need only

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have defined territory and permanent population under control of its own government, with capacity to engage in formal relations with other states. For purposes of act of state doctrine, official may violate international law under color of authority even when official is not acting within official mandate. Balance of factors weighed against application of act of state doctrine to bar district court's consideration of tort claims asserted by Burmese refugee and Burmese labor organization against American oil company which had entered into joint venture with controlling Burmese government to construct gas pipeline, based on government's alleged jus cogens violations of international law in using torture and forced labor to further pipeline project; there was high degree of international consensus denouncing jus cogens violations of international law, court's consideration of case would have limited implications for foreign relations of United States, and government's alleged jus cogens violations were not in public interest.

Customary Law Analysis Defenses Act of state doctrine may only be invoked to bar adjudication

of plaintiff's claims when nature of claims or defenses will require court to declare invalid foreign sovereign's official acts, in other words, when outcome of case turns upon effect of official action by foreign sovereign.

Other Info of Interest

CASE Nelson v. Saudia Arabia,

1989 WL 435302 (S.D. Fla. 1989) Judge Hon. Nesbitt, Lenore Carrero, Appointed by Pres. Ronald

Reagan Summary of Facts: Plaintiff stated a claim for jurisdiction upon diversity of

citizenship, 28 U.S.C. § 1331, and the Alien Tort Statute, 28 U.S.C. § 1350. However, court reasoned that the United States Supreme Court expressly held that "the FSIA provides the sole basis for obtaining jurisdiction over a foreign state in federal court." Argentine Republic v. Amerada Hess Shipping Corp., 109 S.Ct. 683, 690 (1989). Therefore, this court's subject-matter jurisdiction, if it exists at all, must be premised upon 28 U.S.C. § 1330(a), which provides that the district courts shall have original jurisdiction of any action against a foreign state if the foreign state is not entitled to immunity under the

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FSIA.

Judgment was reversed by Nelson v. Saudi Arabia, 923 F.2d 1528 (11th Cir. 1991) which did not address ATCA.


………………………..


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CASE Paul v. Avril,

901 F. Supp. 330 (S.D. Fla. 1994) Judge Hon. WILKIE D. FERGUSON, JR., Appointed by Pres:

Clinton Summary of Facts: Plaintiff citizens of Haiti sought damages under the Alien

Tort Statute, 28 U.S.C.S. § 1350, upon the default of defendant, former ruler of the country, for torts, including torture and false imprisonment, committed during the ruler's reign as head of the country's government. The court awarded the citizens of foreign country substantial damages against the former ruler of the country, holding that compensatory and punitive damages were recoverable for violations of international law. The court held that the ruler was responsible for the torture and false imprisonment of the citizens resulting in extreme suffering and permanent injuries.

Holdings

Reasoning/Arguments The Court found that punitive damages are appropriate in

this case as the acts committed by the defendant were malicious, wanton, and oppressive. An award of punitive damages must reflect the egregiousness of the defendant's conduct, the central role he played in the abuses, and the international condemnation with which these abuses are viewed. Filartiga, 577 F. Supp. at 866.


Both compensatory and punitive damages are recoverable for violations of international law. An award of punitive damages must reflect the egregiousness of the defendant's conduct, the central role he played in the abuses, and the international condemnation with which these abuses are viewed.


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CASE Presbyterian Church of Sudan v. Talisman Energy, Inc.

244 F.Supp.2d 289 S.D.N.Y.,2003. March 19, 2003

Judge SCHWARTZ, District Judge, Appointed by Pres. Clinton

Summary of Facts: Current and former residents of the Republic of the Sudan brought class action under Alien Tort Claims Act (ATCA), alleging that Canadian energy company collaborated with Sudanese government in policy of ethnically cleansing civilian populations to facilitate oil exploration activities. Energy company moved to dismiss.

Holdings (1) Court had subject matter jurisdiction; (2) complaint sufficiently alleged that company aided and abetted or conspired with Sudan to commit violations of the law of nations; (3) complaint sufficiently alleged acts of torture, enslavement, war crimes, and genocide; (4) government's actions could be imputed to company; and (5) company was subject to personal jurisdiction in New York.Motion denied.

Reasoning/Arguments District Court had subject matter jurisdiction, under Alien Tort Claims Act (ATCA), in action by current and former residents of Sudan alleging that energy company collaborated with Sudanese government in ethnically cleansing civilian populations to facilitate oil exploration activities; substantial international and United States precedent indicated that corporations could be held liable under international law, at least for gross human rights violations, and specific intent to commit a criminal action could be imputed to corporation. 28 U.S.C.A. § 1350. In action under Alien Tort Claims Act (ATCA) alleging that energy company collaborated with Sudanese government in ethnically cleansing civilian populations to facilitate oil exploration activities, complaint which alleged that company worked with Sudan to carry out acts of ethnic cleansing, encouraged Sudan to do so, and provided material support knowing that it would be used in carrying out the unlawful acts, sufficiently alleged that company aided and abetted or conspired with Sudan to commit violations of the law of nations. 28 U.S.C.A. § 1350; Fed.Rules Civ.Proc.Rule 9(b), 28 U.S.C.A.

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In action under Alien Tort Claims Act (ATCA), alleging that energy company collaborated with Sudanese government in ethnically cleansing civilian populations to facilitate oil exploration activities, complaint, which alleged that military bombing raids, rapes, forced displacement, and extrajudicial killings caused severe pain and suffering and were committed for reasons based on discrimination and with the consent or acquiescence of a public official or other person acting in an official capacity, sufficiently alleged torture. 28 U.S.C.A. § 1350. Canadian energy company was subject to personal jurisdiction in New York, for purposes of action under Alien Tort Claims Act (ATCA) alleging that company collaborated with Sudanese government in ethnically cleansing civilian populations to facilitate oil exploration activities; company was listed on New York Stock Exchange (NYSE), company's wholly owned subsidiary served as agent of company and conducted significant operations in New York, and there were a number of links between company and subsidiary. 28 U.S.C.A. § 1350; Fed.Rules Civ.Proc.Rule 4(k)(1)(A), 28 U.S.C.A.; N.Y.McKinney's CPLR 301. In action under Alien Tort Claims Act (ATCA), alleging that Canadian energy company collaborated with Sudanese government in ethnically cleansing civilian populations to facilitate oil exploration activities, dismissal on basis of forum non conveniens was inappropriate even if Canada were an adequate alternative forum; choice of forum by plaintiffs who were U.S. residents was entitled to deference, U.S. had strong interest in vindicating international human rights, and company's inconvenience was substantially outweighed by inconvenience to plaintiffs if forced to litigate in Canada. 28 U.S.C.A. § 1350. An examination of the particular jurisprudence of the Alien Tort Claims Act reveals that courts, including the Second Circuit, have almost unanimously permitted actions premised on a theory of aiding and abetting and conspiracy. This line of cases, and not the more general analysis provided by Talisman, rules the day under the maxim of lex specialis derogat lex generalis. U.S. courts have consistently permitted ATCA suits to proceed based on theories of conspiracy and aiding and abetting. Courts must look to international law to determine the relevant substantive law. An examination of international law reveals that the concepts of conspiracy and aiding and

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abetting are commonplace with respect to the types of allegations contained in the Amended Complaint, such as genocide and war crimes.


Perhaps the most widely-quoted enunciation of the sources of international law is found in the Statute of the International Court of Justice ("ICJ"). According to the Statute, the sources are as follows: a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; b. international custom, as evidence of a general practice accepted as law; c. the general principles of law recognized by civilized nations; d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. ICJ STAT. art. 38(1). [FN14] The Second Circuit has cited Article 38(1) as an authoritative reflection of the sources of international law. See Filartiga v. Pena-Irala, 630 F.2d 876, 881 n. 8 (2d Cir.1980). The Supreme Court's articulation of the sources of international law is similar. See, e.g., The Paquete Habana, 175 U.S. 677, 700, 20 S.Ct. 290, 44 L.Ed. 320 (1900); United States v. Smith, 18 U.S. (5 Wheat.) 153, 160-61, 5 L.Ed. 57 (1820). James Crawford and Christopher Greenwood consult a variety of international sources to conclude that there is no basis in existing international law for the liability of corporations. Nonetheless, a considerable body of United States and international precedent indicates that corporations may be liable for violations of international law, particularly when their actions constitute jus cogens violations. The Court is obliged to follow international law as interpreted by the Supreme Court and Second Circuit. The Court must reject Talisman's claim that it is legally incapable of violating the law of nations. A further examination of international legal precedent similarly reveals that Talisman's position is "anachronistic." Declaration of Professor Ralph G. Steinhardt, at ¶ 8, appended to Declaration of Stephen A. Whinston. A review of international precedent and practice reveals that corporate liability, at least for jus cogens violations, is

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contemplated under international law. A private corporation is a juridical person and has no per se immunity under U.S. domestic or international law. See Jordan J. Paust, Human Rights Responsibilities of Private Corporations, 35 VAND. J. TRANSNAT'L L. 801, 803 (2002). A corporation may be imputed with having the requisite specific intent to commit a criminal action. Given that private individuals are liable for violations of international law in certain circumstances, there is no logical reason why corporations should not be held liable, at least in cases of jus cogens violations



A factor militating against dismissal on forum non conveniens grounds is the strong United States interest in vindicating international human rights violations. In this case, plaintiffs seek redress for jus cogens violations of international law. As noted above, the allegations include charges of genocide, war crimes, torture, and enslavement. These acts are universally condemned, and the United States has a strong interest in seeing violations of international law vindicated. See, e.g., Testa v. Katt, 330 U.S. 386, 390 n. 4, 67 S.Ct. 810, 91 L.Ed. 967 (1947). Court cannot dismiss due to comity with Sudan. Normally, comity entails a domestic court honoring a foreign court's judgment or dismissing a case in favor of a pending proceeding. See, e.g., Cunard S.S. Co. v. Salen Reefer Servs. AB, 773 F.2d 452 (2d Cir.1985) (affirming the grant of comity to a Swedish court decision staying creditor actions); Allstate Life Ins. Co. v. Linter Group, Ltd. 994 F.2d 996 (2d. Cir.1993) (affirming dismissal in favor of a pending proceeding in Australia). Talisman, however, asks the court to grant comity with regard to Sudan's allegedly genocidal acts. Such acts are fundamentally different than a foreign court's determination in, for example, a bankruptcy matter. Moreover, granting comity to allegedly genocidal acts violates the strong United States interest in addressing jus cogens violations through the ATCA. Adjudication of this Action Will not Hinder U.S. Foreign Policy: Talisman's other basis for dismissing this action on act of state grounds is that adjudication of this case could

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embarrass or hinder the foreign relations of the United States. For support, it cites two State Department daily press briefings and a newspaper article. Each of these sources, however, states nothing more than that the United States is pursuing efforts to broker peace within Sudan and has engaged in dialogues with that country about terrorism. Talisman states that having a court sit in judgment of Sudanese governmental policy "may jeopardize" United States diplomatic efforts. Talisman presents no factual or logical argument as to why the mere existence of certain U.S. diplomatic overtures towards Sudan should prevent this case from proceeding. Indeed, as the world's foremost superpower, the United States has complex diplomatic relationships with virtually every country. This fact, without more, does not militate in favor of dismissal. Nothing in Talisman's brief or exhibits supports its contention that adjudicating this case would have a detrimental effect on United States-Sudan relations.

CASE Rasul v. Bush

215 F.Supp.2d 55 D.D.C.,2002. July 30, 2002.

Judge KOLLAR-KOTELLY Appointed by Pres. Clinton

Summary of Facts: Aliens being detained by the United States government at the U.S. Naval Base at Guantanamo Bay, Cuba, petitioned for writ of habeas corpus, and in a second case family members of 12 Kuwaiti nationals also being held at Guantanamo Bay sought a preliminary injunction on detainees' behalf, alleging violations of due process, Alien Tort Claims Act (ATCA), and Administrative Procedure Act (APA). Government moved to dismiss both cases.

Holdings (1) Cases could be considered only as petitions for writs of habeas corpus, and (2) Aliens held by the United States outside the sovereign territory of the United States could not use the courts of the United States to pursue petitions for habeas relief. Dismissed.

Reasoning/Arguments In action by aliens detained by United States government at Guantanamo Bay, Cuba, Naval Base, court would consider case only as petition for writs of habeas corpus, even though action sought to invoke jurisdiction under, inter alia, Fifth, Sixth, Eighth, and Fourteenth Amendments, International Covenant on Civil and Political Rights (ICCPR), the American

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Declaration on the Rights and Duties of Man (ADRDM), and customary international law; action sought release of detainees, which could only be brought under habeas corpus provisions. U.S.C.A. Const.Amends. 5, 6, 8, 14; 28 U.S.C.A. §§ 2241, 2242. Even if action by aliens detained by United States government at Guantanamo Bay, Cuba, Naval Base, did not fall under exclusive province of habeas statutes, government did not waive its sovereign immunity, and therefore detainees' action on basis of Alien Tort Claims Act failed; such waiver was not provided by Administrative Procedure Act (APA), in that actions of government fell under exemption for military authority exercised in time of war or in occupied territory. 5 U.S.C.A. §§ 701(b)(1)(G), 702; 28 U.S.C.A. § 1350.




CASE Ralk v. Lincoln County, Ga. 81 F.Supp.2d 1372

S.D.Ga.,2000. Judge Hon. William T. Moore Jr., appointed in 1994 by President

Clinton Summary of Facts: Pretrial detainee brought action against county, jail

employees, and jail physician, alleging deliberate indifference to his serious medical needs, and alleging violations of the International Covenant on Civil and Political Rights (ICCPR).

Holdings (1) physician was not deliberately indifferent to detainee's serious medical needs, and (2) ICCPR was not self-executing treaty giving rise to private cause of action.

Reasoning/Arguments While there could be a claim under the ATCA for violations of the ICCPR, plaintiff has failed to make that claim in his amended complaint. Therefore the court need not address the ATCA.


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CASE Ramirez de Arellano v. Weinberger, 240 U.S. App. D.C. 363 (1984)

Judge Judge Wilkey, Appointed by Nixon

Summary of Facts: Appellants, United States citizens, sought review of a United States District Court for the District of Columbia dismissal of their complaint requesting declaratory and injunctive relief from the alleged occupation of their property in the Honduras by the United States Government as a military training facility. The district court held that the dispute was a non-justiciable political question. third count charges the defendants with violating the Law of Nations and is brought under the Alien Tort Claims Act, 28 U.S.C. § 1350

Holdings Dismissal of appellants' complaint as containing non-justiciable political questions reversed. Court held that on the basis of appellants' complaint and affidavits, adjudication of appellants' complaint would necessitate interpretations of the federal Constitution and federal statutes and nothing in the complaint revealed anything beyond the capacity of the judiciary.

Reasoning/Arguments Because we hold that the United States plaintiffs have a protected property interest for the purposes of the claims asserted here and that they have standing to sue, we do not reach the question whether the alien Honduran corporations also have constitutional rights to judicial relief for the violations alleged here. Neither do we find it necessary now to resolve the issue whether the Honduran corporations may state a valid alternate claim under the Alien Tort Claims Act, 28 U.S.C. § 1350 (1982); see Verified Complaint for Declaratory and Injunctive Relief, Count III, A. at 5.

Int’l Law Norms Customary Law Analysis Defenses Other Info of Interest CASE Estate of Rodriquez v. Drummond Co., Inc.

256 F.Supp.2d 1250 N.D.Ala.,2003. April 14, 2003.

Judge Hon. Karen O. Bowdre

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Appointed by Pres. Bush (in 2002). Summary of Facts: Relatives and heirs of murdered Columbian trade union

leaders and trade union brought suit against Alabama mining corporation, its wholly owned subsidiary, and its executive officer, seeking damages and injunctive relief under Alien Tort Claims Act, Torture Victim Protection Act, and state law, alleging defendants were jointly and severally liable for murders committed by Columbian paramilitary units.

Holdings (1) court did not have jurisdiction over unnamed plaintiffs who did not seek leave to proceed anonymously before using pseudonyms; (2) trade union lacked standing under either Alabama law or Columbian law to sue for wrongful death of "aiding and abetting"; (3) genocide exception to state action requirement of Alien Tort Claims Act (ATCA) was not applicable; (4) trade union sufficiently alleged that mining company acted in conjunction with Columbian paramilitary units to violate laws of war by paying units to murder trade union leaders to state claim against company under ATCA; (5) on issue of first impression, denial of fundamental rights to associate and organize may be actionable tort under ATCA; (6) trade union adequately alleged state action to state claims under ATCA; (7) corporations were "individuals" subject to suit under TVPA; and (8) union did not have standing to sue for wrongful death of union leaders under TVPA. Motions granted in part and denied in part.

Reasoning/Arguments The Eleventh Circuit has recognized that the Alien Tort Claims Act "establishes a federal forum where courts may fashion domestic common law remedies to give effect to violations of customary international law." Abebe-Jira v. Negewo, 72 F.3d 844, 848 (11th Cir.1996). Thus, the ATCA "creates both subject matter jurisdiction and a private right of action." Estate of Winston Cabello v. Fernandez-Larios, 157 F.Supp.2d 1345 (S.D.Fla.2001) (citing Abebe-Jira, 72 F.3d at 848). Like the court in Islamic Salvation Front, this court is uncomfortable about permitting a trade union to sue under the ATCA and TVPA, particularly because neither statute addresses this issue and the legislative history does not indicate Congress' intent. Indeed, the court questions whether allowing the union to proceed will stretch the outer reaches of

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the ATCA. However, the court finds that SINTRAMIENERGETICA has alleged a cognizable injury, sufficient to have direct standing under ordinary circumstances and to survive a motion to dismiss


In United States v. Smith, 18 U.S. (5 Wheat.) 153, 160-61, 5 L.Ed. 57 (1820), the Supreme Court counseled that the law of nations "may be ascertained by consulting the works of jurists, writing professedly on public law; or by the general usage and practice of nations; or by judicial decisions recognising and enforcing that law." The general rule is that international law only binds state actors. However, courts interpreting the ATCA have found that certain forms of conduct--piracy, the slave trade, slavery and forced labor, aircraft hijacking, genocide, and war crimes--violate the law of nations "whether undertaken by those acting under the auspices of a state or only as private individuals." Kadic, 70 F.3d at 239.


Although this court recognizes that the United States has not ratified ILO Conventions 87 and 98, the ratification of these conventions is not necessary to make the rights to associate and organize norms of customary international law. As stated above, norms of international law are established by general state practice and the understanding that the practice is required by law. Restatement (Third) of the Foreign Relations Law of the United States, § 102 (1987). In addition, treaties and judicial decisions by international tribunals can embody customary international law. See Ford v. Jose Guillermo Garcia, 289 F.3d 1283, 1293 (11th Cir.2002) (using International Claims Tribunal for the Former Yugoslavia and recent decision by International Claims Tribunal for Former Yugoslavia as "the most recent indicia of customary international law"); Estate of Winston Cabello, 157 F.Supp.2d at 1359 (finding that treaties can constitute customary international law). Article 22 of the ICCPR clearly states that the rights to associate and organize are fundamental rights. The United States and Colombia have ratified the ICCPR. Many international laws, such as the ICCPR, are not self-executing, United States v. Duarte-Acero, 208 F.3d 1282, 1284 n. 8 (11th Cir.2000) (citing 138 Cong. Rec. S4781, S4783 (daily ed. Apr. 2, 1992)), and thus require implementing legislation, such as the ATCA, for federal courts to enforce these laws

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and the rights within them. After analyzing "international conventions, international customs, treatises, and judicial decisions rendered in this and other countries" to ascertain whether the rights to associate and organize are part of customary international law, this court finds, at this preliminary stage in the proceedings, that the rights to associate and organize are generally recognized as principles of international law sufficient to defeat defendants' motion to dismiss.


Because the union alleges that some of the paramilitaries that murdered the union leaders were dressed in Colombian military uniforms and were members of the Colombian military, the court finds that sufficient allegations of state action are present through the direct actions of those paramilitaries who were also members of the Colombian military at this time. The court concludes that because corporations can be sued under the ATCA and Congress did not explicitly exclude corporations from liability under the TVPA, private corporations are subject to liability under the TVPA. Thus, because Drummond Co., Inc. and Drummond Ltd. are "individuals" under the TVPA, the union can assert TVPA claims against these entities. The court previously found that the union adequately alleged direct state action and a concomitant agency relationship between defendants, the paramilitaries, and the Colombian military to satisfy the state action requirement under the ATCA. See supra at 23. This analysis is applicable to the state action requirement under the TVPA.

CASE Robert v. Bell Helicopter Textron, Inc.

Not Reported in F.Supp.2d N.D.Tex.,2002. May 31, 2002.

Judge Hon. Sam A. Lindsay Appointed by Pres. Clinton

Summary of Facts: A products liability and negligence action arising out of a Bell Model 47 helicopter crash in Ontario, Canada on August

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13, 1998. This case was originally filed in the Galveston Division of the United States District Court for the Southern District of Texas. Bell subsequently filed a motion to dismiss for forum non conveniens, contending that the case should proceed in Canada.

Holdings After having reviewed the magistrate's report and the applicable law, the court concludes the magistrate judge is correct in his finding that the ATCA does not preclude the court from dismissing this case under the doctrine of forum non conveniens. Similarly, the court concludes that the magistrate judge correctly stated and applied the law of forum non conveniens to the facts of this case. Accordingly, the court overrules Plaintiffs' objections concerning the magistrate judge's application of the forum non conveniens factors, and overrules Plaintiffs' objections concerning the ATCA.



CASE Roe v. Unocal Corp. 70 F.Supp.2d 1073

C.D.Cal.,1999. Judge Richard A. Paez, appointed in 2000 by President Clinton Summary of Facts: Plaintiff joined the Burmese military and alleged that the

battalion to which he was assigned provided security for defendant corporation's pipelines. Plaintiff was ordered by his commanding officer to dig a drainage ditch to divert water from the pipeline. When plaintiff was not paid for his work, he left the army and fled to Thailand. Plaintiff subsequently brought suit against defendant, alleging, among other things, civil conspiracy, joint venture liability, implied partnership liability, and violations of the Alien Tort Claims Act.

Holdings Motion to dismiss is granted Reasoning/Arguments The act of state doctrine applied to the military order given to

plaintiff and thus barred plaintiff's claims. Under the act of state doctrine, a United States court could not consider a plaintiff's claims where either the claims or the defenses asserted would require the court to determine that a foreign sovereign's official acts, performed in its own territory, were

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invalid. The court agreed with defendant that by adjudicating plaintiff's claims of forced labor, the court would necessarily pass judgment on the validity of a foreign government's official military acts.

Int’l Law Norms Act of state doctrine may only be invoked to bar adjudication of plaintiff's claims when nature of claims or defenses will require court to declare invalid foreign sovereign's official acts, in other words, when outcome of case turns upon effect of official action by foreign sovereign. Where facts presented are not sufficient to demonstrate that conduct in question was public act of those with authority to exercise sovereign powers, court should not presume that conduct at issue was official act of foreign sovereign for purposes of act of state doctrine.

Customary Law Analysis Defenses Act of State doctrine Other Info of Interest CASE Rosner v. U.S.

231 F.Supp.2d 1202 S.D.Fla.,2002. Aug. 28, 2002.

Judge Hon. Patricia A. Seitz Appointed by Pres. Clinton

Summary of Facts: Hungarian Jews, and their descendants, sued government, claiming that government wrongfully refused to return property expropriated by pro-Nazi Hungarian government during World War II and subsequently seized by United States Army. Government moved to dismiss.

Holdings (1) six year statute of limitations on claims against government was not tolled by continuing violation doctrine; (2) statute was equitably tolled; (3) Alien Tort Claims Act (ATCA) did not provide basis for suit; (4) Little Tucker Act did not apply to claims; (5) suit could be maintained under Administrative Procedure Act (APA); (6) suit could not be brought under Takings Clause; (7) claim of implied-in-fact bailment was stated; and on motion for reconsideration (8) there was consideration for implied-in-fact bailment contract; and (9) discovery could proceed on United States' claim that actions were conducted under military authority and consequently exempt from suit under APA. Motion granted in part, denied in part.

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Reasoning/Arguments Alien Tort Claims Act (ATCA), allowing aliens to bring civil

actions when tort is committed in violation of law of nations or United States treaty, is jurisdictional statute only and does not itself waive sovereign immunity. The ATCA, however, is a jurisdictional statute only and does not itself waive sovereign immunity. [FN10] Goldstar v. United States, 967 F.2d 965, 968 (4th Cir.1992) ("the Alien Tort Statute has been interpreted as a jurisdictional statute only--it has not been held to imply any waiver of sovereign immunity") (citations omitted). Accordingly, the ATCA does not provide the necessary waiver of sovereign immunity.




CASE Saltany v. Reagan,

886 F.2d 438 (C.A.D.C. 1989) Judge Hon. BUCKLEY, D.H. GINSBURG, and SENTELLE

(PER CURIAM) Plaintiffs sought to hold the British defendants liable on the basis that the Prime Minister gave the United States permission to use British air bases in the air strike. Plaintiffs asserted claims under the Federal Tort Claims Act, 28 U.S.C. § 2671, et seq., the Foreign Claims Act, 10 U.S.C. § 2734, the Alien Tort Claims Act, 28 U.S.C. § 1350, the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961, et seq., and various constitutional and common law theories, including the "tort law of Libya."

Summary of Facts:

Upon motions, the district court dismissed plaintiffs' claims as to all defendants. See Saltany v. Reagan, 702 F. Supp. 319 (D.D.C. 1988). Plaintiffs appealed and defendants have moved this court for summary affirmance. By separate order this date, the court affirm the decision dismissing plaintiffs' case.

Holdings ………………….

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Reasoning/Arguments …………………….

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CASE Sarei v. Rio Tinto PLC.

221 F.Supp.2d 1116 C.D.Cal.,2002. July 9, 2002.

Judge Hon. Margaret M. Morrow Appointed by Pres. Clinton

Summary of Facts: Papua New Guinea (PNG) residents brought class action under the Alien Tort Claims Act against international mining group based on allegations that group's mining operations destroyed their island's environment, harmed the health of its people, and incited a ten-year civil war. Defendants moved to dismiss.

Holdings (1) plaintiffs were not required to exhaust national remedies before filing suit in the United States; (2) plaintiffs adequately alleged a violation of the law of war under Alien Tort Claims Act; (3) plaintiffs sufficiently plead that mining group was a state actor for purposes of Alien Tort Claims Act; (4) act of state doctrine barred adjudication of environmental tort and racial discrimination claims but did not bar claims asserting war crimes and crimes against humanity; (5) political question doctrine barred all of claims; and (6) court would refrain, on the basis of international comity, from exercising jurisdiction over environmental tort and racial discrimination claims but not from exercising jurisdiction over claims asserting war crimes and crimes against humanity. Motions granted.

Reasoning/Arguments Alien Tort Claims Act creates a cause of action for violations of specific, universal and obligatory international human rights standards which confer fundamental rights upon all people vis-a-vis their own governments. 28 U.S.C.A. § 1350. “The Ninth Circuit has stated that the ATCA both confers federal subject matter jurisdiction and creates an independent cause of action for violations of treaties or the law of nations. See In re Estate of Ferdinand Marcos, Human Rights Litigation ("Hilao II"), 25 F.3d 1467, 1475-76 (9th Cir.1994). See also Kadic, supra, 70 F.3d at 238; Filartiga, supra, 630 F.2d at 887; Alomang v. Freeport-McMoran, Inc., Civ. A. No. 96-2139, 1996 WL 601431, *4 (E.D.La. Oct.17, 1996) ("Freeport correctly points out that the Alien Tort Statute provides an independent basis of federal question jurisdiction to redress human rights violations").” Residents of Papua New Guinea (PNG) adequately alleged a

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violation of the law of war under Alien Tort Claims Act; residents alleged that PNG government, acting as agent for international mining group, implemented and maintained a medical blockade, tortured and murdered innocent civilians, bombed civilian targets, and engaged in wanton killing and acts of cruelty, burned homes and villages, raped island women, and pillaged the island. 28 U.S.C.A. § 1350. Residents of Papua New Guinea (PNG) adequately stated a claim under Alien Tort Claims Act against international mining group based upon war crimes allegedly committed by PNG government; residents alleged that PNG government acted as group's agent, that group "controlled" its actions, and that group was a "willful participant"/"conspirator" in them. Act of state doctrine precludes a United States court from adjudicating claims if doing so would require that the court invalidate a foreign sovereign's official acts within its own territory. Act of state doctrine barred adjudication of Papua New Guinea (PNG) residents' environmental tort and racial discrimination claims against international mining group arising from group's mining operations but did not bar claims asserting war crimes and crimes against humanity, which involved allegedly illegal acts committed by the PNG Defense Force during a civil uprising; PNG government's alleged involvement in the construction and operation of mine was public, governmental and official and a ruling in plaintiffs' favor on their environmental and racial discrimination claims would necessarily imply the invalidity of official acts of the PNG government, but PNG government's alleged acts of torture, pillage and illegitimate warfare were not official acts of state. International comity is a discretionary doctrine; it is not a rule of law, but one of practice, convenience and expediency. Court would refrain, on the basis of international comity, from exercising jurisdiction over Papua New Guinea (PNG) residents' environmental tort and racial discrimination claims against international mining group arising from group's mining operations but not from exercising jurisdiction over claims asserting war crimes and crimes against humanity, which involved allegedly illegal acts committed by the PNG Defense Force during a civil uprising; PNG government had a strong sovereignty interest in adjudicating claims of environmental

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harm involving its own territory and own people, and in resolving allegations regarding the conduct of its police and armed forces, there was a direct conflict between the Alien Tort Claims Act and a PNG statute which prohibited plaintiffs from filing the claims elsewhere than in PNG, but war crimes claims did not fall within the scope of PNG statute.


A claim under Alien Tort Claims Act may be based on the violation of a jus cogens norm such as racial discrimination. Because it is a creature of domestic law, the ATCA need not impose the same conditions on a plaintiff's right to sue as international law or the domestic law of other nations. Accordingly, the court finds that plaintiffs are not required to demonstrate that they have exhausted local remedies, or that doing so would be futile, in order to state a claim under the ATCA. Having reviewed the American Convention on Human Rights, the court agreed that it does not specifically address human rights deprivations caused by environmental degradation. The court also considered relevant the fact that the United States has refused to ratify the Convention for more than three decades. See Stanford v. Kentucky, 492 U.S. 361, 390, n. 10, 109 S.Ct. 2969, 106 L.Ed.2d 306 (1989) (noting that Article 4(5) of the American Convention on Human Rights has been signed, but not ratified, by the United States); Garza v. Lappin, 253 F.3d 918, 925 (7th Cir.2001) ( "More recently, the [Charter of the Organization of American States] has developed an American Convention on Human Rights, which creates an Inter- American Court of Human Rights. Under the American Convention, the Inter- American Court's decisions are potentially binding on member nations. The rub is this: although the United States has signed the American Convention, it has not ratified it, and so that document does not yet qualify as one of the 'treaties' of the United States that creates binding obligations" (emphasis added)). The first factor to be considered in determining whether the act of state doctrine bars judicial review is "the degree of international consensus regarding [a challenged] activity. The court next evaluated the implications for United States foreign relations if a decision is rendered on the environmental tort and racial discrimination claims in this case. The Supreme Court has stated that "where the impact on foreign relations of the international issues presented is small, the justification for

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application of the act of state doctrine is commensurately weak." Mr. Taft from State Department communicated concern regarding U.S. foreign relations and the court accepted that as valid with regard to the continuation of the case. The third factor was whether the government was still in existence: govt hadn’t changed. Two of the three Sabbatino factors support application of the act of state doctrine to bar continued adjudication of plaintiffs' environmental tort and racial discrimination claims in the United States. For that reason, and particularly because "[t]he 'touchstone' or 'crucial element' [in the Sabbatino analysis] is the potential for interference with our foreign relations" (see Liu, supra, 892 F.2d at 1432), the court grants defendants' motion to dismiss those claims based on the act of state doctrine. “Ruling on the merits of these allegations will inevitably require passing judgment on the pre-war and wartime conduct of the PNG government. It is this type of judgment that the Statement of Interest indicates may have serious implications for the future of the peace agreement that has been reached, and thus for the foreign policy objectives the executive branch has set. It is also the type of judgment that risks placing the court in the position of announcing a view that is contrary to that of a coordinate branch of government, with all the attendant embarrassment that would ensue. The situation is thus quintessentially one that calls for invocation of the political question doctrine as to each of plaintiffs' causes of action.”


Papua New Guinea (PNG) residents failed to demonstrate that international mining group's alleged environmental torts violated a specific, universal, and obligatory norm of international law, and therefore court lacked jurisdiction under Alien Tort Claims Act to adjudicate count of complaint concerning harm to the environment and health of residents allegedly caused by group's mining operations; however, residents adequately stated a claim for violation of the customary international law reflected in United Nations Convention on The Law of the Sea (UNCLOS) regarding pollution in Empress Augusta Bay and/or the Pacific Ocean. 28 U.S.C.A. § 1350. In evaluating plaintiffs' ATCA claims, the court must consider:

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(1) whether they identify a specific, universal, and obligatory norm of international law; (2) whether that norm is recognized by the United States; and (3) whether they adequately allege its violation. See Unocal II. Because the court cannot identify the parameters of the right created by the principle of sustainable development, it concluded that it cannot form the basis for a claim under the ATCA. See Hilao III, supra, 103 F.3d at 794; Hilao II, supra, 25 F.3d at 1475; Beanal, supra, 969 F.Supp. at 370 ("To be recognized as an international tort under § 1350, the alleged violation must be definable, obligatory (rather than hortatory), and universally condemned"). Although the United States has not ratified UNCLOS (treaty prohibiting pollution), it has signed the treaty. Moreover, the document has been ratified by 166 nations and thus appears to represent the law of nations. See United States v. State of Alaska, 503 U.S. 569, 588, n. 10, 112 S.Ct. 1606, 118 L.Ed.2d 222 (1992) ("The United States has not ratified [the United Nations Convention on the Law of the Sea], but has recognized that its baseline provisions reflect customary international law"); Mayaguezanos por la Salud y el Ambiente v. United States, 198 F.3d 297, 305, n. 14 (1st Cir.1999) ("Mayaguezanos refers to the 1982 United Nations Convention on the Law of the Sea (UNCLOS). The Convention has been signed by the President, but it has not yet been ratified by the Senate. Consequently, we refer to UNCLOS only to the extent that it incorporates customary international law, though we also note that the United States 'is obliged to refrain from acts that would defeat the object and purpose of the agreement,' " quoting RESTATEMENT, § 312(3)); R.M.S. Titanic, Inc. v. Haver, 171 F.3d 943, 965, n. 3 (4th Cir.1999) ("Within this economic zone, a nation may exercise exclusive control over economic matters involving fishing, the seabed, and the subsoil, but not over navigation. See United Nations Convention on the Law of the Sea, Dec. 10, 1982. Even though the United States has not yet ratified this treaty, it generally recognizes this 200-mile economic zone"); Mayaguezanos por la Salud y el Ambiente v. United States, 38 F.Supp.2d 168, 175, n. 3 (D.P.R.1999) ("The Senate has yet to ratify UNCLOS III. However, pending ratification or rejection by the Senate, 'the United States is bound to uphold the purpose and principles of the agreement to which the executive branch has tentatively made the United States a party.' ... Furthermore, there is a consensus among commentators that the provisions of

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UNCLOS III reflect customary international law, and are thus binding on all other nations, signatory or non-signatory."


While, generally, the statements of individual members of Congress or witnesses testifying before Congressional committees are not entitled to great weight in ascertaining legislative intent, on the point [regarding intent in enacting the TVPA) they are consistent with information contained in the committee reports and with other aspects of the legislative history. The court considers them further indicators that, in enacting the TVPA, Congress intended to ensure that the ATCA would remain intact to permit suits based on norms of international law that were in existence or that might come into existence in the future. See Brock v. Pierce County, 476 U.S. 253, 263, 106 S.Ct. 1834, 90 L.Ed.2d 248 (1986) ("[S]tatements by individual legislators should not be given controlling effect, but when they are consistent with the statutory language and other legislative history, they provide evidence of Congress' Intent"); United States v. Shaw, 936 F.2d 412, 416 (9th Cir.1991) (" 'Such statements by individual legislators should not be given controlling effect, but when they are consistent with the statutory language and other legislative history, they provide evidence of Congress' intent.' ... In this case, the sponsors' statements are consistent with everything else we can deduce from the legislative history, dictionary definitions, and the Sentencing Commission's interpretation. Indeed, we have seen no statements indicating any different interpretation of the term 'cocaine base,' " quoting Brock. Accordingly, it held that "[t]he scope of the Alien Tort Act remain [ed] undiminished by enactment of the Torture Victim Act," and that the color of law requirement did not apply to ATCA lawsuits outside the scope of the TVPA. Adopting a similar rationale, the court concludes that the inclusion of an exhaustion of remedies provision in the TVPA was not intended to impose a similar requirement upon ATCA claims that fall outside the scope of the TVPA statute.

CASE Sampson v. Federal Republic of Germany

250 F.3d 1145, C.A.7 (Ill.),2001 Judge Hon. Daniel A. Manion, appointed in 1986 by President

Reagan Summary of Facts: Former slave laborer in Nazi concentration camp brought

action against Germany and Conference on Jewish Material

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Claims Against Germany, Inc., for reparations from funds created for Holocaust survivors

Holdings (1) Germany did not waive its sovereign immunity with regard to its treatment of slave laborers, and (2) plaintiff did not have standing to bring suit against Claims Conference, because there existed no exception to the FSIA.

Reasoning/Arguments Under the FSIA, a foreign state is presumptively immune from the jurisdiction of United States courts; unless a specified exception applies, a federal court lacks subject-matter jurisdiction over a claim against a foreign state. No exception applies here.

Int’l Law Norms Although international law is "part of our law," it does not follow that federal statutes must be read to reflect the norms of international law. Our duty is to enforce the Constitution, laws and treaties of the United States, not to conform the law of the land to norms of customary international law.

Customary Law Analysis State is bound by jus cogens norms even if it does not consent to their application. Although jus cogens norms may address sovereign immunity in contexts where question is whether international law itself provides immunity, jus cogens norms do not require Congress or any government to create jurisdiction. Only as last resort should United States courts infer jurisdiction over foreign sovereigns on basis of customary international law.

Defenses Other Info of Interest CASE Sanchez-Espinoza v. Reagan, 248 U.S. App. D.C. 146 (D.C.

Cir. 1985) (This opinion was vacated and remanded by Weiberger v. Ramirez de Arellano, 471 U.S. 1113 (1985)

Judge WILKEY, Appointed by Nixon

Summary of Facts: Appellants, residents, nonresidents, and congressional members, filed a complaint alleging various causes of action arising from the United States' involvement in military operations in Nicaragua. The district court dismissed the complaint primarily on the basis it presented a nonjusticiable political question. Upon review, the court affirmed the dismissal. However, the court based its dismissal on other grounds.

Holdings The court affirmed an order that dismissed a complaint filed

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by appellants, residents, nonresidents, and congressional members. The court held that judicial discretionary relief was improper where the President and executive officers allegedly approved the military operations that the court was asked to terminate.

Reasoning/Arguments The court held that the Alien Tort Statute, 28 U.S.C.S. § 1350, did not extend to actions against appellee executive officers in their personal capacities because of the doctrine of sovereign immunity. The court determined that the withholding of judicial discretionary relief allowed under 5 U.S.C.S. § 702 of the Administrative Procedure Act, was proper where the President and executive officers allegedly approved the military operations that the court was asked to terminate.

Int’l Law Norms The Alien Tort Statute 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.

Customary Law Analysis Defenses Other Info of Interest CASE Siderman de Blake v. Republic of Argentina,

965 F.2d 699 (9th Cir. 1992) Judge Hon. Betty Binns Fletcher, Appointed by Pres. Jimmy

Carter Summary of Facts: Plaintiffs, husband and wife, sought review of a judgment

from the United States District Court for the Central District of California, which dismissed their action against defendant, the country of Argentina. Plaintiffs alleged that the Argentine military tortured plaintiff husband and expropriated plaintiffs' property. APPELATE CASE DOES NOT ADDRESS ATCA.


………………………..


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CASE Sinaltrainal v. Coca-Cola Co.

256 F.Supp.2d 1345 S.D.Fla.,2003. March 28, 2003.

Judge MARTINEZ, District Judge. Appointed by Pres.???

Summary of Facts: Survivors of Colombian soft drink bottling plant employee, killed by paramilitary unit, brought suit under Alien Tort Claims Act (ATCA) and Torture Victims' Protection Act (TVPA), against United States soft drink licensor and its Colombian subsidiary, together with Colombian bottler and its managers. Defendants moved to dismiss.

Holdings (1) no jurisdiction over licensor or its subsidiary under ATCA; (2) there is ATCA jurisdiction over bottler and managers; (3) no jurisdiction over licensor and subsidiary under TVPA; (4) there is jurisdiction over bottler and managers under TVPA; and (5) Racketeer Influenced and Corrupt Organizations Act (RICO) inapplicable. Complaint dismissed in part.

Reasoning/Arguments Court lacked jurisdiction, in Alien Tort Claims Act (ATCA) suit against soft drink licensor and its Colombian subsidiary, brought by survivors of worker murdered by paramilitary unit at soft drink bottling plant, when survivors claimed that licensor and subsidiary exercised day-to-day control over plant and were consequently liable for actions of branch manager, who allegedly cooperated in murder; under bottling agreement licensor and subsidiary only had beverage quality control over licensee. 28 U.S.C.A. § 1350. Federal district court had jurisdiction over owner of Colombian soft drink bottling company, and owner's son who ran company from Colombia, in Alien Tort Claims Act (ATCA) suit claiming liability for death of worker murdered by paramilitary forces, when it was alleged that owner and son's control over day- to-day operations was so comprehensive that they were responsible for plant manager's alleged collaboration in killing; factual issues essential to jurisdiction were better resolved as part of summary judgment motion, rather than on motion to dismiss for lack of jurisdiction. 28 U.S.C.A. § 1350

International Law The complaint must identify the specific international law that

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Norms Discussed the defendant allegedly violated. Kadic v. Karadzic, 70 F.3d 232, 238 (2d Cir.1995); Filartiga, 630 F.2d at 880. This is a higher standard of pleading than that traditionally required to survive a 12(b)(1) motion, and it applies only to the third element of an ATCA claim. See Kadic, 70 F.3d at 238. The notice pleading standard applies to the first two elements of the ATCA claim. The heightened standard requires that the complaint identify facts showing Defendants violated a specific international law. In the context of this case, Plaintiffs attempt to state an international law violation by alleging that the private individuals who shot Gil committed either a war crime or a tort under color of law that exceeded universally recognized standards of civilized conduct. See Kadic at 239-40, 245; Filartiga at 889; Forti v. Suarez-Mason, 672 F.Supp. 1531, 1546 (N.D.Cal.1987). To plead a war crime, Plaintiffs must allege facts sufficient to show that a private individual, who was a party to an armed conflict, committed a tort against civilians in the course of that conflict. Kadic at 243-244. A war crime committed by a private individual is actionable only if committed in the course of hostilities that are related to an ongoing war. Id. The complaint clearly alleges that the paramilitaries were the "hired guns" of Bebidas, Coca-Cola U.S.A., Coca-Cola Colombia, Kirby, and Kielland, who acted on behalf of the Defendants when they shot Gil, and that the paramilitaries acted to further Defendants' business interests, however, the allegations do not establish that Gil was murdered in the course of an ongoing war. The complaint, therefore, fails to allege a war crime sufficient to invoke subject matter jurisdiction. The failure to allege a war crime is not fatal to jurisdiction under the ATCA, however. See Kadic, 70 F.3d at 243 (summary execution not perpetrated in the course of a war crime violates international law if committed by state officials or private individuals acting under color of law.) According to the holding in Kadic, if the complaint alleges that the Defendants murdered Gil by acting together with the paramilitary unit who acted under color of law by acting in concert with Colombian officials or with significant aid from the Colombian government, then an international law violation is sufficiently stated for purposes of subject matter jurisdiction

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A symbiotic relationship is one of the four tests recognized by the U.S. Supreme Court as establishing action taken by a private individual under color of law. See Burton v. Wilmington Parking Auth., 365 U.S. 715, 723-24, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961) (a symbiotic relationship exists when the parties confer mutual benefits to each other such that their interdependence is crucial to each one's success). Thus, if proven, the allegation would establish that the paramilitary murdered Gil with the assistance of the Colombian government.

CASE Sinaltrainal, Estate of Gil v. Coca-Cola Co.

Not Reported in F.Supp.2d S.D.Fla.,2003. March 31, 2003

Judge MARTINEZ, J. Appointed by Pres. ?

Summary of Facts: Before the court upon Defendants' Joint Motion to Dismiss for Lack of Personal Jurisdiction and to Quash Service of Process (D.E.55) filed on March 5, 2002. The parties have sufficiently briefed the issues, and the Court heard argument on the matter. The Court denied Defendant's motion at this juncture and stayed this case pending completion of discovery of the jurisdictional issue and subsequent ruling on whether the Court possesses personal jurisdiction over Defendants.

Holdings Reasoning/Arguments International Law Norms Discussed



First, Defendants claim Plaintiffs failed to state necessary facts to sufficiently plead alter-ego status and therefore, failed to make the requisite showing to support a reasonable inference that this Court has personal jurisdiction over the non-resident Defendants. Second, Defendants claim service of process on the resident Defendants does not equate to service of process on the

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nonresident Defendants. Accordingly, Defendants seek dismissal as to the non resident Defendants for lack of personal jurisdiction and for failure to effectuate service of process. As to Defendants' second contention, there is sufficient legal authority to support Plaintiff's theory that service of process on a resident alter ego defendant is effective service on the non-resident Defendants. See, e.g. Leach Co. v. General Sani-Can Manufacturing Corp., 393 F.2d 183 (7th Cir.1968); Quarles v.. Fuqua Amusement Co., 179 F.2d. 1358 (10th Cir.1974); Lamb v. Volkswagenwerk Aktiengesellschaft, 104 F.R.D. 95 (S.D.Fl.1985). As such, if this Court finds the non-resident Defendants are alter egos of the resident Defendants, this Court may find service of process was properly effectuated on the non resident Dependants. Therefore, this issue is premature and the Court will only consider Defendants' first argument at this juncture.

CASE Tachiona v. Mugabe

169 F.Supp.2d 259 S.D.N.Y.,2001. Oct. 30, 2001.

Judge MARRERO, District Judge. Appointed by Pres. Clinton

Summary of Facts: Members and supporters of opposition political group, alleging they were victims of torture and terror, brought class action, for themselves and on behalf of deceased victims, against president and foreign minister of Zimbabwe, and their political party, invoking Alien Tort Claims Act (ATCA), Torture Victim Protection Act (TVPA), and norms of international human rights law. Defendants failed to answer, and plaintiffs moved for default judgment. United States Department of State submitted Suggestion of Immunity on behalf of defendants.

Holdings (1) State Department's role in determinations of head-of-state immunity was not affected by passage of Foreign Sovereign Immunities Act (FSIA); (2) president and foreign minister were heads-of-state; (3) president and foreign minister were entitled to immunity under Convention on Privileges and Immunities of United Nations; (4) president and foreign minister were not immune from service of process as agents of their political party; and (5) party acted under color of law.

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Motion granted in part and denied in part.

Reasoning/Arguments Provision of Convention on Privileges and Immunities of United Nations granting immunities enjoyed by diplomatic envoys to temporary representatives of Member States to U.N. conferences provided comprehensive immunity from legal process to president and foreign minister of Zimbabwe, who participated in U.N. conference in United States, in class action by alleged victims of torture and terror under Alien Tort Claims Act and Torture Victim Protection Act (TVPA), even though their alleged conduct giving rise to action did not occur in their capacities as temporary representatives. 28 U.S.C.A. § 1350; Torture Victim Protection Act of 1991, § 1 et seq., 28 U.S.C.A. § 1350 note; Convention on Privileges and Immunities of the United Nations, Art. 4, § 11, 21 U.S.T. 1418. Doctrine of personal inviolability did not preclude service of process on president and foreign minister of Zimbabwe, foreign officials entitled to head- of-state and diplomatic immunity, as agents for their political party, in class action by alleged victims of torture and terror under Alien Tort Claims Act and Torture Victim Protection Act (TVPA); service was not effected to assert personal jurisdiction over officials, service on officials did not subject them to court's compulsory powers, and Foreign Sovereign Immunities Act (FSIA) did not conclusively eliminate service of process on individual officials who otherwise enjoyed immunity. 28 U.S.C.A. §§ 1350, 1602 et seq.; Torture Victim Protection Act of 1991, § 1 et seq., 28 U.S.C.A. § 1350 note. Individual liability may be imposed on organized non-state actors under Alien Tort Claims Act and Torture Victim Protection Act (TVPA): (1) when individuals' deeds are done in concert with governmental officials or with their significant assistance, which thus may be deemed to constitute state action or conduct taken under color of state law, and (2) when individuals commit acts independently of any state authority or direction, especially encompassing more egregious conduct, such as genocide, war crimes, or other crimes against humanity. 28 U.S.C.A. § 1350; Torture Victim Protection Act of 1991, § 1 et seq., 28 U.S.C.A. § 1350 note. Allegations and related evidence demonstrating that officials of Zimbabwe African National Union-Patriotic Front (ZANU-

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PF), acting under command and control of president of Zimbabwe and head of air force, and employing government officials and other public resources, such as transportation, communications, and coordination, inflicted campaign of murder, torture, terrorism, rape, beatings, and destruction of property against members and supporters of opposition political party, were sufficient to support "color of law" and state action requirements for alleged victims' class action against ZANU-PF under Alien Tort Claims Act 28 U.S.C.A. § 1350. Inasmuch as the Court's honoring of the Executive Branch's Suggestion of Immunity is fully dispositive of the matter as it pertains to the Court's lack of personal jurisdiction over Mugabe and Mudenge, it is unnecessary for the Court to consider the merits of the substantive basis of Plaintiffs' claims of subject matter jurisdiction under the ATCA and the TVPA. It suffices to say, as the Aristide court concluded, that the TVPA does not negate head-of-state immunity, and there are no defensible grounds for a different outcome as it relates to an action invoking the ATCA.


As a by-product of greater awareness, a deeper wedge has been driven in the old sovereign equation, in recognition that it is not the “state” as a collective abstraction, but rather live persons, with or without the badge of the state, who commit atrocities in violation of common norms, and that high- ranking government officials, even heads-of-state themselves, may be among the persons prone from time to time to indulge in lawlessness. To address these concerns and changing circumstances some adjustments in the practices governing relations among states became necessary. To these ends, a considerable body of new rules emerged, both domestically and internationally, in large measure during the years soon after the enactment of the FSIA. As a consequence, with greater incidence, foreign state officials are accused of wrongful conduct arising not just from private commercial ventures, but from alleged criminal activity and abuses of human rights in violation of customary international law. In fact, the broad body of substantive law and behavior constituting recognized violations of international norms, which correspondingly has given rise to claims such as the one at bar for enforcement of those rights,

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has expanded significantly in more recent years.



CASE Telestat De Panama, S.A. v. U.S. Dept. of Defense,

(UNPUBLISHED DIPOSITION)

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CASE Tachiona ex rel. Tachiona v. Mugabe

186 F.Supp.2d 383 S.D.N.Y.,2002. Feb. 14, 2002.

Judge MARRERO, District Judge, Appointed by Pres. Clinton

Summary of Facts: Members and supporters of opposition political group, alleging that they were victims of torture and terror, brought class action, for themselves and on behalf of deceased victims, against president and foreign minister of Zimbabwe, and their political party, invoking Alien Tort Claims Act (ATCA), Torture Victim Protection Act (TVPA), and norms of international human rights law. Defendants failed to answer, but United States submitted Suggestion of Immunity on their behalf. The United States District Court for the Southern District of New York, 169 F.Supp.2d 259, held that individual defendants were immune but their political party was not. Government moved for reconsideration and intervention.

Holdings 1) reconsideration was not warranted, but (2) government was entitled to intervene for purpose of appealing judgment. Motion granted in part and denied in part.

Reasoning/Arguments Precise contours of protection from assertions of foreign territorial jurisdiction over heads of state are not specifically spelled out in any treaty or universally accepted instrument reflecting customary international law. United States was entitled to intervene as of right in class action suit against foreign political party for alleged human rights violations, for limited purpose of preserving right to appeal judgment; motion was timely, as judgment had not yet been entered, and government's otherwise unrepresented interests in fundamental issues of international comity and conduct of foreign affairs were sufficiently strong to warrant intervention. Fed.Rules Civ.Proc.Rule 24(a), 28 U.S.C.A.




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CASE Tachiona v. Mugabe

234 F.Supp.2d 401 S.D.N.Y.,2002. Dec. 11, 2002.

Judge Hon. Victor Marrero, Appointed by Pres. Clinton

Summary of Facts: Supporters and members of opposition party brought action against ruling political party of Zimbabwe, alleging that defendant, through its officers, planned and executed a campaign of violence designed to intimidate and suppress political opposition in violation of Alien Tort Claims Act (ATCA), the Torture Victim Protection Act (TVPA), and fundamental norms of human rights law. Following entry of default judgment, 169 F.Supp.2d 259, and denial of reconsideration, 186 F.Supp.2d 383. The District Court, 216 F.Supp.2d 262, determined damages relating to TVPA claims, but reserved judgment as to ATCA claims.

Holdings (1) Zimbabwe law supported issuance of damages award for torture and extrajudicial killings; (2) denial of plaintiffs' political rights were sufficiently systematic and gross to warrant finding violation of international law and corresponding liability; (3) plaintiffs experienced cruel, inhuman, or degrading treatment prohibited under principles of international law; (4) systematic race discrimination and racially-motivated violence would violate international standards, as would support damages award; (5) seizure of property without compensation would not violate norms of international conduct; and (6) plaintiffs would be entitled under Zimbabwe law to recover compensatory damages for seizure of property. Ordered accordingly.

Reasoning/Arguments In Adra v. Clift, [FN32] for example, the court applied the alternative formulation where the tort, that of abducting a child from a parent entitled to custody, was defined by municipal law, and the violation of the law of nations consisted of the misuse of a passport as the means to carry out the wrongful conduct. A variation of this approach was followed in Trajano v. Marcos, where the Ninth Circuit endorsed the district court's application of the Tel-Oren alternative as modified to rely upon the domestic law of the foreign jurisdiction, rather than that of the United States, to provide the cause of action. But in Doe v. Unocal Corp. the Ninth Circuit determined the liability

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of a private third-party in an ACTA claim by reference to international law, rather than the municipal law of the foreign state, or federal or forum state law, where the alleged violations implicate only peremptory norms (jus cogens ). In Hilao v. Marcos, another panel of the same court held that ATCA creates a cause of action for violations of universal human rights standards and applied federal law to decide a survival of claim issue without any choice of law analysis or review of municipal law. A drawback to a choice of law approach mandating strict adherence to municipal law in redressing international law violations in ATCA cases is the practical and jurisprudential complexities that inhere in discerning, construing and enforcing substantive rules of decision formulated by foreign courts, legislatives or administrative bodies. The intricacies and challenges are compounded in ATCA adjudications by the integral links and interplay that exist between the application municipal and international law for both jurisdictional and decisional purposes. Though the Federal Rules of Civil procedures provide guidance for federal courts in applying foreign law, this authority does not mitigate the conceptual and pragmatic obstacles always associated with the task.


In synthesis, the foregoing case law reflects the emergence of a set of decisional rules federal courts have crafted to give scope and content to the cause of action the ATCA creates as it relates to international human rights law. Under these principles, as regards to misconduct that violates universally recognized norms of international law, the cases suggest several standards to guide ATCA choice of law determinations: (1) the local law of the state where the wrongs and injuries occurred and the parties reside may be relevant and may apply to resolve a particular issue insofar as it is substantively consistent with federal common law principles and international law and provides a remedy compatible with the purposes of the ATCA and pertinent international norms; (2) in the event the local law of the foreign state of the parties' residence and underlying events conflicts with federal or international law, or does not provide an appropriate remedy, or is otherwise inadequate to redress the international law violations in question, a remedy may be fashioned from analogous principles derived from federal law and the forum state, or from international law embodied in federal common law;

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(3) should the application of law from federal and forum state principles as to some aspect of the claim defeat recovery, an analogous rule drawn from the municipal law of the foreign jurisdiction may be applied to the extent it supplies a basis for a decisional rule that may permit relief; (4) if some part of the claim cannot be sustained as a violation of international law, a remedy might be found by application of the foreign state's municipal law under the federal court's pendent jurisdiction if so invoked.


Norms and practices contained in international human rights instruments acquire the status of customary law of nations only insofar as they ripen over time into settled rules widely recognized and enforced by international agreements, by judicial decisions, by the consistent usage and practice of states and by the general assent of civilized nations Because customary principles and practices of sovereign states, contained in international human rights instruments, do not derive and acquire the status of law from the authoritative pronouncements of any particular deliberative body, they generally do not create specific causes of action or a self-executing right to sue entitling victims to institute litigation to vindicate violations of international norms. As sources of guidance for what qualifies as internationally recognized norms relating to the political rights invoked by plaintiffs on Alien Tort Claims Act (ATCA) claims, the district court may draw from general principles derived from international agreements, declarations and pronouncements on the particular subject, as well as from the general principles common to the world community's major legal systems. Supporters and members of party opposing Zimbabwe's ruling party experienced cruel, inhuman, or degrading treatment prohibited under principles of international law, as would support award of damages under Alien Tort Claims Act (ATCA) in action against ruling party; for example, one victim was tortured and died from assault, and then was dragged through the streets for neighbors and kin to view, another watched as her elderly mother was stoned to death As sources of guidance for what qualifies as internationally recognized norms relating to the political rights Plaintiffs invoke, the Court may draw from general principles derived from international agreements, declarations and pronouncements on the particular subject, as well as from the

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general principles common to the world community's major legal systems.] In this connection, the Court considers relevant doctrine and expressions reflected in the Restatement of Foreign Relations and federal law principles, provisions of the Universal Declaration and the Civil and Political Rights Covenant, and interpretations and applications of these instruments by authoritative international and domestic bodies.


CASE Tel-Oren v. Libyan Arab Republic, 233 U.S. App. D.C.

384 (D.C. Cir. 1984)

Judge PER CURIAM

Summary of Facts: Plaintiffs in this action, mostly Israeli citizens, are survivors and representatives of persons murdered in an armed attack on a civilian bus in Israel in March 1978. They filed suit for compensatory and punitive damages in the District Court, naming as defendants the Libyan Arab Republic, the Palestine Liberation Organization, the Palestine Information Office, the National Association of Arab Americans, and the Palestine Congress of North America. Plaintiffs alleged that defendants were responsible for multiple tortious acts in violation of the law of nations, treaties of the United States, and criminal laws of the United States, as well as the common law. Jurisdiction was claimed under four separate statutes: 28 U.S.C. § 1331 (federal question jurisdiction); 28 U.S.C. § 1332 (diversity jurisdiction); 28 U.S.C. § 1350 (providing jurisdiction over actions by an alien alleging a tort committed in violation of the law of nations or a treaty of the United States); and the Foreign Sovereign Immunites Act of 1976, 28 U.S.C. §§ 1330, 1602-1611

Holdings The appellate court affirmed the trial court's dismissal of plaintiffs' action.

Reasoning/Arguments The court held that subject matter jurisdiction was lacking and that the suit was time barred under the applicable statute of limitations.

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Int’l Law Norms “We therefore must interpret section 1350 in keeping with

the fact, well-known to the framers of section 1350, that a treaty and the law of nations are entirely different animals. As Judge Bork states, for two hundred years it has been established that treaties by their terms and context may create enforceable obligations. Similarly, for two hundred years, it has been established that the law of nations leaves up to municipal law whether to provide a right of action to enforce obligations created by the law of nations. Section 1350 opened federal courts to aliens to challenge violations of treaties insofar as treaty terms expressly or impliedly established affirmative and judicially enforceable obligations. Congress also opened courts to aliens to challenge violations of the law of nations, to the extent that the law of nations established a binding obligation. Section 1350 thus provides a forum for actions brought to enforce obligations binding on parties, whether as a result of treaties or the law of nations. To argue that § 1350, under any formulation, could create a right to sue or somehow make all treaties self-executing, when parties to the treaties intend otherwise, is to thoroughly misconstrue the nature of treaty law.”

Customary Law Analysis “The law of nations thus permits countries to meet their international duties as they will, see L. HENKIN, R. PUGH, O. SCHACHTER & H. SMIT, INTERNATIONAL LAW 116 (1980); cf. 1 C. HYDE, INTERNATIONAL LAW 729 n.5 (2d rev. ed. 1945). In some cases, states have undertaken to carry out their obligations in agreed-upon ways, as in a United Nations Genocide Convention, which commits states to make genocide a crime, L. HENKIN, R. PUGH, O. SCHACHTER & H. SMIT, supra, or in bilateral or multilateral treaties. Otherwise, states may make available their municipal laws in the manner they consider appropriate. See RESTATEMENT (SECOND) OF FOREIGN RELATIONS LAW § 3 comment h & illustration 5 (1965) (domestic law of a state may provide a remedy to a person injured by a violation of a rule of international law). As a result, the law of nations never has been perceived to create or define the civil actions to be made available by each member of the community of nations; by consensus, the states leave that determination to their respective municipal laws. Indeed, given the existing array of legal systems within the world, a consensus would be virtually impossible to reach -- particularly on the

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technical accoutrements to an action -- and it is hard even to imagine that harmony ever would characterize this issue.”

Defenses Other Info of Interest CASE Topo v. Dhir

210 F.R.D. 76 S.D.N.Y.,2002. Sept. 13, 2002.

Judge Hon. Ronald L. Ellis Appointed by Pres. ? (magistrate judge appointed in 1993)

Summary of Facts: Alien former domestic servant sued her former employers under Alien Tort Claims Act (ATCA), alleging trafficking and involuntary servitude, false imprisonment, and violations of federal and state minimum wage laws.

Holdings On employee's motion for protective order the District Court, held that employee was entitled to protective order barring employers from inquiring into her immigration status. Motion granted.

Reasoning/Arguments District court deciding issue of its subject matter jurisdiction under Alien Tort Claims Act (ATCA) looks to citizenship of plaintiff, and does not inquire into plaintiff's immigration status. 28 U.S.C.A. § 1350. The Second Circuit follows a three prong test in determining subject matter jurisdiction under the ATCA. The ATCA "confers federal subject-matter jurisdiction when the following three conditions are satisfied: (1) an alien sues (2) for a tort (3) committed in violation of the law of nations." Kadic v. Karadzic, 70 F.3d 232, 238 (2d Cir.1995). Typically, courts deciding subject matter jurisdiction look to the citizenship of the plaintiff, and do not inquire into their immigration status. See Kadic, 70 F.3d at 236 (noting that plaintiffs "are Croat and Muslim citizens."); Amerada Hess Shipping Corp. v. Argentine Republic, 830 F.2d 421, 425 (2d Cir.1987)(finding subject matter jurisdiction because plaintiff corporation deemed Liberian citizen).



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CASE U.S. v. Yousef

327 F.3d 56 C.A.2 (N.Y.),2003. Decided: April 4, 2003

Judge JOSÉ A. CABRANES, Circuit Judge. Appointed by Pres. Clinton

Summary of Facts: Defendant and a codefendant were convicted in a jury trial in the United States District Court for the Southern District of New York, Kevin Thomas Duffy, J., of charges relating to a conspiracy to bomb United States commercial airliners in southeast Asia, and defendant and a different codefendant were convicted by a jury in the same court, on charges relating to the 1993 bombing of the World Trade Center (WTC) in New York City. Defendants appealed.

Holdings (1) district court had extraterritorial jurisdiction over defendants' attempts to damage aircraft in foreign air commerce; (2) venue for airline bombing case was proper in Southern District of New York; (3) codefendant's confession to FBI agents while being brought to the U.S. from the Philippines was admissible; (4) codefendant received adequate discovery from the Philippines; (5) defendant's waiver of his Miranda rights was not rendered invalid simply because his right to counsel had attached; (6) defense could be required to produce their experts for Daubert hearing; (7) defendants were not prejudiced by joint trial; (8) evidence from first WTC bombing trial was inadmissible; (9) retention of alternate jurors after jury retired to deliberate was not plainly erroneous; (10) 180-year sentences were not unlawful upward departures from statutory maximum term of life imprisonment; (11) fine and restitution requirements of one codefendant's sentence required modification so as to become payable only in event codefendant received income from sale of his account of WTC bombing; (12) court lacked jurisdiction to consider challenges to conditions of confinement recommended by district court; (13) procedural defects in handling of materials relating to a jailhouse informant did not warrant reversal or a fact-finding hearing; and (14) district judge did not abuse his discretion by declining to recuse himself.

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Affirmed as modified.


Treaty law also may provide a basis for a State's action independent of the principles of customary international law. A treaty creates obligations in States parties to it that may differ from those of customary international law, and it generally is immaterial whether customary international law points in the same or in a different direction than the treaty obligation. See, e.g., The Tunis and Morocco Nationality Decrees Case, (Great Britain v. France) 1923 P.C.I.J. (ser. B) No. 4, at 24 (Feb. 7) (Permanent Court of International Justice, predecessor of the International Court of Justice ("ICJ"), recognizing that a country's treaty obligations could supersede the general norms of customary international law for the purpose of determining which questions of nationality fall within the domaine réservé of a State); see also Clive Parry, The Sources and Evidences of International Law 33 (1965) ("[I]f two or more States have unequivocally agreed to something by treaty, in relation to the matter in hand nothing other than the treaty has much relevance.").


Customary international law is part of the law of the United States to the limited extent that where there is no treaty, and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations. Treaty law may provide a basis for a State's action independent of the principles of customary international law. Customary international law is part of the law of the United States to the limited extent that where there is no treaty, and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations. While the District Court correctly held that jurisdiction was proper over each count, and we affirm the substance of its rulings in full, we hold that the District Court erred in partially grounding its exercise of jurisdiction over Count Nineteen--the bombing of Philippine Airlines Flight 434 while en route from Manila, the Philippines, via Cebu, to Japan--on the universality principle. We conclude, instead, that jurisdiction over Count Nineteen was proper, first, under domestic law, 18 U.S.C. § 32; second, under the aut dedere aut punire ("extradite or

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prosecute") jurisdiction created by the Montreal Convention, as implemented in 18 U.S.C. § 32 (destruction of aircraft) and 49 U.S.C. § 46502 (aircraft piracy); and third, under the protective principle of the customary international law of criminal jurisdiction. While it is not possible to claim that the practice or policies of any one country, including the United States, has such authority that the contours of customary international law may be determined by reference only to that country, it is highly unlikely that a purported principle of customary international law in direct conflict with the recognized practices and customs of the United States and/or other prominent players in the community of States could be deemed to qualify as a bona fide customary international law principle. While it is permissible for United States law to conflict with customary international law, where legislation is susceptible to multiple interpretations, the interpretation that does not conflict with "the law of nations" is preferred. Murray v. Charming Betsy, 6 U.S. (2 Cranch) 64, 118, 2 L.Ed. 208 (1804). [FN26] The Charming Betsy canon comes into play only where Congress's intent is ambiguous. Attorney General of Canada v. R.J. Reynolds Tobacco Holdings, Inc., 268 F.3d 103, 128 (2d Cir.2001) (stating that United States courts " 'are not to read general words ... without regard to the limitations customarily observed by nations upon the exercise of their powers.' " (quoting United States v. Aluminum Co. of Am., 148 F.2d 416, 443 (2d Cir.1945). The Supreme Court stated in The Nereide, 13 U.S. (9 Cranch) 388, 3 L.Ed. 769 (1815) (Marshall, C.J.), that while courts are "bound by the law of nations which is a part of the law of the land," Congress may "manifest [its] will" to apply a different rule "by passing an act for the purpose." Id. at 423. The Court reaffirmed this principle in McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U.S. 10, 83 S.Ct. 671, 9 L.Ed.2d 547 (1963), stating that Congress may enact laws superseding "the law of nations" if "the affirmative intention of the Congress [is] clearly expressed." Id. at 21- 22, 83 S.Ct. 671; see also, e.g., Comm. of United States Citizens Living in Nicaragua v. Reagan, 859 F.2d 929, 939 (D.C.Cir.1988) (holding that "under domestic law, statutes supersede customary international law" and that statutes are not subject to challenge on the basis of a violation of customary international law); United States v. Howard-Arias,

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679 F.2d 363, 371-72 (4th Cir.1982) (holding that "the United States may violate international law principles" if Congress enacts federal statutes that conflict with international law). It also is established that Congress "may legislate with respect to conduct outside the United States, in excess of the limits posed by international law." United States v. Pinto-Mejia, 720 F.2d 248, 259 (2d Cir.1983). Norms of customary international law can vitiate a treaty's effect only in the rare instance where the treaty or a provision thereof violates one of the few so-called "peremptory norms" of international law, or "jus cogens." See, e.g., United States v. Matta-Ballesteros, 71 F.3d 754, 764 n. 5 (9th Cir.1995) (stating, in dicta, that "[j]us cogens norms, which are nonderogable and peremptory, enjoy the highest status within customary international law, are binding on all nations, and can not [sic] be preempted by treaty"); Comm. of United States Citizens Living in Nicaragua, 859 F.2d at 940 (stating in dicta that "[a] treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law" (internal quotation marks and citations omitted)); see also Vienna Convention on the Law of Treaties, May 23, 1969, art. 53, 1155 U.N.T.S. 332, 344, S. Exec. Doc. L, 92-1 ("Vienna Convention") [FN28] (stating that "a *95 treaty is void if it conflicts with a peremptory norm of general international law from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character"); Ian Brownlie, Principles of Public International Law 627 (5th ed. 1999). A treaty between two nations to engage in the slave trade, for example, would be void; a treaty to engage in the ivory trade, though repugnant to many contemporaries, would not be. The Restatement (Third)'s innovations on the subject of customary international law have been controversial. For example, the Restatement (Third) suggests that customary international law might trump prior inconsistent statutory law, binding the executive branch. See Restatement (Third) § 115(2) & cmt. d & Reporters' Note 4. This proposition is without foundation or merit. Indeed, other commentators have called the Restatement (Third)'s view that customary international law could supersede federal statutory law "pure bootstrapping," noting that the only authority cited for that proposition in the Restatement (Third) is a single article by the Restatement (Third)'s own Reporter--that is, the citation is

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without external authority. Curtis A. Bradley & Jack L. Goldsmith, Customary International Law as Federal Common Law: A Critique of the Modern Position, 110 Harv. L. Rev. 815, 835-36 & nn. 142-43 (1997). Even the current President of the ALI notes that this rule was "much debated when the Restatement (Third) was under discussion in the Institute ... [and is] not completely free from controversy now." Michael Traynor, That's Debatable: The ALI as a Public Policy Forum, Part II, 25 The ALI Reporter 1, 2 (2002). Inasmuch as the Restatement (Third) notes that certain of its positions are "at variance" with the practice and customs followed by the United States in its international relations, and incorrectly asserts that customary international law may trump United States statutory law, courts must be vigilant and careful in adopting the statements of the Restatement (Third) as evidence of the customs, practices, or laws of the United States and/or evidence of customary international law.


CASE Wiwa v. Royal Dutch Petroleum Co.

226 F.3d 88, C.A.2 (N.Y.),2000. Judge Hon. James L. Oakes, appointed in 1971 by President Nixon;

Hon. Pierre N. Leval, appointed in 1993 by President Clinton; Hon. Rosemary S. Pooler, appointed in 1998 by President Clinton

Summary of Facts: Nigerian émigrés sued two foreign holding companies, one incorporated in the Netherlands and one incorporated in the United Kingdom, under the Alien Tort Claims Act (ATCA) and other laws, alleging that companies participated in human rights violations against them in retaliation for their political opposition to companies' oil exploration activities in Nigeria. These activities included killing, torture, and arbitrary detention.

Holdings (1) New York investor relations office of companies' subsidiary was an "agent" of the companies for purposes of New York's personal jurisdiction statute; (2) companies, through such office, were "doing business" in New York, as required to confer jurisdiction under the statute; (3) subjecting

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companies to personal jurisdiction in New York did not violate due process clause; and (4) district court failed to weigh all relevant considerations in forum non conveniens determination.

Reasoning/Arguments Int’l Law Norms In passing the Torture Victim Prevention Act, 28 U.S.C. §

1350 App., in 1991, Congress expressly ratified our holding in Filartiga that the United States courts have jurisdiction over suits by aliens alleging torture under color of law of a foreign nation, and carried it significantly further. While the 1789 Act expressed itself in terms of a grant of jurisdiction to the district courts, the 1991 Act (a) makes clear that it creates liability under U.S. law where under "color of law, of any foreign nation" an individual is subject to *105 torture or "extra judicial killing," and (b) extends its remedy not only to aliens but to any "individual," thus covering citizens of the United States as well. 28 U.S.C. § 1350 App. The TVPA thus recognizes explicitly what was perhaps implicit in the Act of 1789--that the law of nations is incorporated into the law of the United States and that a violation of the international law of human rights is (at least with regard to torture) ipso facto a violation of U.S. domestic law. See H.R.Rep. No. 102-367, at 4 (1991)

Customary Law Analysis Deliberate torture perpetrated under the color of official authority violates universally accepted norms of international human rights law, and that such a violation of international law constitutes a violation of the domestic law of the United States, giving rise to a claim under the ATCA whenever the perpetrator is properly served within the borders of the United States

Defenses Forum non conveniens Other Info of Interest

CASE Wiwa v. Royal Dutch Petroleum Co.

Not Reported in F.Supp.2d S.D.N.Y.,2002. Feb. 28, 2002.

Judge WOOD, Kimba D.J. Appointed by Pres. Reagan

Summary of Facts: Plaintiffs allege violations of international, federal, and state law in connection with the Nigerian government's activities in the Ogoni region of Nigeria during the 1990s. Plaintiffs bring suit against two European oil companies [the "corporate defendants"], which plaintiffs allege directed and aided the

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Nigerian government in violating plaintiffs' rights, and against Brian Anderson, the former managing director of the Nigerian subsidiary of the oil companies. Plaintiffs filed the first action against the corporate defendants on November 6, 1996, and filed an Amended Complaint on April 29, 1997. By Order dated September 25, 1998 ["1998 Order"], the Court found that the corporate defendants were subject to personal jurisdiction in New York, but dismissed plaintiffs' amended complaint on forum non conveniens grounds. On appeal, the Second Circuit affirmed that the corporate defendants were subject to personal jurisdiction, but reversed the Court's forum non conveniens dismissal and remanded the action for further proceedings. See Wiwa v. Royal Dutch Petroleum Company, et al., 226 F.3d 88 (2d Cir.2000). Plaintiffs filed a new action against Brian Anderson on March 5, 2001. The Court had to consider the following in this case: (1) defendants' motion to dismiss the actions for lack of subject matter jurisdiction; (2) defendants' motion to dismiss claims for failure to state a claim for which relief may be granted; (3) defendants' motion to abstain on the basis of the act of state doctrine; and (4) defendant Anderson's motion to dismiss on the grounds of forum non conveniens.

Holdings The Court granted defendants' motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) with respect to two claims only:

(1) Owens Wiwa's Alien Torts Claim Act claims, 18 U.S.C. § 1350 ["ACTA"], founded on an alleged violation of his right to life, liberty and security of person, and

(2) his ACTA claim for arbitrary arrest and detention. Plaintiffs were given 30 days from the date of this Order to re-plead those claims. Defendants' motion to dismiss is denied in all other respects.

Reasoning/Arguments The Court read Kadic I to hold that the TVPA did not preempt torture and summary execution claims under the ATCA. It would not be reasonable for a claimant to be required to plead state action to assert a claim for summary execution or torture, but not to be required to plead state action to assert a lesser crime such as assault, arbitrary detention, or political persecution. For these reasons, the Court concluded that

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plaintiffs must demonstrate state action in order to proceed with their ATCA and TVPA claims. To determine whether a private actor acts under color of law in the context of a claim under ATCA and the TVPA, the Court must look to the standards developed under 42 U.S.C. § 1983. Plaintiffs contended that the facts alleged demonstrate a substantial degree of cooperative action between corporate defendants and the Nigerian government in the alleged violations of international law. Second, they argued that the facts demonstrate that Shell Nigeria and the Nigerian government engaged in significant cooperative action that violated plaintiffs' rights, and that corporate defendants had sufficient knowledge of this conduct that they may be held liable for Shell Nigeria's conduct. The Court found that plaintiffs pled facts that support their first theory of "joint action" and have therefore demonstrated that corporate defendants acted under color of law in the commission of acts alleged by plaintiffs to have violated international law. The Court need not consider plaintiffs' second theory of state action. In their Amended Complaint, plaintiffs allege various acts that, if proven, would demonstrate "a substantial degree of cooperative action between" corporate defendants and Nigerian officials in conduct that violated plaintiffs' rights. In February 1993, Royal Dutch / Shell met with Nigerian officials in England and the Netherlands to formulate an anti-MOSOP campaign Plaintiffs further allege that Royal Dutch / Shell made payments to the Nigerian military and police, contracted for the purchase of weapons for the Nigerian police, coordinated with the Nigerian military and police on intelligence matters related to the anti-MOSPO campaign, helped plan "raids and terror campaigns conducted in Ogoni", bribed (or attempted to bribe) witnesses to give false testimony against Saro-Wiwa, provided the Nigerian military with boats and helicopters to facilitate attacks on Ogoni villages, and paid the Nigerian military to respond violently to complaints regarding oil spills and to generally monitor and "contain" protests against Royal Dutch / Shell activities. Plaintiffs' allegations suffice to support a claim that defendants were "willful participant[s] in joint action with the state or its agents," and can hence be treated as state actors for the purpose of the ACTA.

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A norm is "universal, definable and obligatory" if: (1) no state condone[s] the act in question and there is a recognizable "universal" consensus of prohibition against it; (2) there are sufficient criteria to determine whether a given action amounts to the prohibited act and thus violates the norm; [and] (3) the prohibition against it is non-derogable and there. The Restatement of Foreign Relations Law provides a slightly different measure of whether a legal norm is part of "international law": "Customary international law results from a general and consistent practice of states followed by them from a sense of legal obligation." Rest. (Third) Foreign Relations Law § 102(2) (1987). Plaintiffs alleged violations of seven international norms:

(1) summary execution;

(2) crimes against humanity (all plaintiffs);

(3) torture ;

(4) cruel, inhuman, or degrading treatment (all plaintiffs);

(5) arbitrary arrest and detention;

(6) violation of the rights to life, liberty and security of person (7) violation of the right to peaceful assembly and association).

Two other district courts’ disparate approaches underscore the lack of clarity concerning the status of claims for "cruel, inhuman, or degrading treatment" under the ACTA. In Forti I, the court held that plaintiffs' allegations of cruel, inhuman, or degrading treatment "lacks readily ascertainable parameters" and that, therefore, "it is unclear what behavior falls within the proscription." Forti I, 672 F.Supp at 1543. The Forti I court concluded that, "[l]acking the requisite elements of universality and definability, this proposed tort cannot qualify as a violation of the law of nations." Id. at 1543. In Xuncax, by contrast, Judge Woodlock considered the definability of this international norm, and maintained that certain "cruel, inhuman, and degrading treatment" was recognized under the ACTA. Judge Woodlock held that if the conduct underlying the allegation of "cruel, inhuman, or degrading treatment"

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constituted a clear violation of international norms, then such claims are cognizable under the ACTA.

Plaintiffs also allege violations of the international norm prohibiting crimes against humanity--a norm that is customary, obligatory, and well--defined in international jurisprudence. As stated by the Hague tribunal in Prosecutor v. Tadic, 36 I.L.M. 908 (Case No. IT-94-1-T, May 7, 1997) "the commission of crimes against humanity violate[s] customary international law."

Defendants do not dispute that customary international law prohibits violations of the right to life, liberty, and personal security, and of the right to peaceful assembly and expression. In its general terms, the right to life, liberty, and personal security encompasses the right not to be subjected to arbitrary detention, summary execution, and other abusive treatment by governments.


CASE Wong-Opasi v. Tennessee State University

229 F.3d 1155 (Table) C.A.6 (Tenn.),2000.

Judge Hon. David A. Nelson, appointed in 1985 by President Reagan; Hon. Eugene E. Siler Jr., appointed in 1991 by President Bush; Hon. Alice M. Batchelder, appointed in 1991 by President Bush.

Summary of Facts: Wong-Opasi, a former professor at Tennessee State University, sued her former employer, the Tennessee Board of Regents, and multiple employees of the university. The individual employees were sued in their individual and official capacities. Wong-Opasi alleged that, by under-paying her for time worked, denying her tenure, and then dismissing her from her position, the defendants violated the Fair Labor Standards Act of 1963 ("FLSA"); the Alien Tort Claims Act; and state law.

Holdings The district court dismissed the suits for want of jurisdiction. No exceptional reason to overturn, therefore, dismissal aff’d.

Reasoning/Arguments None of Wong-Opasi's claims is based on a violation of the law of nations or a treaty. Her suits are essentially contract and tort actions that have their genesis in state law. No jurisdiction for ATCA claims.

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CASE Xucax v. Gramajo,

886 F. Supp. 162 (D. Mass. 1995) Judge Hon. DOUGLAS P. WOODLOCK, Appointed by Pres.

Reagan Summary of Facts: Plaintiffs, aliens and American nun, filed an action against

defendant, the former Guatemalan Minister of Defense (Minister), to recover damages suffered because of their torture, assault, and false imprisonment, and the death of their relatives. They asserted their claims under the Alien Tort Claims Act (Act), 28 U.S.C.S. § 1350, and the Torture Victim Protection Act of 1991 (TVPA).

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Holdings The court granted judgment in favor of all the aliens, except one, and in favor of the nun against the Minister and awarded compensatory and punitive damages. One alien's action was dismissed for want of jurisdiction.

Reasoning/Arguments The court found that in enacting 28 U.S.C.S. § 1350, Congress had exercised its Article III power to allow aliens to seek civil redress in federal court for wrongs committed in violation of international law or United States treaties. In addition, the aliens' allegations of torture, arbitrary detentions, summary executions, and disappearances were sufficient to prove violations of international law. The nun's allegations of defamation and torture were also sufficiently proved. The court held that one of the aliens, whose only claims were for cruel and unusual punishment stemming from his self-imposed exile due to events surrounding his relatives, were not actionable and were dismissed. Compensatory and punitive damages were awarded to the aliens and the nun.

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“Judicial opinions that have had occasion to impart meaning to § 1350 have not reached a consensus regarding the statute's import. A majority of courts, interpreting the statute broadly, have held that if an alien plaintiff can establish that the abuses allegedly inflicted upon her constitute violations of international law, § 1350 grants both a federal private cause of action as well as a federal forum in which to assert the claim. See, e.g., Marcos Estate II, 25 F.3d at 1475 (9th Cir. 1994) (§ 1350 "creates a cause of action for violations of specific, universal and obligatory human rights standards,"); Amerada Hess Shipping Corp. v. Argentine Republic, 830 F.2d 421, 424-25 (2d Cir. 1987), rev'd on other [**39] grounds, 488 U.S. 428, 109 S. Ct. 683, 102 L. Ed. 2d 818 (1989) Filartiga v. Pena-Irala, 630 F.2d 876, 887 (2d Cir. 1980); Paul v. Avril, 812 F. Supp. 207, 212 (S.D. Fla. 1993); Forti v. Suarez-Mason, 672 F. Supp. 1531, 1539 (N.D. Cal. 1987), on reconsideration on other grounds, 694 F. Supp. 707 (N.D. Cal. 1988). “


“After extended reflection, I find that § 1350 yields both a jurisdictional grant and a private right to sue for tortious violations of international law (or a treaty of the United States), without recourse to other law as a source of the cause of action.”

Customary Law Analysis “[F]or a court to determine whether a plaintiff has a claim for a tort committed in violation of international law, it must [first] decide whether there is an applicable norm of international law . . . and [then] whether it was violated in the particular case." Marcos Estate I, 978 F.2d at 502.... In reaching such a decision, courts are guided by "the usage of nations, judicial opinions and the works of jurists" as "the sources from which customary international law is derived." Filartiga, 630 F.2d at 884. For further guidance regarding the "norms" of international law, courts and international law scholars look to whether the standard can be said to be "universal, definable and obligatory." Forti I, 672 F. Supp. at 1540. These qualifications essentially require that 1) no state condone the act in question and there is a recognizable "universal" consensus of prohibition against it; 2) there are sufficient criteria to determine whether a given action amounts to the prohibited act and thus violates the norm; 3) the prohibition against it is non-derogable and therefore binding at all times upon all actors. See generally Forti I, 672 F. Supp. at 1539-40; Aff. of Int'l Law Scholars, Ortiz

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Ex. M; Restatement (Third) of Foreign Relations Law §§ 701-02.

Defenses Defendant waived his statute of limitation defense by failing to pursue it (and defaulting) in this case.


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CASE Zapata v. Quinn, 707 F.2d 691 (2nd Cir. 1983)

Judge PER CURIAM

Summary of Facts: Appellant lottery winner challenged the judgment of the

United States District Court for the Southern District of New York that dismissed her civil rights action against appellees, state and its lottery director. Appellant claimed that she was deprived of her property without due process because appellee lottery director adhered to N.Y. Comp. Codes R. & Regs. tit. 21, § 2817.6(h), rather than paying her prize in a lump sum.

Holdings The court affirmed the judgment that dismissed appellant lottery winner's civil rights action against appellees, state and its lottery director. The court held that appellant was not deprived of her property without due process of law, merely because the prize was paid incrementally instead of in one lump sum. Appellant failed to state a claim upon which the alien tort statute could be applied.

Reasoning/Arguments The court held that 28 U.S.C.S. § 1350, the alien tort statute, applied only to shockingly egregious violations of universally recognized principles of international law. The court found that appellant clearly failed to state, even by the wildest stretch of imagination, a claim upon which relief could be granted. Because her action and her appeal were completely frivolous, and noting the unreasonable and vexatious multiplication of proceedings by appellant's attorney, the court awarded double costs against appellant and her attorney, for which they were jointly and severally liable.

Int’l Law Norms Customary Law Analysis Defenses Other Info of Interest CASE Zhou v. Peng

286 F.Supp.2d 255 S.D.N.Y.,2003. Sept. 30, 2003.

Judge Hon. Hon. William H. Pauley III Appointed by Pres. Clinton

Summary of Facts: Student participants in 1989 Tiananmen Square protests in Beijing brought action against official of People's Republic of

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China under the Alien Tort Claims Act and the Torture Victim Protection Act. The United States District Court for the Southern District of New York, 2002 WL 1835608, issued an order granting plaintiffs' ex parte application to effect service by alternate means and directing State Department employee to whom the summons and complaint was delivered to deliver the documents to Chinese defendant during defendant's stay in New York, and government moved to vacate.

Holdings The District Court, Pauley, J., held that: (1) order was barred by sovereign immunity, and (2) express waiver of the Government's sovereign immunity in Administrative Procedure Act (APA) was not applicable. Motion granted.

Reasoning/Arguments A waiver of sovereign immunity is a prerequisite to subject-matter jurisdiction in a suit against the government, but the issues of subject-matter jurisdiction and sovereign immunity are nonetheless wholly distinct. Whether a proceeding is deemed against the sovereign, for purpose of sovereign immunity analysis, is determined by analyzing whether the effect of the judgment would be to restrain the Government from acting, or to compel it to act. Order directing employee of United States Department of State to whom the summons and complaint was delivered to deliver the documents to Chinese defendant during defendant's stay in New York was barred by sovereign immunity; service authorized by alternate means was not completed upon delivery to State Department employee, so order's requirement that employee then deliver documents to defendant was not mere surplusage.



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