The Alien Tort Statute and the limits of individual accountability in international law.

• Author: Wallach, David

ABSTRACT

Under the original understanding of the AT S, as well as the modern construction set forth by the Supreme Court in Sosa v. Alvarez-Machain, ATS claims can be properly based only on the small number of norms for which international law recognizes personal accountability. Thus, when confronted with a putative ATS claim, courts should analyze whether the international norm on which the claim is based recognizes a potential for personal liability, rather than exclusive state liability.

International human rights' law does not carry a potential for personal liability. The language and structure of the major human rights conventions establish that they are intended to impose obligations and liabilities only on sovereign state entities. This is confirmed by the practice and holdings of the international human rights tribunals and committees charged with enforcing these conventions. It is further confirmed by the Restatement (Third) of Foreign Relations and the views of scholars.

Unlike international human rights law, international criminal law imposes individual accountability. However, the history of the development of international criminal law shows that states have been extremely careful in limiting the principle of individual accountability. The concept of crimes against humanity was developed precisely to define the circumstances in which internal human rights violations rise to the level of international crimes, thereby attracting personal accountability under international law. As such, it confirms that human rights violations that do not rise to the level of crimes against humanity remain within the exclusive jurisdiction of municipal law insofar as individual liability is concerned.

Thus, courts should recognize common law causes of action under the ATS only for claims predicated on violations of international criminal law, not international human rights law. This would go a long way towards bringing ATS litigation in line with international law by limiting the United States' exercise of extraterritorial prescriptive jurisdiction to the small number of cases in which universal jurisdiction is permitted. It also would bring the modern ATS in line with its original purpose. The ATS was not intended to provide tort remedies for all violations of the law of nations as it existed in 1789, but only for conduct defined as criminal by the law of nations. Further, the ATS was intended to reach such conduct, not because it was particularly egregious, but because it "threaten[ed] serious consequences in international affairs." Violations of international criminal law such as crimes against humanity and genocide threaten serious consequences for international affairs. Isolated human rights abuses do not.

There is no doubt that many ATS advocates will find it highly objectionable to limit ATS causes of action to violations of international criminal law. It is important to keep in mind, however, that restricting the scope of the ATS does not mean that lesser abuses will not be cognizable in United States courts. It means only that, in general, such claims will be governed by rules of decision derived from municipal law in accordance with normal conflict o flaw principles.

1. INTRODUCTION II. PERSONAL LIABILITY, INTERNATIONAL LAW, AND THE ATS A. The Emergence of the ATS B. Under Sosa, ATS Claims Can Be Properly Based Only on Norms for which International Law Recognizes a Potential for Personal Liability C. Limiting Actionable Norms to those which Impose Personal Liability is also Necessary to Avoid Violating International Law III. INTERNATIONAL LAW DOES NOT NORMALLY IMPOSE DUTIES THAT CAN BE VIOLATED BY INDIVIDUALS IV. THE PRINCIPLE OF INDIVIDUAL ACCOUNTABILITY DOES NOT APPLY TO INTERNATIONAL HUMAN RIGHTS LAW A. The Language and Structure of Conventional Human Rights Law Establishes that it Imposes Obligations Only on States 1. Generally Applicable Human Rights Conventions 2. Regional Human Rights Conventions B. International Tribunals and Interpretive Bodies Confirm that Human Rights Norms Impose Obligations and Liabilities Only on States C. With the Exception of the United States, There is No State Practice Imposing Individual Accountability for Violations of Human Rights Norms D. Most Publicists Agree that International Human Rights Norms Do Not Impose Individual Accountability V. THE DEVELOPMENT OF THE NORM AGAINST CRIMES AGAINST HUMANITY PROVES THAT INDIVIDUAL ACCOUNTABILITY DOES NOT ATTACH TO ISOLATED VIOLATIONS OF HUMAN RIGHTS NORMS A. The Creation of the Norm Against "Crimes Against Humanity" by the Nuremberg Tribunal B. The Evolving International Element of CAH C. The Principle of Individual Accountability Created by the Nuremberg Revolution Applies Only to International Criminal Law VI. THERE IS GOOD REASON NOT TO EXTEND THE PRINCIPLE OF INDIVIDUAL ACCOUNTABILITY TO NORMS OF HUMAN RIGHTS VII. CONCLUSION I. INTRODUCTION

   Almost thirty years ago, federal courts in the United States began the remarkable enterprise of creating tort causes of action to allow private plaintiffs to seek damages for violations of international norms. They did this under the aegis of the Alien Tort Statute (ATS), (1) an obscure and little used provision of the United States Judiciary Act of 1789. (2) The ATS has been interpreted as providing federal courts with residual common law power to create tort causes of action based on international norms that are well established, universally recognized and readily definable. (3)

   Most international norms, however, are concerned with the obligations and liabilities of states, which are generally immune from suit in United States' courts pursuant to sovereign immunity. (4) No court has addressed the relevance of this characteristic of international law to the determination of whether a given international norm will support a cause of action under the ATS. Rather, they have elided the issue by focusing on the distinction between international norms that apply to private parties and those that apply only to "state actors." (5) Courts do not use the term "state actor" to denote states, however, but rather persons acting "under color of law." (6) This distinction is not without relevance as a small number of international norms impose obligations not only on states, but also on persons acting in an official capacity. However, a far larger number of international norms impose obligations and liabilities only on the corporate state entity to the exclusion of all other persons. (7) Because courts have failed to recognize this fact, they have also failed to analyze whether the international norms on which proposed ATS claims are based carry a potential for personal liability, or impose liability only on states. Under the original understanding of the ATS as well as the modern interpretation adopted by the Supreme Court, only norms for which international law recognizes a potential for personal liability can form the basis for a private tort claim in federal court.

   This Article shows that, in general, international human rights law imposes obligations and liabilities only on states, not on private parties or individual government officials. I use the term "human rights law" to refer to the body of law arising from multilateral declarations and conventions which proclaim and protect individual rights. (8) The genesis of this body of law is found in the United Nations Charter. (9) The Charter obliges the nations of the world to strive towards the promotion of human rights. (10) However, it does not define those rights or create any institutions to ensure their observance. (11) As a result, in the sixty years since the Charter came into force, a series of multilateral conventions have been entered to fill these gaps. Some of these conventions are regional (12) and some are worldwide; (13) some are comprehensive in scope, (14) and others address specific issues, such as racial discrimination (15) or the rights of children. (16) However, what all of these conventions have in common is a focus on the rights of individuals as human beings and the obligations of states to respect and protect those rights. (17)

   A debate exists over whether international human rights law exists solely as conventional law, (18) or whether it has also become part of customary law ("CIL"). (19) This Article does not take a position with respect to that debate. Instead, it assumes that international human rights law is part of both conventional and customary law. It examines the major human rights conventions as well as the sources of customary international law to determine whether human rights norms carry a potential for individual liability under international law. By their terms, human rights conventions impose obligations and liabilities only on states, not on individuals, regardless of whether they are government officials or private parties. The sources of customary international law are in accord. "Customary international law results from a general and consistent practice of states followed by them from a sense of legal obligation." (20) Apart from the United States' anomalous example, no state practice exists of imposing individual liability for violations of international human rights norms. (21) Secondary evidence of customary law can be found in the opinions of international and national tribunals and in the writings of scholars. (22) These sources confirm that international law does not impose individual accountability for violations of international human rights law.

   This Article distinguishes international human rights law from international criminal law. These two bodies of law are similar in many respects and overlap at times. However, they are historically and conceptually separate and distinct. (23) International criminal law is founded, not on the United Nations Charter, but from the precedent established by the International Military Tribunal created by the Allied powers to try the Nazi...