Congress Should Allow US Courts to Hear International Human Rights Claims
Courts were hearing these claims throughout the 1980's and 1990's; the Supreme Court then neutered the law
Soon after the Constitution was ratified, Congress sat down to write the rules for the newly created federal courts. Congress created jurisdiction for such things as suits between citizens of different states and trial and appellate court jurisdiction, and rules for the composition of the Supreme Court (still an issue in the present). Congress also included a statute to ensure that federal courts would have jurisdiction to hear a claim for damages by an alien (in the language of the statute, i.e., a noncitizen) for a violation of international law (which the framers called “the law of nations” both in the Constitution and this statute). This statute remains on the books and is now codified in 28 U.S.C. Section 1350, reading “[t]he 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”.
It’s a simple statute- you need an alien plaintiff, a tort (i.e., a civil wrong that gives rise to a lawsuit, such as negligence or battery or defamation), and a violation of the law of nations or a treaty. If you have those three things present, Section 1350 says you can bring your claim in a federal district court.
And this is how the federal courts interpreted this law, consistent with its plain language, up until the early years of the 21st century. Noncitizens who had claims against defendants who injured them in violation of international law could sue them in the United States, so long as a court in the United States had personal jurisdiction over the defendant. So, in Abebe-Jira v. Negewo, three victims of a brutal Ethiopian dictatorship who moved to Atlanta as refugees then ran into the man who tortured them, who had also moved there. They sued them under Section 1350 and won. They were aliens, the torture constituted a tort (battery), and torture violates fundamental norms of international law.
The Supreme Court, controlled by conservatives, hated this law. They don’t like the idea of US courts getting involved in international disputes to begin with (for one thing, that implies that other countries might render effective judgments, and even potentially criminal prosecutions, against US citizens for human rights violations as well). And they especially didn’t like it when plaintiffs’ lawyers (full disclosure, myself included) used Section 1350 to go after American corporations who were complicit in overseas human rights abuses. So, the Supreme Court decided to neuter the statute, which they did in a series of cases.
First, they strictly limited the type of international law violations the statute covered. I was on the brief for the plaintiff, Humberto Alvarez-Machain, in this case. Dr. Alvarez had been kidnapped in Mexico by Mexican nationals acting at the behest of the US DEA, and taken to stand trial in the United States for the infamous murder of a DEA agent. Unfortunately for the US government, Dr. Alvarez was innocent, and the lack of evidence of his guilt was so obvious that the federal judge sitting on the case did not even allow the government to bring their claims before a jury. Dr. Alvarez went back to Guadalajara and sued everyone involved in his kidnapping. Eventually, he received $25,000 in damages from Francisco Sosa, who led the kidnapping operation.
The Supreme Court reversed and held that since Section 1350 was originally intended to reach the sorts of international law violations that occurred in 1789, such as piracy, assaults on ambassadors, and violations of safe passage rules, the statute could not extend beyond those situations and perhaps something directly analogous to them. Accordingly, even though international law has prohibited transborder abductions such as happened to Dr. Alvarez for decades, he could not recover any money. He was an alien suing for a tort in violation of the law of nations, but that didn’t matter to the Court.
Then, the Supreme Court in a case called Kiobel held that Section 1350 did not apply extraterritorially. This holding was particularly ridiculous. Remember, in rejecting Dr. Alvarez’s claim, the Court had held that only things analogous to piracy were actionable. And yet now, the Court was saying that piracy itself wasn’t actionable, as it happens outside the United States’ borders. And, of course, never mind that the first Congress surely knew that most claims by aliens for torts in violation of the law of nations would surely arise overseas. The Supreme Court didn’t care. They hated the statute.
Finally, three years ago in the Jesner case, the Court held that even though the statute contains no provisions limiting claims to individual defendants, foreign corporations could not be sued under the statute.
As a result of these decisions, there is little left of Section 1350. Despite the fact that absolutely no harm was done from the US courts being a haven for a few international human rights claims against defendants who found themselves within US jurisdiction, the Supreme Court shut it down, and did so with no regard for the actual text of the statute. As Justice Thurgood Marshall said in a different context, power, not reason, was the currency of the Court’s decisionmaking.
But because these are all statutory holdings, Congress can reverse them all. And it should. Congress should restore the promise of Section 1350 and tell the courts that they are open to hear claims by alien plaintiffs who suffer deprivations of their internationally protected human rights. By doing so, some plaintiffs will be able to recover compensation or simply have a court recognize that in fact their rights were violated, and the US can establish itself as a better citizen of the world (a serious issue given our foreign policy has lacked moral legitimacy and is seen as hypocritical). And wrongdoers, of course, can be held to account- including corporations who knowingly profit off human rights abuses. It’s the right thing to do.