Following a hurricane-related service outage, I’m back online. Surprisingly, a weekend in which the most of the Northeast and Mid-Atlantic was similarly holed up did not produce any news on the Alien Tort Statute/Alien Tort Claims Act.
That is all.
From the abstract (full article PDF):
This article explores the Court’s reasoning and the ramifications of the decision, highlighting the ways in which the Kiobel judgment departs from both Supreme Court and Second Circuit precedent. The authors take to task the critical failure of the majority in Kiobel to distinguish between the requirements of legal responsibility at international law and that which is necessary to invoke ATS jurisdiction in the US District Courts.
The conclusion highlights the fact that Kiobel and ATCA/ATS exist at a very politically-charged intersection of business, law and politics:
Concerns about comity and interfering with the political branches of
government are all legitimate concerns, but they can be addressed within the scope of judicial discretion to hear a common law cause of action under the ATS, or considered within the scope of recognised doctrines such as the political question doctrine or forum non conveniens. But to take such political policy considerations such as the burden of ATS suits on foreign corporations and the risk of ‘judicial imperialism’, and cloak them in an analysis of whether there is a norm of corporate liability at customary international law, is to engage in the kind of political decision making that Chief Judge Jacobs himself counsels should be left to the political branches of government … To eviscerate even this extent of jurisdictional reach on the policy grounds that it is an encumbrance on corporations, courts and government alike, and by way of legal argument that is fundamentally flawed, is not a path the Supreme Court should countenance.
From the abstract (full article PDF):
The ATS authorized federal court jurisdiction over claims by foreign citizens against United States citizens for intentional torts to person or personal property. At the time, both the commission of—and the failure to redress—such “torts” violated “the law of nations.” The statute thus employed these terms to create a self-executing means for the United States to avoid military reprisals for the misconduct of its citizens. Neither the ATS nor Article III, however, authorized federal court jurisdiction over tort claims between aliens. Indeed, federal court adjudication of at least one subset of such claims—alien–alien claims for acts occurring in another nation’s territory—would have contradicted the statute’s purpose by putting the United States at risk of foreign conflict. Despite suggestions that the true import of the ATS may never be recovered, the original meaning of the statute appears relatively clear in historical context: the ATS limited federal court jurisdiction to suits by aliens against United States citizens but broadly encompassed any intentional tort to an alien’s person or personal property.
via Conflictoflaws.net.
For other scholarly articles on ATCA/ATS, visit ATCAblog’s Selected Academic Literature page.
1984 Anti-Sikh riots
From sikhsiyasat.net, news of an Alien Tort Claims Act/Torture Victim Protection Act matter in the Southern District of New York:
On August 12, 2011 Sikhs for Justice (SFJ) filed response to Kamal Nath’s efforts to seek immunity in the Sikh Genocide Case pending before US Federal Court against Nath’s role in attack on Gurudwara Rakab Ganj in November 1984. The Plaintiffs’ response states that Nath’s claim to “special mission diplomatic immunity” is baseless because he has no support from US Department of State and Nath came to attend conferences organized by US Indian Business Council in April 2010 when he was served with summons.
[...]
The case against Nath has been filed by “Sikhs For Justice” (SFJ) a US based human rights group along with several Sikh individuals who witnessed and survived attacks in November 1984. The class action lawsuit (SFJ v. Nath SDNY (10 CV 2940)) has been filed under Alien Tort Claims Act (ATCA) and Torture Victim Protection Act (TVPA).The summons against Kamal Nath were issued on April 06, 2010 in the law suit filed under Alien Tort Claims Act asking the US Court to grant compensatory and punitive damages for Kamal Nath’s role in leading an armed mob which attacked Gurdawara Rakab Ganj Delhi on November 01, 1984 in which many Sikhs were burnt alive.
Sikhs for Justice’s website is here. More on Nath from Wikipedia.
Christa Culver of SCOTUSblog deems Torture Victims Protection Act case Bowoto v. Chevron a “petition to watch.”
In a paralell to the Kiobel/Flomo split on whether corporations can be sued under ATCA/ATS, the 9th Circuit’s decision in Bowoto holds that corporations can not be sued under the TVPA. Judge Schroeder writes:
We agree with the district court that Congress’s use of the word ‘‘individual’’ throughout the statute indicates that it did not intend for the TVPA to apply to corporations. Indeed, Congress has directed courts to presume the word ‘‘individual’’ in a statute refers to natural persons and not corporations.
Bowoto v. Chevron, 621 F.3d 1116, 1126 (9th Cir. 2010), citing 28 U.S.C. § 1350, note § 2(a).