Taking Legal Pluralism Seriously: The Alien Tort Claims Act and the Role of International Law Before U.S. Federal Courts

Introduction

The issue of pluralistic deficit in decisionmaking processes and in the judicial process covers a wide range of questions, relating pluralism to contexts both within and outside the state level. Legal pluralism, in fact, is a general phenomenon linked to the coexistence of different systems of rules, concepts, and values,¹ which has always existed, but whose relevance has surely increased in recent decades, when multifold relationships and interactions increasingly challenge the possibility of isolating law as a merely national element.

The analysis of the judicial application of the Alien Tort Claims Act (ATCA)² by U.S. federal courts is a specific instance where several important issues concerning the relevance and scope of legal pluralism in the international context arise. The decision by the Supreme Court in Sosa v. Alvarez-Machain³ in June 2004 is an important step in a field that has been rapidly expanding in the last twenty years, after the groundbreaking decision of the Court of Appeals for the Second Circuit in Filártiga v. Peña-Irala,⁴ and can be usefully taken as a starting point for the discussion of the relevance of legal pluralism in U.S. and international law. Although the central feature of Sosa, and the line of cases decided by federal courts prior to it, is the use of the ATCA as a means to protect international human rights, its potential scope is wider because the interplay of international law with U.S. domestic law envisaged by the ATCA is not confined to a specific subject matter.

I. The Alien Tort Claims Act: Meaning And Context

In order to understand the debate, it is useful to analyze briefly the characteristics of the Act.⁵ The ATCA was passed by the first Congress in 1879, and its short and laconic text has been a source of wide discussion and disagreement. The Act reads: "The 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." The difficulty in defining the scope of application of the Act is that for over 170 years it remained virtually dead letter.⁶

The historical context in which the Act was enacted is important in understanding its significance. During the period of confederation, the Continental Congress was unable to punish infractions of treaties and the law of nations, and concerns about this issue were raised during the Constitutional Convention. Consequently, the Framers vested the Supreme Court with original jurisdiction over "all Cases affecting Ambassadors, other public ministers and Consuls,"⁷ and the first Congress followed with the Judiciary Act, of which the ATCA was a part. Although there is disagreement about what the original intent of Congress was, most lawyers agree that at that time, the law of nations was composed of general norms governing the behavior of national states among themselves, and judge-made rules relating to the conduct of individuals outside domestic boundaries, as well as some rules where aspects related to individuals and state relationships overlapped. Blackstone, for instance, mentions three in his Commentaries: "Violation of safe-conducts," "Infringement of the rights of ambassadors," and "Piracy."⁸ It is therefore likely that the first Congress, when enacting the ATCA, intended to give jurisdiction to federal courts for a limited number of important violations of the law of nations.

The peculiarity of the ATCA is further evident if one compares it with other foreign statutes that grant universal jurisdiction over violations of international law.⁹ These statutes, which are more recent than the ATCA, refer to gross violations of human rights that clearly belong to jus cogens, and provide for criminal sanctions. In contrast, the ATCA is very general in the formulation of the violations that can determine liability, and limits sanctions to money damages.¹⁰

II. Filártiga And The Use Of The Atca In Federal Case Law For The Vindication Of Human Rights

In 1980, the U.S. Court of...