United States: From Filartiga To Flores And Beyond: International Litigation Under The Alien Tort Statute

While Jones Day litigators routinely are involved in representing clients in many "international" disputes pending in United States courts, those disputes generally tend to involve matters of private international law, i.e. breaches of contract, intellectual property claims, and other disputes. In the past few years, however, the Firm increasingly has become involved in representing corporate clients in actions alleging violations of "customary international law," an amorphous and constantly evolving set of legal principles. A number of significant claims have been filed by alien plaintiffs in federal courts across the United States against U.S. and alien corporations, alleging such wrongs as environmental pollution, property damage, personal injuries, unfair labor practices, violations of human rights, and even rape, torture, and murder.

What these disparate claims have in common is the statute upon which they purportedly are based: the Alien Tort Statute ("ATS") 28 U.S.C. § 1350. The recent proliferation of claims premised on the ATS has been accompanied by great controversy, as the courts and litigants attempt to define the meaning, purpose, and scope of this statute. As discussed below, recent decisions from the United States Court of Appeals for the Second Circuit and the United States Supreme Court have greatly clarified some aspects of the ATS in ways that are likely to narrow its scope and possibly to restrain its abuse.

Enacted as part of the Judiciary Act of 1789, the ATS provides in full as follows: "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." For almost 200 years following its enactment, the ATS was rarely invoked. Then, in 1980, the United States Court of Appeals for the Second Circuit issued the first signif- icant appellate decision addressing the statute, in Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980). In Irala Filartiga, the Second Filartiga Circuit held that the ATS provided federal court jurisdiction for claims by citizens of Paraguay against a former Inspector General of Police for atrocities, including torture, he allegedly committed while in office. In so ruling, the Second Circuit used expansive language, declaring that the ATS requires federal courts to "observe and construe the accepted norms of international law formerly known as the law of nations."

Filartiga initially was employed by aliens to pursue claims in United States courts against foreign state actors who had engaged in gross violations of human rights, such as torture and murder. See, e.g., In re Ferdinand E. Marcos Human Rights Litig., 25 F.3d 1467 (9th Cir. 1994). However, Litig Filartiga soon was being invoked to support federal jurisdiction and claims by aliens against private individuals and corporations for a wide variety of torts that were alleged to be violations of international law. See, e.g., Kadic v. Karadzici, 70 F.3d 232 Karadzici (2d Cir. 1995); Sarei v. Rio Tinto Plc., 2002 WL 1906814 (C.D. Plc Cal. 2002). These claims, which purported to extend both the ATS and Filartiga into uncharted waters, presented two fundamental recurring problems: the lack of any well-settled definition of (i) what constitutes "customary international law," and (ii) what are the proper sources and evidence of customary international law.

During the summer of 2003, the Second Circuit authoritatively addressed both issues in its most recent ATS opinion in Flores v. Southern Peru Copper Corporation, 343 F.3d 140 (2d Corporation Cir. 2003). Plaintiffs in Flores were Peruvians who brought per- sonal injury claims against Southern Peru Copper Corporation ("SPCC"), alleging that the company’s copper mining and refining operations caused plaintiffs’ and their decedents’ severe lung disease. Plaintiffs claimed that SPCC’s conduct violated the law of nations because it infringed on plaintiffs’ "right to life," "right to health," and right to "sustainable development." In support of their contention that these rights were recognized as "customary international law," plaintiffs relied on declarations of multinational organizations (such as the United Nations), international conventions, nonratified treaties, and affidavits of law professors. The Second Circuit affirmed the District Court’s dismissal of those claims and, in so holding, laid down a definitive test for lower courts to employ in determining "customary international law":

1. "[I]n order for a principle to become part of customary international law, states must universally abide by it;"
2. "[A] principle is only incorporated into customary international law if states accede to it out of a sense of legal obligation;"
3. Customary international law addresses only those "wrongs" that are "of a mutual, and not merely several, concern to the States;" and
4. In determining customary international law, the court must "look to concrete evidence of the customs and practices of states." That is, the court should "look primarily to the formal lawmaking and official actions of the States and only secondarily to the works of scholars as evidence of the established practice of States."

Applying this test to the alleged wrongs at issue in Flores, the Flores Second Circuit rejected plaintiffs’ efforts to prove the existence of customary international law on the basis of scholarly affidavits, unratified treaties, nonbinding resolutions and declarations of the United Nations or any of its agencies, other multinational declarations of principle, and decisions of multinational tribunals. The court concluded that the purely intranational environmental pollution at issue in Flores was not a wrong "clearly and unambiguously" recognized as a violation of customary international law.

Alvarez-Machain—The ATS Restrained? On June 29, 2004, the Supreme Court issued its decision in a pair of cases arising under the ATS. See Sosa v. Alvarez- Machain, Docket No. 03-339, Machain United States v. Alvarez-Machain, Docket No. 03-485. Both appeals involved the ATS claims filed by a Mexican citizen, Mr. Alvarez-Machain, who was abducted in Mexico at the behest of the United States Drug Enforcement Administration and transported to the United States to stand trial for his alleged participation in the torture and murder in Mexico of DEA agent Enrico Camarena. Mr. Alvarez-Machain was acquitted at his criminal trial and subsequently filed a civil action pursuant to the ATS against the Mexican national who had seized him, Mr. Sosa, and against the United States federal agents who had assisted Mr. Sosa. The appeals of Mr. Sosa and the United States required the Supreme Court to address several fundamental aspects of the ATS:

Does the ATS Provide for a Private Cause of Action? Filartiga and its progeny— including Flores— impliedly or expressly have concluded that the ATS not only provides for federal court jurisdiction but also provides a private right of action to sue for violations of customary international law. However, invoking the plain language of the ATS, its legislative history, and the intent underlying the enactment of the ATS, the Supreme Court concluded that the ATS was merely a juris- dictional statute and did not expressly or impliedly create a private right of action.

Does the ATS Apply to Modern Concepts of International Law? In Filartiga, and even Filartiga Flores, the Second Circuit , Flores equated modern and evolving concepts of international law with the ATS’s reference to "a tort only, committed in violation of the law of nations." Reviewing the ATS in its proper histori- cal context, the Supreme Court concluded the ATS provided a United States federal court forum for claims arising under the present-day law of nations to the extent that such claims were based on a "norm of international character accepted by the civilized world and defined with a specificity compa- rable to the features of the 18th century paradigms [of privacy and offenses against ambassadors]." The Supreme Court stressed that the judiciary had to take special care to avoid adverse foreign policy consequences in crafting remedies for violations of new norms of international law.

Does the ATS Provide for Liability Against Non-State Actors and/or for Non-Governmental Conduct? While Filartiga dealt with claims against a former Paraguayan government official, for official conduct under color of law, courts have expanded the scope of the ATS to cover claims against private individuals and entities and/or for conduct that is not under color of law. Indeed, Flores itself involved pollution claims against a private corporation. Increasingly, such claims have been premised on theories of accessorial liability, such as aiding and abetting. See, e.g., Doe v. Unocal Corp., 2002 WL 31063976 Corp (9th Cir. 2002), withdrawn pending reh’g en banc. However, banc there is support for the argument that the ATS, even if it otherwise provides for a cause of action by individuals against state actors, does not extend such liability to non-state actors and/or for non-state action. While the Supreme Court did not have occasion to pass on this question directly, there is considerable support in the decision to preclude such liability.

Flores and, to a greater extent, Alvarez-Machain, are likely Machain to change the face of ATS litigation significantly. It is all but inevitable that, notwithstanding Flores and Alvarez-Machain, plaintiffs’ counsel will attempt to revise and adapt their theories of liability for alleged violations of international law so as to retain a footing in the United States federal courts. It is equally inevitable that Jones Day litigators will be there, representing our U.S. and non-U.S. corporate clients at the fore- resenting front of this evolving area of international law.

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