In the intricate web of international law, the Alien Tort Act (ATCA) of 1789 stands as a cornerstone in the United States’ legal landscape, offering a unique window into the complexities of cross-border legal disputes. This landmark legislation, originally crafted in the nascent stages of American history, has evolved to become a pivotal tool for addressing human rights violations and corporate accountability on a global scale.
As I delve into the intricate legal tapestry woven by ATCA, from the groundbreaking Filártiga v. Pena Irala case to the recent, controversial Jesner v. Arab Bank decision, I uncover the profound implications of this Act in shaping international law and its influence on foreign relations. Join me on a journey through the legal history and contemporary debates surrounding ATCA, a journey that reveals as much about international justice as it does about the evolving nature of the law itself.
What is the Alien Tort Act (ATCA)?
The USA, which has not yet proved itself in the process of its establishment and whose foreign relations are in a very sensitive state, required a law covering the unfair acts committed by foreigners against foreigners in its territory, and in 1789, Alien Tort Claims Act. law enacted.
Joseph Jesner is one of about 6,000 foreign nationals allegedly injured or killed by terrorist attacks abroad. They filed an ATCA lawsuit against the Arab Bank, a Jordan-based international financial institution.
However, the court ruled that foreigners could not file a lawsuit against foreign companies under the ATCA law with 5-4 votes. In order to assess whether this decision of the Supreme Court is correct or not, it is necessary to look at precedent cases that fall under or fail the ATCA law.
You can learn more about the ATCA on Wikipedia.
The Legal History of Alien Tort Claims Act 1789
It is necessary to examine ATCA cases under two headings. As the first heading, the cases opened by the foreigners against foreigners in terms of events that took place outside the US territory. First example of this heading is “Filartiga v. Pena Irala” lawsuit. Secondly, the cases opened against the citizens of the USA can be given as an example. The responsibilities of multinational and transnational companies within the scope of ATCA are also examined under the second title.
Filartiga v. Pena Irala Case
From 1789 to 1980, only two courts dealt with ATCA cases. A new era started in 1980 with the “Filártiga / Peña-Irala” case and became a turning point for the scope of this law. As a result of this file, which was resolved on June 30, 1980, it was reported that the torture act could be accepted as an unfair act violating the law of nations under the ATCA provision. It was stated that the law of nations should not be understood only as the rules of the 18th century in terms of the ATCA provision adopted in 1789. In other words, while determining whether an unfair act violates the law of nations under ATCA, the law of nations from the time of the lawsuit will be taken as basis.
In the original text of the ATCA verdict, the following statement was used precisely when referring to unfair acts violating the law of nations: “Any civil action by an alien for a tort only, committed in violation of the law of nations.”. Or we can say that as, a file must be in violation of international customary law in order to be based on the ATCA law provision.
Sosa v. Alvarez-Machain Case
With the result of the court of “Filartiga v. Pena Irala“, a new debate has begun. “Which acts violate the law of nations under the ATCA provision?” The decision that finalized this debate was the US Supreme Court’s “Sosa v. Alvarez-Machain” decision in 2004.
In this case, a Mexican citizen was charged with killing the US DEA agent in Mexico. However, in Mexico, he was left free due to lack of evidence. Then the DEA hired several Mexican people to kidnap this Mexican murderer to the United States.
Then, Mexican murderer sued the U.S. government under the ATCA. But, the Supreme Court ruled that ATCA was only valid for violations of “specific, universal and mandatory” international norms and determined that general prohibitions on arbitrary arrest and detention do not meet this standard.
In other words, ATCA gave courts the jurisdiction for violations such as piracy and the security of ambassadors, accepted by the civilized world only in the eighteenth century. On the FTCA claim, the Court ruled that the arrest had taken place outside the United States and so was exempted from the Act. The Court rejected Alvarez-Machain’s argument that the exemption should not apply because the arrest had been planned in the United States.
Kiobel v. Royal Dutch Petroleum Case
In another case, it is the case opened by Nigerians who have been harmed by human rights violations committed by Royal/Dutch oil companies in Nigeria. The court dismissed the case in 1998 on the grounds of “forum non convenience” but decided to file the case in the appeal trial. Even if the accusations were tried to be lowered with the objections of the defendants, the trial continued, and after the process, which continued until June 2009, the parties agreed outside the court for a compensation of $15.5 million, thus the judicial process ended. In another case opened in the US courts within the scope of the ATCA verdict due to the human rights violations committed by “Royal/Dutch oil companies” in Nigeria.
The plaintiffs in “Kiobel” were citizens of Nigeria who claimed that Dutch, British, and Nigerian oil-exploration corporations aided and abetted the Nigerian government during the 1990s in committing violations of customary international law.
On September 17, 2010, the U.S. Court of Appeals for the Second Circuit held that corporations cannot be held liable for violations of customary international law. In 2013 the U.S. Supreme Court ruled that the courts did not have jurisdiction rights over the events that occurred outside the US borders.
The U.S. Supreme Court did not unconditionally exclude acts carried out across the border with the judgment of “Kiobel v. Royal Dutch Petroleum“, but ruled that, under certain circumstances, jurisdiction could be exercised. Accordingly, only important acts affecting the US territory may be within the jurisdiction of the courts. As can be seen, the “Kiobel” decision neither removed all of the cross-border acts from the jurisdiction of the US courts nor provided clarity about which acts carried out across the border were jurisdicted by the US courts.
My Opinion on Jesner v. Arab Bank Case
As a result, when we create a scheme for ATCA by looking at precedent decisions in the past years, it would be correct to examine the “Jesner v. Arap Bank” case as the responsibilities of multinational and transnational companies within the scope of ATCA were raised within the second title. For a file to be included in the scope of ATCA, it has been taken into consideration in the previous cases that it violates international human rights, the incident is within the territory of the USA or that it will concern the foreign relations of the USA.
In addition, it has been added that cross-border acts can be the subject of trial so that the US lands do not become a port of refuge for criminals who are common enemies of humanity. “Jesner v. Arab Bank” file does not meet any of the conditions mentioned above. For these reasons, I think it would not be correct to evaluate the “Jesner v. Arab Bank” file within the scope of ATCA. Because when we look at the history of ATCA, the aim of entering into force at first; We see that the case should not disrupt the US’s foreign relations, and that the case should be on the territory of the USA or that the incident should concern the United States, and the plaintiffs should demonstrate with concrete evidence that the crimes allegedly committed by the defendants have violated international human rights.
Although the “Kiobel v. Royal Dutch Petroleum” case has been filed, the U.S. Supreme Court has ruled that such cases of human rights violation are not places for judging by U.S. courts and should not considered these cases to be covered by ATCA.
Bottom line is the “Jesner v. Arap Bank” case, it should not be covered by ATCA and I can say that U.S. Supreme Court made the best decision for the USA under the Alien Tort Claims Act 1789.
