by Jeffrey Davis. New York: Cambridge University Press, 2008. 320pp. Hardback. $85.00/£45.00. ISBN: 9780521878173. Paperback. $29.99/£17.99. ISBN: 9780521702409. eBook format. $24.00. ISBN: 9780511406089.
Reviewed by Srini Sitaraman, Government and International Relations, Clark University. Email: ssitaraman [at] clarku.edu.
JUSTICE ACROSS BORDERS, as the title indicates, is an in-depth and fascinating examination of human rights litigation in American courts using the Alien Tort Statute (ATS) or Alien Tort Claims Act (ACTA). Professor Jeffrey Davis superbly demonstrates how the obscure provision of the Judiciary Act of 1789, also known as the Alien Tort Statute (ATS), has given the U.S. federal courts jurisdiction over civil actions pursued by aliens for violations of jus cogens international law outside the territorial jurisdiction of the American legal system. This study documents how ATS has been effectively wielded by victims of human rights violations and NGO activists in U.S. federal courts “despite jurisdictional barriers, sovereignty issues, and evidentiary problems inherent in trying cases hundreds of miles from where the wrong occurred” (p.3). What is particularly striking about the ATS is that human rights cases, as Davis points out, have been rarely litigated in U.S courts, because the courts have traditionally ignored human rights principles, abjured international human rights law because of their nebulous or indefinite character, and the executive branch has aggressively intervened to preserve its supremacy over international affairs and human rights by asserting control over such matters. As a result, legal activists have not been successful in pursuing human rights claims in U.S. courts until the United States Court of Appeals, Second Circuit opened the door in 1979 when it decided to hear DOLLY M. E. FILARTIGA AND JOEL FILARTIGA v. AMERICO NORBERTO PEÑA-IRALA under the Alien Tort Statute.
In this ATS filing, the plaintiffs claimed that their family member, Dolly Filartiga’s 17-year old brother and Joel Filartiga’s son Joelito, were brutally tortured and murdered by Americo Norberto Peña-Irala, who was then the Inspector General in the Department of Investigation for the Police in Asunción, Paraguay. Despite initial misgivings regarding the jurisdictional propriety of the case, the Second Circuit found in favor of the plaintiffs, arguing that the defendant in his official capacity had engaged in acts that violated universally accepted human rights norms and that this case was within the jurisdiction of the U.S. courts, because both the defendant and the plaintiff, although aliens, were residing in U.S. territory, effectively bringing the case within the territorial jurisdiction of the United States, even though the said crimes occurred in a foreign territory. Since then, the ATS has become a powerful legal tool to challenge the atrocities committed by corrupt officials, heads of state, police and military personnel, and even private corporations in U.S. courts [*573] through civil proceedings. Successful application of the Alien Tort Statute raises weighty questions regarding state sovereignty, jurisdictional rights, sovereign and diplomatic immunity, and it also directly challenges the supremacy of the executive branch over foreign affairs. Importantly, as Davis argues, these issues invoke several compelling questions: are American federal courts gradually heading towards universal jurisdiction; are they refuting traditional notions of territorial sovereignty and national jurisdiction; how is the executive branch responding to the intervention by U.S. courts; and what are the strategies and motivations behind the ATS jurisprudence movement launched by human rights NGOs, and have they been successful? In addition, Davis also examines whether U.S. courts have been holding private corporations liable for human rights violations through ATS, and whether political ideology influences the outcome of the ATS cases. Analysis of these crosscutting issues is segmented into eight chapters.
The first chapter begins with an examination of the Nuremberg precedent and its implication for the universal jurisdiction movement, its impact on international law of human rights, and its effect on indirect and private liability, which is evident in ROMAGOZA v. GARCIA and FILÁRTIGA v. PEÑA-IRALA. The second chapter focuses on how competing forces employed ATS as a civil litigation tool to seek justice in U.S. courts for human rights violations that have occurred outside U.S. territory. The third chapter provides a vivid account of how NGOs have acted as human rights entrepreneurs and single-handedly led the charge in seeking justice for extraordinary human rights violations, such as mass murder, genocide, rape, extra-judicial killings, and torture in U.S. courts by relying on ATS. This chapter begins with the sensational murder of Archbishop Oscar Romero in El Salvador and assesses the related DOE v. SARAVIA case litigated through the tireless efforts of the Center for Justice and Accountability (CJA). The fourth chapter discusses the complex constitutional issues related to separation of powers issues that these ATS human rights cases engender when U.S. courts are forced to intrude into the foreign policy arena and pass judgments on matters that are within the exclusive policy domain of the executive branch. This chapter is especially captivating, because it investigates cases bought against the United States government and analyzes the level of executive branch involvement in ATS cases, from Jimmy Carter through the administration of George W. Bush. In addition, the fourth chapter also reviews in detail the foreign policy and the political question doctrine – i.e., what are the conditions under which the courts must cede ground to the executive branch and refuse to hear a case because it infringes on the ability of the United States government to conduct foreign policy. This is a consequential matter that the courts must address every time an ATS claim is filed, because the courts must be careful not to be perceived as interventionist.
The fifth chapter analyzes what happens when U.S. federal courts extend their jurisdictional reach beyond U.S borders, thus raising some very thorny legal questions, such as extraterritorial jurisdiction, forum non-conveniens, state sovereignty, official immunity, act of state doctrine, international comity, and statute of limitations. The sixth chapter [*574] concentrates on the impact of ATS litigation on private corporations for their alleged direct or indirect involvement in aiding and abetting, or even participating in, human rights violations. In the seventh chapter, the focus is on evaluating the overall findings using quantitative models to test for the impact of factors such as precedent and ideology; in addition, this chapter also examines the predictors of successful litigation in U.S. District Courts and Courts of Appeals, such as active NGO involvement in crafting legal cases. The eighth and the concluding chapter summarizes the previous chapters and describes how the ATS movement has evolved in the United States, how human rights norm entrepreneurs have marshaled legal mechanisms to their advantage to score critical victories and advance the cause of universal jurisdiction, and how they have sought accountability for perpetrators of egregious human rights atrocities.
One of the central questions at stake with regard to ATS claims are whether U.S. courts can exercise jurisdiction over acts that were committed by aliens under foreign authority outside U.S. territory. Analysis in this book categorically and unequivocally answers in the affirmative and provides strong evidence to suggest that the U.S. courts are indeed gradually edging towards the principle of universal jurisdiction, albeit with caution and bounded by certain conditions, such as the unanimous decision of the U.S. Supreme Court in SOSA v. ALVAREZ-MACHAIN. In the SOSA case, the Supreme Court argued that ATS does not give plaintiffs a new “private cause of action” and that it was “merely jurisdictional,” but it authorized the district courts to hear cases that were already found in U.S. federal common law. Particularly, in SOSA, the Supreme Court urged district courts to exercise judicial restraint when examining ATS claims, and stated that such violations should be “specific, universal, and obligatory” under international law (p.35). Universal jurisdiction under this instance means that every nation has the right and authority to pursue particular claims that are universally regarded to be extraordinarily offensive to the international community as a whole, and such offences are punishable under international law (p.38).
Two areas in which the courts have been highly reluctant to decide in favor of the plaintiffs are in instances when ATS claims are presented against sitting U.S. government officials or high ex-officials and against private corporations. In both instances, defendants have overwhelming rates of success. Among 24 District Court ATS cases against the United States government, only two have been found in favor of the plaintiffs, and of the 21 Court of Appeals cases, the defendant lost only one – TELESAT INC v. U.S (pp.96-97). According to Davis, ATS plaintiffs have routinely failed to win judgments against the U.S. government and its officials because they have been unable to overcome the formidable challenges of sovereign immunity defense, political question doctrine, and state secrets barrier. The courts have shown great deference to the United States government in cases that challenge human rights violations, as long as such violations are considered to be incidental to American foreign policy objectives (p.102). Similarly, plaintiffs have had great difficulty in pursuing cases against [*575] private corporations for aiding and abetting, because they have not been able to establish direct connections between instances of human rights violations and the involvement of private actors. In addition, Davis also observes that the considerable legal and financial resources and forceful lobbying of private corporations have proved to be a significant impediment in seeking ATS judgments against corporate defendants.
In the 200-year period since the proclamation of the ATS in 1789 and the FILARTIGA decision in 1980 only 21 cases were heard under the alien tort claims statute by two U.S. courts and only two judgments were made in favor of plaintiffs – one case involving a French captain who captured a Spanish slave ship in 1794, and another in 1961 involving a Lebanese national who petitioned against his ex-wife claiming that she had used forged passports to bring their children illegally to the United States (p.27). However, since FILÁRTIGA v. PEÑA-IRALA, 156 cases in District Courts and 77 cases in the Courts of Appeals have been litigated by relying on the alien tort claims law, demonstrating how far the U.S. courts have come in accepting the concept of universal jurisdiction in prosecuting human rights violations that have occurred abroad. Davis convincingly demonstrates that in instances where jus cogens human rights violations have transpired, U.S. courts have come to accept international law irrespective of the political leanings – conservative or liberal – of the courts and judges. He argues that political ideology has not significantly influenced judicial decisions regarding whether to hear ATS cases, nor has it affected the final outcome of the cases. The statistical tests in chapter seven further support this claim.
Another interesting finding that is consistent with the growing literature on international NGOs is the ability of human rights groups not only to influence the crafting of human rights norms and national policies (Keck and Sikkink 1998), but also to generate favorable outcomes when litigating for human rights. Lawyers at the Center for Constitutional Rights (CCR) launched the ATS human rights revolution in 1978 by assisting the Filartigas to craft a solid case, utilizing alien tort law to sue their Paraguayan torturer (p.54). Davis’ quantitative analysis reveals that cases in which NGOs represented plaintiffs “34 percent are more likely to win an ATS decision in the district courts and 41 percent more likely to prevail in the court of appeals” than those with other types of representation (p.75). NGOs have this positive impact on ATS litigation outcomes because they are determined, selective, and they depend on “particularized expertise, communication, and factual evidence,” and mobilize local grassroots networks to construct strong cases and draw upon the skills of expert pro bono private lawyers to present persuasive cases (p.76).
In JUSTICE ACROSS BORDERS, Davis has made an important contribution to the human rights law literature by carefully analyzing and documenting the evolution of human rights litigation in U.S. courts against different types of defendants. This book shows that there are avenues available, albeit circumscribed, for pursuing human rights claims outside domestic boundaries without necessarily [*576] exhausting all domestic remedies. Exhaustion of domestic remedies has proved to be a significant hurdle in bringing human rights cases to international venues. However, as Davis documents, federal courts have been increasingly ignoring defendant pleas to dismiss cases because the plaintiffs have failed to work through all domestic remedies. The courts have found that plaintiffs cannot bring such cases within their home countries because the country either lacks a functional legal system or, if it did have such a legal system, the likelihood that a human rights case would receive a fair hearing is negligible. Federal courts have asserted that, as along as the plaintiff and the defendant are physically present in the United States, the courts can assume jurisdiction under the ATS. One of the most unfortunate outcomes of these ATS cases is that plaintiffs are rarely able to collect the monetary awards sanctioned by the courts. Rarely, however, are these cases about seeking monetary damages; rather, they are a search for accountability and justice.
Davis brings his practical work experience as a state Attorney General, attorney for the Atlanta School Board, and Legal Aide to the Speaker of the Georgia House of Representatives, and scholarly knowledge of law and political science to bear upon his assessment. The mix of quantitative analysis and excellent primary data gathering, which includes extensive background interviews with ATS lawyers, human rights NGO administrators, and government officials lend strong evidentiary support to his work. One quibble with Davis’ argument is that he repudiates the role of political ideology as an explanatory variable in ATS litigation. This reviewer, although cognizant of the evidence presented, is not fully convinced. Maybe political ideology lurks in other forms that require further research in ferreting it out before its impact is fully understood.
JUSTICE ACROSS BORDERS is a detailed, well-researched, carefully analyzed, and cogently argued book; it answers pivotal questions on how ATS has become a new tool in overcoming territorial limitations in pursuing international human rights violations very thoroughly and in a high readable and engaging manner. I have made this book required reading for my seminar on international human rights law this fall, and surely this book will make the reading list at several universities and draw the attention of those interested in human rights law and litigation.
Alien Tort Statute, U.S. Code 28 § 1350.
Keck, Margaret E and Kathryn Sikkink. 1998. ACTIVISTS BEYOND BORDERS: ADVOCACY NETWORKS IN INTERNATIONAL POLITICS. Ithaca and London: Cornell University Press.
FILARTIGA v. PENA-IRALA, 630 F.2d 876 (2d Cir. 1980), 30 June 1980, on remand, 577 F.Supp. 860 (E.D.N.Y. 1984), 10 January 1984.
ROMAGOZA v. GARCIA, 434 F.3d 1254 (11th Cir. 2006).
DOE v. SARAVIA, 348 F. Supp. 2d 1112, 1121 (E.D. Cal. 2004). [*577]
SOSA v. ALVAREZ-MACHAIN (03-339) 542 U.S. 692 (2004) 331 F.3d 604, reversed.
TELESAT DE PANAMA, S.A. v. UNITED STATES DEPARTMENT OF DEFENSE, 1992 U.S. App. LEXIS 18469 (D.C. Cir. 1992).
© Copyright 2009 by the author, Srini Sitaraman.