On January 10, 1996, the US Court of Appeals for the Eleventh Circuit issued a ruling on Abebe-Jira v. Negewo 72 F.3d 844 (11th Cir. 1996). Negewo claimed that the lawsuit should not have been heard because the courts did not have subject matter jurisdiction and that a non-justiciable political question was present.
The 11th Circuit dismissed both claims of Mr. Negewo and upheld the ruling of the lower court. When writing about the subject matter jurisdiction the court quoted Filartiga, "[S]ection 1350 should interpret international law as it has evolved and exists at the time of the case." (Filartiga 630 F.2d 876 (2d Cir. 1980)). The court then quotes a number of other cases that have interpreted Filartiga to allow rights that are already internationally recognized. For an alien to file a claim under section 1350 the alien needs to meet three conditions: (1) an alien sues (2) for a tort (3) committed in violation of the law of nations (i.e. international law.) Kadic. v Karadzic 70 F.3d 232 (2d Cir. 1995) Furthermore, Congress can enact legislation that allows certain groups of people access to the federal court system and this law allows that.
The claim that this was a non-justiciable political question was quickly thrown out by the court citing Linder v. Portocarrero , 963 F2d 232 (11th Cir. 1992)
Showing posts with label Alient Tort Claim Act. Show all posts
Showing posts with label Alient Tort Claim Act. Show all posts
Monday, June 7, 2010
Thursday, December 10, 2009
Al Odah v. United States
On March 11, 2003 the Court of Appeals for the District of Columbia ruled on Al Odah v. United States 321 F.3d 1134 (2003 C.A.D.C.). The short facts are as followed "aliens captured abroad during hostilities in Afghanistan and held abroad in United States military custody at the Guantanamo Bay Naval Base in Cuba brought three actions contesting the legality and conditions of their confinement. The ultimate question presented in each case is whether the district court had jurisdiction to adjudicate their actions.
The complaint alleges: The complaint alleges that the detainees were in Afghanistan and Pakistan as volunteers providing humanitarian aid; that local villagers seeking bounties seized them and handed them over to United States forces; and that they were transferred to Guantanamo Bay sometime between January and March 2002. A representative of the United States Embassy in Kuwait informed the Kuwaiti government of their whereabouts...plaintiffs claim a denial of due process under the Fifth Amendment, tortious conduct in violation of the law of nations and a treaty of the United States, and arbitrary and unlawful governmental conduct. They seek a declaratory judgment and an injunction ordering that they be informed of any charges against them and requiring that they be permitted to consult with counsel and meet with their families. Id. at 1136.
The court held that the rule put forward in Eisentrager 339 U.S. 763 (1950) precluded the aliens from claiming habeas corpus. The majority of the opinion breaks down the courts interpretation of the applicability of habeas corpus to aliens being held at a military detention facility that is on land leased to the United States military. The Court pays short attention to Filartiga or the Alien Tort Statute holding: the detainees are in all relevant respects in the same position as the prisoners in Eisentrager. They cannot seek release based on violations of the Constitution or treaties or federal law; the courts are not open to them. Whatever other relief the detainees seek, their claims necessarily rest on alleged violations of the same category of laws listed in the habeas corpus statute, and are therefore beyond the jurisdiction of the federal courts. Nothing in Eisentrager turned on the particular jurisdictional language of any statute; everything turned on the circumstances of those seeking relief, on the authority under which they were held, and on the consequences of opening the courts to them. With respect to the detainees, those circumstances, that authority, and those consequences differ in no material respect from Eisentrager. Id at 1145
The complaint alleges: The complaint alleges that the detainees were in Afghanistan and Pakistan as volunteers providing humanitarian aid; that local villagers seeking bounties seized them and handed them over to United States forces; and that they were transferred to Guantanamo Bay sometime between January and March 2002. A representative of the United States Embassy in Kuwait informed the Kuwaiti government of their whereabouts...plaintiffs claim a denial of due process under the Fifth Amendment, tortious conduct in violation of the law of nations and a treaty of the United States, and arbitrary and unlawful governmental conduct. They seek a declaratory judgment and an injunction ordering that they be informed of any charges against them and requiring that they be permitted to consult with counsel and meet with their families. Id. at 1136.
The court held that the rule put forward in Eisentrager 339 U.S. 763 (1950) precluded the aliens from claiming habeas corpus. The majority of the opinion breaks down the courts interpretation of the applicability of habeas corpus to aliens being held at a military detention facility that is on land leased to the United States military. The Court pays short attention to Filartiga or the Alien Tort Statute holding: the detainees are in all relevant respects in the same position as the prisoners in Eisentrager. They cannot seek release based on violations of the Constitution or treaties or federal law; the courts are not open to them. Whatever other relief the detainees seek, their claims necessarily rest on alleged violations of the same category of laws listed in the habeas corpus statute, and are therefore beyond the jurisdiction of the federal courts. Nothing in Eisentrager turned on the particular jurisdictional language of any statute; everything turned on the circumstances of those seeking relief, on the authority under which they were held, and on the consequences of opening the courts to them. With respect to the detainees, those circumstances, that authority, and those consequences differ in no material respect from Eisentrager. Id at 1145
Tuesday, October 27, 2009
Background on Filartiga
This post will attempt to portray what events happened in the Filartiga case leading up to the lawsuit in federal court. Full description of the events are beyond the scope of this blog and the judicial opinion gives a decent description. Filartiga can be found at Filartiga v Pena-Irala 577 F.Supp. 860 (D.C.N.Y. 1984), however the court only gives cursory description of the events. An in depth look at the case can be found in The Anatomy of Torture: A Documentary History of Filartiga v. Pena-Irala by William J. Aceves.
The whole case underlying Filartiga occured in Paraguay. The deceased, Joelito Filartiga was the son of Dr. Filartiga, a prominent human rights advocate in Paraguay against the Stroessner regime. Dr. Filartiga had been tortured on more than one occassion in the past. Dolly Filartiga was the deceased brother and a victim of some of the actions of the Defendant, Pena-Irala. The Defendant Pena-Irala was the Inspoector General of Police of Asuncion. He happened to live a few homes down from the victims.
Joelito was tortured and killed by the defendant. According to court records in Paraguay Joelito was killed in a jealous rage when the hsband of Pena-Irala's daughter caught the two of them in bed. However, medical examinations showed evidence of torture including electricity, broken bones and stabbing. Dolly was shown the murdered body of her brother and told by the defendant that they have what they were looking for and deserved.
The legal proceedings in Paraguay were a sham. The attorney that attempted to represent the Filartiga's was threatened and he finally had to drop the case. Over time, Dolly left Paraguay for the United States to get away from Paraguay. However, she found out that Pena-Irala was in New York with his wife but had overstayed their Visa. This quickly set forth a series of events that lead to the deportation proceedings against Pena-Irala, the filing of the civil action in federal court and the begining of a case that empowered an old law.
The whole case underlying Filartiga occured in Paraguay. The deceased, Joelito Filartiga was the son of Dr. Filartiga, a prominent human rights advocate in Paraguay against the Stroessner regime. Dr. Filartiga had been tortured on more than one occassion in the past. Dolly Filartiga was the deceased brother and a victim of some of the actions of the Defendant, Pena-Irala. The Defendant Pena-Irala was the Inspoector General of Police of Asuncion. He happened to live a few homes down from the victims.
Joelito was tortured and killed by the defendant. According to court records in Paraguay Joelito was killed in a jealous rage when the hsband of Pena-Irala's daughter caught the two of them in bed. However, medical examinations showed evidence of torture including electricity, broken bones and stabbing. Dolly was shown the murdered body of her brother and told by the defendant that they have what they were looking for and deserved.
The legal proceedings in Paraguay were a sham. The attorney that attempted to represent the Filartiga's was threatened and he finally had to drop the case. Over time, Dolly left Paraguay for the United States to get away from Paraguay. However, she found out that Pena-Irala was in New York with his wife but had overstayed their Visa. This quickly set forth a series of events that lead to the deportation proceedings against Pena-Irala, the filing of the civil action in federal court and the begining of a case that empowered an old law.
Thursday, October 15, 2009
More Early ATS cases part 3
In Aboudin v. Martin Oil Serv. Inc, 475 F.2d 142 (7th Cir. 1973) plaintiffs were four Nigerian citizens, who signed a contract with Alpha-Niger enterprises providing for training in the U.S. with Martin Oil Company and subsequent employment in Nigeria. Plaintiffs claim jurisdiction under a number of statutes including 28 USC 1350. The court held that on its face the plaintiffs' claim was for breach of contract and that even with the Fraud and deceit allege it does not rise to a claim violating international law.
In IIT v. Vencap, Ltd., 519 F.2d 1001 (2d Cir. 1975) plaintiff is a Luxemburg based trust fund bringing action against Vencap, Ltd for fraud, conversion and corporate waste. In this case there was no allegation of a treaty violation or that the statute should be read expansively to include the Eight Amendment (Thou shalt not steal) as part of the law of nations. The court determined that 28 U.S.C. 1350 did not provide grounds for jurisdiction.
In Nguyen Da Yen v. Kissinger, 528 F.2d 1194 (9th Cir. 1975) plaintiffs were a class action against the Immigration and Nationality Services claiming that as babylifted Vietnamese children, being held in detention from anyone but their parents was a violation of their human rights and the fifth amendment. The court was unwilling to determine the jurisdictional claim under 28 U.S.C. 1350 as they were not briefed on the topic. However, the court does say that illegation detention, transportation and siezure of an alien against his will may violate international law.
In Dreyfus v. Von Finck, 534 F.2d 24 (2d. Cir. 1976) the plaintiff a Swiss citizen brought suit against German nationals for the theft of property in Nazi Germany in 1938. The court held in this case there was no violation of a treaty that gave rise to the individual defendants or that a violation of international law occurred when the aggrieved parties are nationals of the acting state. The court recognized that the actions were likely tortious but did not rise to a violation of the law of nations. (This case has been disavowed by Filartiga and disagreed with by Garb - both to be discussed later.)
In Benjamins v. British European Airways, 572 F.2d 913 (2d Cir. 1978) the plaintiff a Dutch citizen residing in California brought an action against an international air carrier and manufacturer for the death of his wife and loss of baggage. The court held that the plaintiff failed to allege any cause of action that arose to a violation of the law of nations and therefore jurisdiction did not arise under 28 U.S.C. 1350.
In Huynh Thi Anh v. Levi, 586 F.2d 625 (6th Cir. 1979) plaintiffs were the grandmother and uncle of Vietnamese children claiming that the adoption agency and practices in Michigan violated the law of nations (amongst other claims). The court held that under the treaties cited no private cause of action existed and that the plaintiffs failed to state a cause of action under the Alien Tort Claims Act. The court did not find any international law that stated relatives of children had preferrential treatment over foster parents in attempting to adopt. For this reason, among others, the plaintiff did not have a cause of action.
In IIT v. Vencap, Ltd., 519 F.2d 1001 (2d Cir. 1975) plaintiff is a Luxemburg based trust fund bringing action against Vencap, Ltd for fraud, conversion and corporate waste. In this case there was no allegation of a treaty violation or that the statute should be read expansively to include the Eight Amendment (Thou shalt not steal) as part of the law of nations. The court determined that 28 U.S.C. 1350 did not provide grounds for jurisdiction.
In Nguyen Da Yen v. Kissinger, 528 F.2d 1194 (9th Cir. 1975) plaintiffs were a class action against the Immigration and Nationality Services claiming that as babylifted Vietnamese children, being held in detention from anyone but their parents was a violation of their human rights and the fifth amendment. The court was unwilling to determine the jurisdictional claim under 28 U.S.C. 1350 as they were not briefed on the topic. However, the court does say that illegation detention, transportation and siezure of an alien against his will may violate international law.
In Dreyfus v. Von Finck, 534 F.2d 24 (2d. Cir. 1976) the plaintiff a Swiss citizen brought suit against German nationals for the theft of property in Nazi Germany in 1938. The court held in this case there was no violation of a treaty that gave rise to the individual defendants or that a violation of international law occurred when the aggrieved parties are nationals of the acting state. The court recognized that the actions were likely tortious but did not rise to a violation of the law of nations. (This case has been disavowed by Filartiga and disagreed with by Garb - both to be discussed later.)
In Benjamins v. British European Airways, 572 F.2d 913 (2d Cir. 1978) the plaintiff a Dutch citizen residing in California brought an action against an international air carrier and manufacturer for the death of his wife and loss of baggage. The court held that the plaintiff failed to allege any cause of action that arose to a violation of the law of nations and therefore jurisdiction did not arise under 28 U.S.C. 1350.
In Huynh Thi Anh v. Levi, 586 F.2d 625 (6th Cir. 1979) plaintiffs were the grandmother and uncle of Vietnamese children claiming that the adoption agency and practices in Michigan violated the law of nations (amongst other claims). The court held that under the treaties cited no private cause of action existed and that the plaintiffs failed to state a cause of action under the Alien Tort Claims Act. The court did not find any international law that stated relatives of children had preferrential treatment over foster parents in attempting to adopt. For this reason, among others, the plaintiff did not have a cause of action.
Saturday, October 10, 2009
More Early ATS cases
In Upper Lakes Shipping LTD. v International Longshoremen's Association 33 F.R.D. 348 (S.D.N.Y. 1953) the Plaintiff a Canadian shipping company sued the defendant contending that the defendant was maliciously interfering with plaintiff's business and collective bargaining agreement with the Canadian Maritime Union. Plaintiff believed that defendants violated a treaty between the United States and Canada from 1909 concerning the boundary waters between the two States. Even though there was a treaty and it was potentially violated the court did not get jurisdiciton under the ATS because the sole remedy under the treaty was to pursue the case at the International Joint
In Lopes v. Reederei Richard Schroder 225 F.Supp. 292 (E.D. Pa. 1963) the plaintiff contended that unseaworthiness and negligence a tort committed in the violation of the law of nations or a treaty of the United States. The court held that the doctrine of unseaworthiness was judicially created and unique to the United States, therefore it was not part of the law of nations. Since it was unique to the United States, the United States could not be a party to a treaty holding that unseaworthiness was illegal. The court futher held that negligence does not fall under the category of violating the law of nations. Lopes v. Reederei Richard Schroder has an excellent recounting of jurist work regarding the language of the ATS. Id. at 296-297.
In Damaskinos v. Societa Navigacion Interamericana, S.A., Panama 225 F.Supp. 919 (S.D.N.Y. 1966) the court held that negligence in providing a seaman a safe place to work does not fall under the law of nations or a treaty of the United States. The Plaintif was an alien from Greece who signed a contract in Greece for employment on a Lebanon vessel. The contract contained the controlling law, and the court held that Greek law was the proper authority. The treaty relied upon by Plaintiff only gives the plaintiff the right to be heard in a U.S. court, it does not create an enforceable right. Therefore the case was dismissed.
In Valanga v. Metropolitan Life Insurance Company 259 F.Supp 324 (D.C. Pa. 1966) the court held that it was not a violation of the laws of nations for an insurance provider to not pay proceeds on a plan. Since this was a cause of action fo breach of contract the court was unwilling to accept Plaintiffs contention that it was a tort in violation of the law of nations. The case was dismissed.
In Lopes v. Reederei Richard Schroder 225 F.Supp. 292 (E.D. Pa. 1963) the plaintiff contended that unseaworthiness and negligence a tort committed in the violation of the law of nations or a treaty of the United States. The court held that the doctrine of unseaworthiness was judicially created and unique to the United States, therefore it was not part of the law of nations. Since it was unique to the United States, the United States could not be a party to a treaty holding that unseaworthiness was illegal. The court futher held that negligence does not fall under the category of violating the law of nations. Lopes v. Reederei Richard Schroder has an excellent recounting of jurist work regarding the language of the ATS. Id. at 296-297.
In Damaskinos v. Societa Navigacion Interamericana, S.A., Panama 225 F.Supp. 919 (S.D.N.Y. 1966) the court held that negligence in providing a seaman a safe place to work does not fall under the law of nations or a treaty of the United States. The Plaintif was an alien from Greece who signed a contract in Greece for employment on a Lebanon vessel. The contract contained the controlling law, and the court held that Greek law was the proper authority. The treaty relied upon by Plaintiff only gives the plaintiff the right to be heard in a U.S. court, it does not create an enforceable right. Therefore the case was dismissed.
In Valanga v. Metropolitan Life Insurance Company 259 F.Supp 324 (D.C. Pa. 1966) the court held that it was not a violation of the laws of nations for an insurance provider to not pay proceeds on a plan. Since this was a cause of action fo breach of contract the court was unwilling to accept Plaintiffs contention that it was a tort in violation of the law of nations. The case was dismissed.
Tuesday, September 22, 2009
Early Cases
The first reported case citing the ATS is Moxon v. The Fanny 17 F.Cas. 942 (D. Pa. 1793) (No. 9895) decided in 1793 which involved a libel action seeking restitution for a ship and its cargo taken in violation of the law of nations. The reference to the ATS was by implication, not by direct reference to the ATS.
Bolchos v. Darrel 3 F. Cas. 810 (D.C.S.C. 1795) (No. 1607) involved a lawsuit seeking restitution for the value of slaves taken from a captured Spanish ship. The district court recognized the plaintiff's right to seek compensation for a violation of substantive rights under the law of nations.
Between 1795 and 1979 the vast majority of cases that referenced the ATS did it in a cursory nature. The following cases are a good example of cases that referred to the ATS.
Huynh Thi Anh v. Levi, 586 F.2d 625 (6th Cir. 1979); Benjamins v. British European Airways, 572 F.2d 913 (2d Cir. 1978); Dreyfus v. Von Finck, 534 F.2d 24 (2d. Cir. 1976); Nguyen Da Yen v. Kissinger, 528 F.2d 1194 (9th Cir. 1975); IIT v. Vencap, Ltd., 519 F.2d 1001 (2d Cir. 1975); Abiodun v. Martin Oil Serv., Inc., 475 F.2d 142 (7th Cir. 1973); Valanga v. Metro. Life Ins. Co., 259 F. Supp. 324 (E.D. Pa. 1966); Damaskinos v. Societa Navigacion Interamericana, S.A., Panama, 255 F. Supp. 919 (S.D.N.Y. 1966); Lopes v. Schroder, 225 F. Supp. 292 (E.D. Pa. 1963); Upper Lakes Shipping, Ltd. v. Int'l Longshoremen's Ass'n, 33 F.R.D. 348 (S.D.N.Y. 1963); Adra v. Clift, 195 F. Supp. 857 (D. Md. 1961); Khedivial Line, S.A.E. v Seafarers' Int'l Union, 278 F.2d 49 (2d Cir. 1960); O'Reilly DeCamara v. Brooke, 209 U.S. 45 (1908)
Bolchos v. Darrel 3 F. Cas. 810 (D.C.S.C. 1795) (No. 1607) involved a lawsuit seeking restitution for the value of slaves taken from a captured Spanish ship. The district court recognized the plaintiff's right to seek compensation for a violation of substantive rights under the law of nations.
Between 1795 and 1979 the vast majority of cases that referenced the ATS did it in a cursory nature. The following cases are a good example of cases that referred to the ATS.
Huynh Thi Anh v. Levi, 586 F.2d 625 (6th Cir. 1979); Benjamins v. British European Airways, 572 F.2d 913 (2d Cir. 1978); Dreyfus v. Von Finck, 534 F.2d 24 (2d. Cir. 1976); Nguyen Da Yen v. Kissinger, 528 F.2d 1194 (9th Cir. 1975); IIT v. Vencap, Ltd., 519 F.2d 1001 (2d Cir. 1975); Abiodun v. Martin Oil Serv., Inc., 475 F.2d 142 (7th Cir. 1973); Valanga v. Metro. Life Ins. Co., 259 F. Supp. 324 (E.D. Pa. 1966); Damaskinos v. Societa Navigacion Interamericana, S.A., Panama, 255 F. Supp. 919 (S.D.N.Y. 1966); Lopes v. Schroder, 225 F. Supp. 292 (E.D. Pa. 1963); Upper Lakes Shipping, Ltd. v. Int'l Longshoremen's Ass'n, 33 F.R.D. 348 (S.D.N.Y. 1963); Adra v. Clift, 195 F. Supp. 857 (D. Md. 1961); Khedivial Line, S.A.E. v Seafarers' Int'l Union, 278 F.2d 49 (2d Cir. 1960); O'Reilly DeCamara v. Brooke, 209 U.S. 45 (1908)
Tuesday, September 15, 2009
Origins of ATS
The origins of the ATS are up to some debate as the historical record is largely silent on what the original legislatures were thinking. Some scholars believe that the ATS was enacted to allow the federal courts of the United States to be able to prosecute violations of international law that posed a threat to international peace and national security. For example the various states were unable or unwilling to prosecute claims by the British and other States for damages stemming from the Wars of Independence. The failure to prosecute posed serious problems for the nation as Britain may have initiated military action to acquire the demanded resources.
The Marbois incident is indicative of the underlying theory behind the ATS. In 1784 the French Consul in Philadelphia was assaulted and it created significant barriers to U.S./French relations. When the Constitutional Convention convened three years later the Marbois incident would have been fresh on everyone's mind.
Other scholars claim the ATS was a "badge of honor" representing a commitment to uphold international norms. Whatever the origins of the ATS may be, the ATS has had a significant impact in recent history on the ability of the United States to impose international norms with domestic courts on aliens. Where the line is drawn has yet to be seen and is open to significant debate.
The Marbois incident is indicative of the underlying theory behind the ATS. In 1784 the French Consul in Philadelphia was assaulted and it created significant barriers to U.S./French relations. When the Constitutional Convention convened three years later the Marbois incident would have been fresh on everyone's mind.
Other scholars claim the ATS was a "badge of honor" representing a commitment to uphold international norms. Whatever the origins of the ATS may be, the ATS has had a significant impact in recent history on the ability of the United States to impose international norms with domestic courts on aliens. Where the line is drawn has yet to be seen and is open to significant debate.
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