Alien tort act, an unexplored concept in Federal Law.

28. U.S.C § 1350, allows a private cause of action by an alien for a tort only, committed in violation of the law of nation of a treaty of the United States. It is a concept of the law that is not applied in every day law.  The statute of limitation for a cause of action under the alien tort act is ten years and allows an “alien” to file a suit in a the U.S. federal district court citing violation of international law.

Section 1350 grants a cause of action and the section “creates a cause of action for violations of specific, universal and obligatory international human rights standards”), cert. denied, — U.S. —-, 115 S.Ct. 934, 130 L.Ed.2d 879 (1995); Xuncax v. Gramajo, 886 F.Supp. 162, 179 (D.Mass.1995) (“Sec. 1350 yields both a jurisdictional grant and a private right to sue for tortious violations of international law … without recourse to other law as a source of the cause of action.”); Paul v. Avril, 812 F.Supp. 207, 212 (S.D.Fla.1993) (“The plain language of the statute and the use of the words ‘committed in violation’ strongly implies that a well plead tort[,] if committed in violation of the law of nations, would be sufficient [to give rise to a cause of action].”); Forti v. Suarez-Mason, 672 F.Supp. 1531, 1539 (N.D.Cal.1987) (same), on reconsideration on other grounds, 694 F.Supp. 707 (N.D.Cal.1988).

This particular law does have relevance for any parent and their children who have citizenship of another country; in particular it allows a remedy to sue a court who is classified as a state actor for the purposes of international law.

CA governmental code § 810.2 defines employee as an officer, Judicial officer as defined in § 327 of the Elections code, (where Judicial officer means any Justice of the Supreme Court, Justice of a court of appeal or a judge of the superior court), employee or servant whether or not compensated.

Any Court is classified as a state actor by UN General Assembly Resolution 56/83 which defines the Responsibility of States for Internationally Wrongful Acts under articles 4, 5 namely:

1. The conduct of any State organ shall be considered an act of that State under international law, whether the organ exercises legislative, executive, judicial or any other functions, whatever position it holds in the organization of the State, and whatever its character as an organ of the central Government or of a territorial unit of the State.

2. An organ includes any person or entity which has that status in accordance with the internal law of the State.

Under Article 5:

The conduct of persons or entities exercising elements of governmental authority as defined in article 4 (1) shall be considered an act of the State under international law, where the person or entity is acting in that capacity in that particular instance.

Judicial action qualifies as state action for procedural due process purposes. Shelley v. Kraemer, 334 U.S. 1, 14, 68 S. Ct. 836, 92 Led. 1161 (1948) and under article 5 cited above the conduct of a mediator and evaluator who was exercising elements of governmental authority shall be considered an act of the State.

The ATCA is unique in that it allows for aliens, regardless of where they are domiciled, to bring actions for torts in U.S. courts, regardless of where the tort occurred and the ATCA does not provide for immunity defense claims of government, (state), employees, Filártiga v. Peña-Irala, 630 F.2d 876 (2nd Cir. 1980).

On its face, section 1350 requires the district courts to hear claims “by an alien for a tort only, committed in violation of the law of nations.” 28 U.S.C.A. Sec. 1350 (West 1993) (emphasis added).(“[The] statute confers federal subject-matter jurisdiction when the following three conditions are satisfied: (1) an alien sues (2) for a tort (3) committed in violation of the law of nations (i.e., international law).”); Marcos, 25 F.3d at 1475.

‘[N]othing more than a violation of the law of nations is required to invoke section 1350’, (quoting Tel-Oren, 726 F.2d at 779 (Edwards, J., concurring)); Xuncax, 886 F.Supp. at 180 (“All that the statute requires is that an alien plaintiff allege that a ‘tort’ was committed ‘in violation’ of international law or treaty of the United States.”). Moreover, the “committed in violation” language of the statute suggests that Congress did not intend to require an alien plaintiff to invoke a separate enabling statute as a precondition to relief under the Alien Tort Claims Act. See, e.g., Handel v. Artukovic, 601 F.Supp. 1421, 1427 (C.D.Cal.1985) (“[T]he ‘violation’ language of section 1350 may be interpreted as explicitly granting a cause of action….”); Paul, 812 F.Supp. at 212 (same); Forti, 672 F.Supp. at 1539 (same). This holding is endorsed in the recently enacted Torture Victim Protection Act of 1991 (TVPA), Pub.L. No. 102-256, 106 Stat. 73. In enacting the TVPA, Congress endorsed the Filartiga line of cases: The TVPA would establish an unambiguous and modern basis for a cause of action that has been successfully maintained under an existing law, section 1350 of the Judiciary Act of 1789 (the Alien Tort Claims Act), which permits Federal district courts to hear claims by aliens for torts committed “in violation of the law of nations.” H.R.Rep. No. 367, 102d Cong., 2d Sess. 3, reprinted in 1992 .S.C.C.A.N. 84, 86 (emphasis added). Congress, therefore, has recognized that the Alien Tort Claims Act confers both a forum and a private right of action to aliens alleging a violation of international law.

The Alien Tort Claims Act establishes a federal forum where courts may fashion domestic common law remedies to give effect to violations of customary international law by government officials or state actors, see, e.g., Kadic, 70 F.3d at 236; Filártiga v. Peña-Irala, 630 F.2d 876 (2d Cir. 1980); Xuncax, 886 F.Supp. at 179-83, which applies in this case.

Judicial opinions that have had occasion to impart meaning to § 1350 have not reached a consensus regarding the statute’s import. A majority of courts, interpreting the statute broadly, have held that if an alien plaintiff can establish that the abuses allegedly inflicted upon his/her constitute violations of international law, § 1350 grants both a federal private cause of action as well as a federal forum in which to assert the claim., see, e.g., Marcos Estate II, 25 F.3d at 1475 (9th Cir.1994) (§ 1350 “creates a cause of action for violations of specific, universal and obligatory human rights standards,”); Amerada Hess Shipping Corp. v. Argentine Republic, 830 F.2d 421, 424-25 (2d Cir.1987), rev’d on other grounds, 488 U.S. 428, 109 S.Ct. 683, 102 L.Ed.2d 818 (1989) Filartiga v. Pena-Irala, 630 F.2d 876, 887 (2d Cir.1980); Paul v. Avril, 812 F.Supp. 207, 212 (S.D.Fla.1993); Forti v. Suarez-Mason, 672 F.Supp. 1531, 1539 (N.D.Cal.1987), on reconsideration on other grounds, 694 F.Supp. 707 (N.D.Cal.1988). The Ninth Circuit has concluded that § 1350 plaintiffs may look to municipal law as a source of substantive law. See Marcos Estate I, 978 F.2d at 503 (9th Cir.1992), cert. denied, 508 U.S. 972, 113 S.Ct. 2960, 125 L.Ed.2d 661 (1993).

The federal court has already recognized that federal government officials are not immune to tort claims and that the state waives its immunity if they don’t adhere to legislative rules and procedures designed to protect the public, Hollingshead v. United States, 85-2 USTC 9772 (5th Cir. 1985). The same analogy applies to state employees under the alien tort act which specifically allows a cause of actions against state employees, who do not follow the mandatory legislative procedures and violate constitutional safeguards.

In a similar manner the federal court has already recognized that the Alien tort act allows for reciprocal action notably in the “Apartheid cases”, where South African plaintiffs’ sued multinational defendants that were located in the United States in part due also to the actions perpetrated upon U.S soil, Ntsebeza v. Daimler AG., 617 F. Supp. 2d.228. 2009. U.S. Dist. Lexis. 34572; Khulumani v. Barclays Nat. 1. Bank. Ltd. 504. F.3d. 254 (2nd Circ. 2009).

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By NewsViews Posted in Law, News

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