Globalizing Law: The ATCA out of the Attic

Article excerpt

Alongside the proliferation of international treaties over the past half-century, an ongoing debate has grown in the United States over whether US courts should operate as part of an international system of law or remain an isolated entity. In a landmark ruling on June 29, 2004, the US Supreme Court upheld that US federal courts are open to hear complaints over violations of international law, thus allowing foreign victims of serious human rights abuses to sue individuals or companies in US courts.

This Supreme Court ruling upheld the core principles of the 1789 Alien Tort Claims Act (ATCA), which grants "the [US] district courts ... 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." The act was likely passed to facilitate civil suits by aggrieved ambassadors and victims of piracy, but it lay forgotten for the next two centuries until 1980, when the US Second Circuit Court set precedent for the use of the ATCA in prosecuting violations of international law. Since then, the ATCA has been interpreted to apply to a number of extreme violations of international human rights and customary international law, including torture, war crimes, genocide, slavery, piracy, unlawful detention, and summary execution. There have been numerous unsuccessful attempts to expand these holdings to other violations: Bosnian Muslims brought suit against Serb leader Radovan Karadzic under the ACTA; Holocaust survivors have used it to pursue damages from Swiss banks; and victims of the Abu Ghraib prison abuses are now invoking the act to sue the prison's private contractors. The ATCA is different from laws that simply incorporate international law into domestic code, as it allows aliens residing abroad to partake in tort claims (both as plaintiffs and defendants) in US courts. The ATCA is also notable because it allows suits against corporations complicit in human rights abuses abroad; suits have been heard against companies including Coca-Cola, DaimlerChrysler, and the oil companies Royal Dutch/Shell, Unocal, and ExxonMobil.

The June 2004 ruling on the ATCA clarifies the scope of the act, limiting it to the most serious human rights violations of universal jurisdiction. The case before the Supreme Court, United States v. Alvarez-Machain, was thrown out, as the Court found that the Mexican doctor's complaint of illegal detention was not serious enough. That limitation will exclude a number of the suits under the ATCA, such as those advocating for labor unions or environmental standards. …