Deference, Human Rights and the Federal Courts: The Role of the Executive in Alien Tort Statute Litigation

By Clarens, Margarita S. | Duke Journal of Comparative & International Law, Spring 2007 | Go to article overview

Deference, Human Rights and the Federal Courts: The Role of the Executive in Alien Tort Statute Litigation


Clarens, Margarita S., Duke Journal of Comparative & International Law


INTRODUCTION

In the early days of our nation's history, Chief Justice John Marshall articulated two principles that form the core of a growing debate regarding international human rights litigation. The first was argued before the House of Representatives in 1800. "The President," Marshall said, "is the sole organ of the nation in its external relations, and its sole representative with foreign nations." (1) The second principle came three years later in the Chief Justice's infamous Marbury v. Madison opinion. He wrote, "It is emphatically the province and duty of the judicial department to say what the law is." (2) In a simpler world these ideas regarding the separation of powers would be mutually exclusive: international diplomacy on the one hand and domestic jurisprudence on the other. However, in the real world, the two spheres of government collide, begging the question: what role is there for the courts in announcing and applying the law when that law affects the nation's external relations? Further, in the realm of international human rights litigation, where cases of torture scream out for justice, when is it appropriate for the courts to defer to Executive authority? How much deference should the courts give when the President, through the Department of State and the Department of Justice, announces that foreign policy concerns trump those of the private litigants? Though "it is error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance," (3) a balance must be achieved between the concerns of the Executive and those of the litigants when those concerns are properly put before the court.

There are few areas in American jurisprudence where these issues are clearer than in the Alien Tort Statute (or Alien Tort Claims Act) (ATS) litigation that has come before the federal courts over the past twenty-seven years. Interestingly, the Alien Tort Statute was drafted nearly two hundred years before its recent ascent to the legal spotlight. The statute was passed with the Judiciary Act of 1789, and as codified in 28 U.S.C. [section] 1350, it states: "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." (4) In 1980 the seminal Second Circuit decision in Filartiga v. Pena-Irala breathed new life into the ATS and initiated a series of cases in which the lower courts applied Filartiga's principles to human rights claims arising under the law of nations (now known as customary international law). (5) These cases were affirmed, though to what extent is ambiguous, in the Supreme Court's 2004 decision: Sosa v. Alvarez-Machain. (6) Thus, Filartiga represented an important step in the realm of international human rights litigation. Its progeny represent an outlet through which plaintiffs, though aliens in this country, can use the federal judicial system to seek reprieve for human rights abuses committed against them abroad.

Most recently, a series of cases has been filed in district courts across the country alleging, inter alia, torture committed against plaintiffs in the People's Republic of China (PRC). (7) Under Filartiga and Sosa, it is clear that torture violates customary international law, and that, as such, torture is actionable under the jurisdiction of the ATS. (8) However, aside from the plaintiffs, defendants, and courts, the Executive Branch is a vital player in this litigation. The State Department has become involved in many of these cases, voicing its statements of interest and suggestions of immunity on behalf of the Chinese officials.

The question is, therefore, how much deference should the courts give the Executive Branch in ATS human rights litigation. The cases involving Chinese officials are particularly important due to the diplomatic dynamic between the United States and the PRC. The cases, thus, present an interesting backdrop against which to address this question. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Deference, Human Rights and the Federal Courts: The Role of the Executive in Alien Tort Statute Litigation
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Author Advanced search

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.