Fa ilure to Stat e a Claim
| Pages | 57-58 |
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international law update Volume 17, July–September 2011
© 2012 Transnational Law Associates, LLC. All rights reserved. ISSN 1089-5450, ISSN 1943-1287 (on-line) | www.internationallawupdate.com
FAILURE TO
STATE A CLAIM
E C
’
A T S
P
D S B
Plaintis are relatives of Bolivian citizens
killed in 2003 during a time of civil unrest and
political upheaval. During this time, military and
police forces were confronted by large numbers
of protestors who were upset by the swift change
in government. e protestors began blockades
that obstructed major highways and prevented
travelers from moving throughout the country.
e protestors also threatened access to gas and
water in the capital of Bolivia, La Paz. After two
or so months, the police and military were able
to restore order, but many people were killed an
injured during the process. e President, Gonzalo
Daniel Sánchez de Lozada Sánchez Bustamante,
and defense secretary, José Carlos Sánchez Berzaín,
then resigned and left the country.
e Plaintis, who are Bolivian citizens and
residents, led suit against the Defendants under
the Alien Tort Statute (“ATS”) in the federal district
court, asserting violations of international law by
committing extrajudicial killings, perpetrating
crimes against humanity, and violating rights of
life, liberty, security of person, and freedom of
assembly and association. ough the Plaintis do
not allege that the Defendants actually committed
the killings or injured anyone, they do believe that
the Defendants are to be held personally responsible
for the acts of the military and police.
e Defendants moved to dismiss by asserting
that the complaint raised a political question, they
were immune from the suit under common law
and the Foreign Sovereign Immunities Act, and
the Plaintis failed to state a claim under the ATS,
or Florida and Maryland law. e district court
granted in part and denied in part the motion.
e Defendants now seek an appeal of the political
question issue and the failure to state a claim issue.
e United States Court of Appeals for the
Eleventh Circuit reverses and remands, concluding
that the Plaintis failed to state a plausible claim
for relief against the Defendants under the ATS.
First, the Court looks to the applicability of the
ATS in a context such as this. “e ATS is no
license for judicial innovation. Just the opposite,
the federal courts must act as vigilant doorkeepers
and exercise great caution when deciding either to
recognize new causes of action under the ATS or to
broaden existing causes of action.” 654 F.3d 1152.
With regard to violations of international law, the
Court states that the specic oense must be based
on present day and widely accepted interpretations
of international law. erefore, high levels of
generality will not suce. “To determine whether
the applicable international law is suciently
denite, we look to the context of the case before us
and ask whether established international law had
already dened defendants’ conduct as wrongful in
that specic context.” 654 F.3d 1152.
“We do not look at these ATS cases from a
moral perspective, but from a legal one. We do
not decide what constitutes desirable government
practices. We know and worry about the foreign
policy implications of civil actions in federal
courts against the leaders (even the former ones)
of nations. And we accept that we must exercise
particular caution when considering a claim that a
former head of state acted unlawfully in governing
his country’s own citizens.” 654 F.3d 1152.
Since the Court notes that the Supreme
Court instructs federal courts to exercise extreme
caution when deciding ATS claims, the Court
then proceeds to determine the requirements for
properly stating a claim for relief under the ATS.
ere are three requirements: the plainti must be
an alien, must be suing for a tort, and the tort must
have been committed in violation of the law of
nations. In order to avoid dismissal, the complaint
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