CHAPTER 19........................................................................................................................................... 2The Development of Human Rights and Private Sector Enforcement (The United States Experience)......2

I. Human Rights and the Domestic Legal Political Environment.........................................................2II. Apartheid as a Tort in Violation of the Law of Nations..................................................................19

A. Violation of the Rules of Customary International Law for the Tort of Apartheid Gives Rise to Claims for the Appropriate Civil Action in the Federal Courts under the Alien Tort Statute..........19B. Apartheid is defined with sufficient specificity to establish a civil action for tort under the ATS.20C. Apartheid is wrongful and correspondingly unlawful in customary international law............21D. Apartheid is an International Tort under the ATS...................................................................25E. United States federal courts are a proper forum to adjudicate a civil action for the tort of apartheid in international law.......................................................................................................26F. Conclusion of Amicus Argument.............................................................................................27G. Second Amicus Argument: The Language of the Ats Calls for a Threshold Determination of What a Federal Common Law Tort Is in Violation of the Law of Nations.......................................28H. The Language of The Ats Calls For A Threshold Determination Of What A Federal Common Law Tort Is In Violation of the Law of Nations...............................................................................29I. The Language of the ATS Supports Findings of Subject Matter Jurisdiction and a Civil Action, Regardless of Whether a Textualist or a Non-Textualist Construction and Interpretation is Employed.......................................................................................................................................30J. It is Within the Competence of the Federal Judiciary to Determine What in Federal Common Law Adjudication is a Tort and it is Similarly Within the Competence of the Judiciary to Determine the Appropriate Pleading Form in Which the Right Might be Vindicated......................................32

III. The Historical Underpinnings of the ATS Yields Clear Guidance Regarding the Scope of Its Specific Prescription and Application In Particular Cases...................................................................................33

A. General Remarks on the Relationship Between Substance and Procedure............................34B. Substance and Procedure and the Application of the ATS......................................................36C. Conclusion on the Argument Relating to Strict Pleadings.......................................................37D. Have the Courts Retreated From the Promise of Human Rights Litigation in Section 1350 of ATS?...............................................................................................................................................38

CHAPTER 19The Development of Human Rights and Private Sector Enforcement (The United

States Experience)Chapter 19 addresses the importance of international law to domestic

and regional bodies. As an example, the chapter illustrates the role of human rights in civil litigation in the domestic courts of the United States. We provide a relevant summary of the law relating to claims under the Alien Tort Statute and provide an insider’s view with appropriate documentation of the extensive litigation in the New York courts, In re: Apartheid.1

In 1980, the Second Circuit Court of Appeals delivered a landmark judgment on the private sector enforcement of human rights.0 The theory of liability in Filártiga v. Peña-Irala was that the violation of a particular human right is an international wrong, and has a tortious character.0 Assuming proper jurisdiction, a plaintiff could thus sue the defendant on a human rights tort in United States federal court. The theory of the case was based on a 1792 Statute: the Alien Tort Statute (“ATS”).0 The ATS states that a U.S. federal court provides jurisdiction for an alien to sue for a tort in violation of the law of nations.0 Up until 1980, courts had little experience interpreting the ATS to include the broader “law of nations.” Since 1980, however, some circuit courts invoked the ATS as providing a federal tort for the violation of a human right.0 Moreover, the Supreme Court has affirmed the decision of the lower federal courts in providing a civil tortious remedy for the violation of human rights norms.0

I. HUMAN RIGHTS AND THE DOMESTIC LEGAL POLITICAL ENVIRONMENT

1 In re S. Afr. Apartheid Litig., 346 F. Supp. 2d 538 (S.D.N.Y. 2004) – In this case the South African government stated that these types of cases interfere with the policy of the Truth and Reconciliation Commission, which “‘deliberately avoided a “victor’s justice” approach to the crimes of apartheid and chose instead one based on confession and absolution, informed by the principles of reconciliation, reconstruction, reparation and goodwill.’” Sosa, 542 U.S. at 733 (quoting Declaration of Penuell Mpapa Maduna, Minister of Justice and Constitutional Development, Republic of South Africa (July 11, 2003), reprinted in Brief of the Government of Commonwealth of Australia et al. as Amici Curiae in Support of Petitioner app. b, at 7a). Given the position of the South African government, there is a strong argument that, in some situations, federal courts should defer to the Executive Branch’s judgment on the matter. 0 Filártiga v. Peña-Irala, 630 F.2d 876 (2d Cir. 1980)0 Id.0 28 U.S.C. § 1350 (2010).0 Id.0 See Blum, Jeffrey M. and Steinhardt, Ralph G., Federal Jurisdiction over International Human Rights Claims: The Alien Tort Claims Act after Filartiga v. Pena-Irala, 22 Harv. Int'l. L. J. 53 (1981)0 Id.

One should understand the developments in political and legal culture forming a background to the use of a nation-state’s domestic courts to provide remedies for aliens suffering from human rights violations. The first and most important issue is the general question of what role domestic courts should have in applying international law. Historically, there were no judicial fora of an international character by which legal disputes could be settled through judicial proceedings applying international law. Thus, with the 20th Century development of human rights laws, regional courts specialized in human rights were created.0 These courts were not created without reservations. Judicial conservates worried that the prescription, application, and enforcement of human rights standards are not precise enough for judicial settlement. There also remains a lingering fear that national courts given effect to such norms and standards would be trenching upon the limits of law, and in fact transforming the courts into institutions of discretionary political preference. However, human rights jurisprudence before the Inter-American Court of Human Rights, as well as the European Court of Human Rights, has demonstrated that judicial settlement of human rights issues has been eminently juridical and principled, and indeed recorded in a impressive jurisprudence of case law and precedent. Thus, in the post-World War II world, there was a gradual acceptance that human rights norms are amenable to the legal culture traditions of the practice of law.

The history of the United States Supreme Court has reflected a willingness on its part to carve out a role for itself in the making and application of international law. In turn, all U.S. federal courts have historically been active agents in the development of international law through legal processes. These developments, of course, should also be seen against the backdrop of U.S. foreign relations. The role of the courts in cultivating a sophisticated legal respect for human rights had to be balanced against the nation’s evolving foreign policy mandates to position itself within the global forces that enhance or threaten U.S. interests. These matters became critical as the U.S. observed the outbreak of the First World War. The U.S. long insisted that it was a neutral party and that its neutrality could be challenged or compromised by the participants in the war.0

At the back of neutrality was the notion that the United States was exceptional and that its creation rejected strong nationalist sentiment in Europe; A sentiment that expressed itself through intense competition, extensive imperialist ambitions, and a willingness to resort to war as an instrument of national interest. Indeed, the United States had been created in a revolt against colonial exploitation and imperialism. These perspectives

0 See Winston Nagan and Aitza Haddad, International Courts, Wiley-Blackwell Encyclopedia of Globalization (February 29, 2012)0 See generally Ross Gregory, The origins of American intervention in the First World War, Norton (1971)

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of American exceptionalism expressed themselves in two very different outlooks. One was to altogether stay out of the growing mess in Europe. This perspective believedthe Europeans were destroying themselves and the U.S. would do likewise by participating. A second outlook, reflected in Woodrow Wilson’s idealism, was that the European conflict could generate the conditions for U.S. to significantly influence the shape of a future world order. These principles are founded on a more idealistic position, and defended as exceptionally American. The first outlook would endure for a long period and have a significant impact on the U.S. position regarding international human rights. The second outlook gravitated to the right wing of the political spectrum and was reflected in an aggressively promoted agenda of isolationism.

Wilsonian idealism triggered the peace treaty in 1919,0 and although making important compromises to the demands of the French and the British, nonetheless put into the peace process the creation of a League of Nations,0 as well as the notion that all peoples had a right to self-determination.0 The isolationists, however, had a great victory when Woodrow Wilson returned to the United States and had the treaty rejected by the senate.0 One of the leading isolationists was Wilson’s arch nemesis, Senator Henry Cabot Lodge of Massachusetts.0 The isolationists were helped when at a crucial time in the treaty-ratifying campaign Woodrow Wilson suffered a severe stroke and was incapable of advocating for ratification.0 Isolationism therefore reigned triumphant and the United States turned to its internal political issues.0

With the escaping and the Great Depression becoming the focus of American politics, the nation looked even more inward as it crafted policies

0 The Treaties of Peace 1919-1923, New York: Carnegie Endowment for International Peace, 1924, is the source of the complete text of the 1919 Treaty; See also Treaty of Versailles, Encyclopædia Britannica, Encyclopædia Britannica Online, Encyclopædia Britannica Inc., 2012 (accesed on 12 Apr. 2012)0 See generally Northedge, FS., The League of Nations: Its Life and Times, 1920–1946. New York: Holmes & Meier (1986) – It is a concise story about the creation of the League of Nations. Professor Northedge focuses on the reasons for the failure of the of the League as a system of collective security; See also Corbett, P. E., What is the League of Nations, 5 Brit. Y.B. Int'l L. 119 (1924)0 Antonio Cassese, Self-determination of Peoples; A legal Reappraisal, A Grotius Publication; Cambridge University Press (1997); See also Brilmayer, Lea, Secession and Self-Determination: A Territorial Interpretation, 16 Yale J. Int'l L. 177 (1991)0 Aug 19, 1919: President Wilson appears before the Senate Foreign Relations Committee, This Day in History, History.com (accessed April 12, 2012); See also American History Series: Remembering the Peace Talks That Followed the Original Armistice Day, Voice of America, VOANews.com (November 10, 2010); See generally Lloyd E. Ambrosius, Woodrow Wilson and the American Diplomatic Tradition: The Treaty Fight in Perspective, Cambridge University Press (January 26, 1990)0 Id.; See generally John Milton Cooper, Breaking the Heart of the World: Woodrow Wilson and the Fight for the League of Nations, Cambridge University Press (September 24, 2001); See also David Mervin, Henry Cabot Lodge and the League of Nations, Journal of American Studies, 4 , pp 201-214 (1971)0 Id.0 Id.

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towards this end.0 Meanwhile, in Asia, Japanese imperialism embolded its efforts to secure territorial expansion.0 Also, in Europe, Adolf Hitler rose to power in Germany and the growing militarization of the Nazis would threaten neighboring countries, and the U.S. and other nations’ interests worldwide.0 In between these two growing world powers, Joseph Stalin consolidated his totalitarian regime in Russia.0 It should be important to note that when Hitler supported Franco in the Spanish Civil War, the neutrality of the U.S. was not necessarily a policy favored by all.0 Thus, private brigades were created and went to Spain to fight in defense of the Spanish republic. One such example was the Abraham Lincoln brigade.0 When World War II broke out in 1939, isolationism was the favored position by the American public, and the United States officially stayed out of this latest European entanglement.0 President Roosevelt, however, had a keen sense on the strategic implications the war had American security, and could note support an absolute isolationist policy whereby the U.S. had little control over the conflict’s outcome.0 Thus, he worked on a number of mechanisms to support Britain and her allies while still maintaining the fig leaf of neutrality.0 The debate over U.S. neutrality in World War II ended when the Japanese attacked Pearl Harbor on December 7, 1941.0 This attack sidelined the leading advocates of isolationism, as their positions now appeared to give comfort to America’s enemies.

With America at war, Roosevelt developed a framework for the Allies’war aims, often known now as Atlantic charter.0 The charter contained four freedoms: freedom of speech and expression, freedom of conscience and belief, freedom from fear, and freedom from want.0 These principles formed the foundational values for the creation of the United Nations and the 0 See generally Amity Shlaes, The Forgotten Man: A New History of the Great Depression, HarperCollins (May 27, 2008); See generally Peter Temin, Lessons from the Great Depression, MIT Press (October 8, 1991); See also John A. Garraty, The New Deal, National Socialism, and the Great Depression, The American Historical Review , Vol. 78, No. 4, pp. 907-944 (October, 1973)0 Id.; See generally Sugihara, Kaoru, Japanese imperialism in global resource history. Working Papers of the Global Economic History Network (GEHN), 07/04. Department of Economic History, London School of Economics and Political Science, London, UK. (2004) 0 Id.; See generally Hans Raupach, The Impact of the Great Depression on Eastern Europe, Journal of Contemporary History , Vol. 4, No. 4, The Great Depression, pp. 75-86 (October, 1969)0 Id.; See generally Ward, Chris, Stalin’s Russia, Edward Arnold (1993)0 See generally Robert H. Whealey, Hitler And Spain: The Nazi Role In The Spanish Civil War, 1936-1939, University Press of Kentucky (January 3, 2005)0 Id.0 See generally Alan John Percivale Taylor, Origin Of The Second World War, Simon and Schuster, (April 1, 1996); See also Winston Churchill, The Second World War, Golden Press (1960)0 Id.0 Id.; See generally Warren F. Kimball, Forged in War: Roosevelt, Churchill, And The Second World War, HarperCollins (May 6, 1998)0 Id.; See generally James Rusbridger and Eric Nave, Betrayal at Pearl Harbor: how Churchill lured Roosevelt into World War II, Summit Books (1991)0 Id.; See generally Douglas Brinkley, David Richard Facey-Crowther, The Atlantic Charter, Palgrave Macmillan (Apr 15, 1994); See also The Atlantic Charter, signed by Franklin Roosevelt and Winston Churchill on August 14, 1941, available at http://www.internet-esq.com/ussaugusta/atlantic1.htm 0 Id.

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UN charter.0 It should be recognized that these principles were also Roosevelt’s principles in which he based his New Deal policies.0 Following the war, and after Roosevelt’s death, the victorious Allies created the UN with the U.S. being a critical player it’s founding and in its functions.0 Central to the U.N.’s charter are concerns for world peace and security, and human rights.0 It was widely acknowledged at the time, however, that human rights should be clarified and possibly codified.0 For this purpose, President Truman appointed Eleanor Roosevelt as a deleage to the U.N. General Assembly, where she became chairperson of the committee charged with drafting a declaration of human rights.0 It will be seen that the universal declaration reflects the new deal values of the U.S. at that time.0 Certainly, civil and political rights wre paramount.0 However, Roosevelt himself believed that the fundamental rights of the U.S. were incomplete without the protections of economic human rights.0 Roosevelt in fact talked about the fact that necessitous men were not free.0 And before the war, he speculated about a national bill of socio-economic rights.0

0 Id.; See also M. Glen Johnson, The Contributions of Eleanor and Franklin Roosevelt to the Development of International Protection for Human Rights, Human Rights Quarterly , Vol. 9, No. 1, pp. 19-48 (February, 1987); See generally Frank Robert Donovan, Mr. Roosevelt's four freedoms: the story behind the United Nations Charter, Dodd, Mead (1966)0 Id.; See generally Elizabeth Borgwardt, A New Deal For The World: America's Vision For Human Rights, Harvard University Press (2005)0 Basic Facts - About the U.N., U.N. Publication, Sales No. E.04.I.7; The U.N. officially came into existence on 24 October 1945, when the Charter had been ratified by China, France, the Soviet Union, the United Kingdom, the U.S. and a majority of other signatories. U.N. Day is celebrated on 24 October each year; See generally Mark Mazower, No Enchanted Palace: The End of Empire and the Ideological Origins of the United Nations, Princeton University Press (October 21, 2009); See generally Stephen C. Schlesinger, Act Of Creation: The Founding of the United Nations : A Story of Superpowers, Secret Agents, Wartime Allies and Enemies, and Their Quest for a Peaceful World, Basic Books (December 14, 2004); See generally Robert C. Hilderbrand, Dumbarton Oaks: The Origins of the United Nations and the Search for Postwar Security, UNC Press Books (2001); See also Leland M. Goodrich, From League of Nations to United Nations, International Organization, 1 , pp 3-21 (1947)0 Id.; See also See United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI, available at: http://www.unhcr.org/refworld/docid/3ae6b3930.html; See also Fassbender, Bardo The United Nations Charter As Constitution of the International Community, 36 Colum. J. Transnat'l L. 529 (1998); See also Leland M. Goodrich., et al., Charter of the United Nations: Commentary and Documents, 290–309 (3d ed. 1969) – discusses the history of the Charter of the United Nations and justifications as to why the Security Council is imbued with such power. 0 Id.; See also Lillich, Richard B., Intervention to Protect Human Rights, 15 McGill L. J. 205 (1969)0 M. Glen Johnson, The Contributions of Eleanor and Franklin Roosevelt to the Development of International Protection for Human Rights, Human Rights Quarterly , Vol. 9, No. 1, pp. 19-48 (February, 1987)0 Id.; See generally Johannes Morsink, The Universal Declaration of Human Rights: Origins, Drafting, and Intent, University of Pennsylvania Press (1999)0 Id.0 Franklin Delano Roosevelt, A Rendezvous With Destiny, Speech before the 1936 Democratic National Convention, Philadelphia, Pennsylvania (June 27, 1936); See also Franklin Delano Roosevelt, Annual Message to Congress (January 11, 1944)0 Id.0 Id.

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The U.N. adopted the United Nations Declaration of Human Rights (UDHR) as a resolution of the general assembly.0 In general, resolutions of the general assembly are not legally binding.0 To get the degree of global consensus for the adoption of the UDHR meant that, in effect, it would have to be adopted as a non-legally binding resolution.0 Still the UDHR was not without some political, moral, and juridical currency. It is generally understood that when a sovereign state expresses that it supports a particular issue, it should not act in a manner inconsist with those views. Additionally, although human rights, as a concept, are not specifically defined in the UN charter, the charter does make specific reference to “human rights.”0 This means that the UDHR is based on a constitutional principle, which has a legal character in the UN charter itself.0 The UN charter is the international constitution.0

Internationall, there was a need for an explicit effort to create a treaty-based regime inspired by the UDHR. Thus, the UN generated two important treaties using the UDHR and providing greater explication of the rights contained in it in the form of international treaties. These two treaties are the International Covenant on Civil and Political rights,0 and the International Covenant on Social Cultural and Economic rights.0 These three instruments constitute what today would refer to as an International Bill of Rights.0 The critical question now is the role of the U.S. in adopting these treaties and making them part of U.S. law.0 In the 1950s, a new form of isolationism

0 Supra note 38; See also UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III), available at: http://www.unhcr.org/refworld/docid/3ae6b3712c.html (accessed 12 April 2012)0 Joyner, Chritopher C., U.N. General Assembly Resolutions and International Law: Rethinking the Contemporary Dynamics of Norm-Creation, 11 Cal. W. Int'l L.J. 445 (1981); See also Stephen M. Schwebel, The Effect of Resolutions of the U.N. General Assembly on Customary International Law, Proceedings of the Annual Meeting (American Society of International Law), Vol. 73, pp. 301-309 (April 26 - 28, 1979); See also Johnson, D. H. N., The Effect of Resolutions of the General Assembly of the United Nations, 32 Brit. Y.B. Int'l L. 97 (1955-1956)0 Id.0 Supra note 35. 0 Id.0 Id.0 International Covenant on Civil and Political Rights (16 Dec 1966)0 International Covenant on Economic, Social and Cultural Rights ( 16 Dec 1966).0 Strossen, Nadine, United States Ratification of the International Bill of Rights: A Fitting Celebration of the Bicentennial of the U.S. Bill of Rights, 24 U. Tol. L. Rev. 203 (1992-1993) – “The three documents that constitute the International Bill of Rights are the Universal Declaration of Human Rights, which the United Nations adopted by consensus in 1948, and two covenants that spell out in greater detail the broad principles enunciated in the Universal Declaration: the International Covenant on Civil and Political Rights ("ICCPR") and the International Covenant on Economic, Social, and Cultural Rights ("ICESCR"). These three documents contain core humanrights principles that are widely recognized by the international community”; See generally Henkin Louis, The International Bill of Rights: The Covenant on Civil and Political Rights, Columbia University Press (1981)0 Id.

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emerged from the extreme right wing of the U.S. senate.0 Senator John Bricker of Ohio led this movement. Senator Bricker took the view that he wished to bury the human rights covenant so deep that no U.S. president would dare to resurrect it.0

A leading disply of the isolationist movement’s power came from its ability to block the adoption of the first human rights treaty. This is the convention that outlawed genocide.0 Senator Bricker was an impeccable enemy of international human rights.0 The isolationist movement in the 1950s was in part fueled by the success former isolationists had in blocking the adoption of the League of Nations treaty.0 Ideologically, that perspective was also justified by the fact that in the League of Nations there was the International Labor Organization (ILO), whose goal it was to protect the fundamental rights of workers worldwide.0 Hence, the ILO had the odor of socialism, an ideology deemed anathema to the right wing.0 Additionally, under the jurisdiction of the ILO were matters concerning the protection of minorities.0 This presented the problem of the internationalization of race relations under the progressive ILO.0 This of course was a sensitive matter for the right wing.0 Additionally, the ILO also developed a jurisdictional concern for indigenous people.0 The complicated and dark history of the U.S.’s treatment of indigenous peoples further fueled the isolationist outlook.0 It should be added that in the 1950s the Civil Rights movement for black Americans had asserted itself in earnest into the nation’s debate halls.0 The idea that human rights values could be mobilized to support claims for civil and political rights was another reason to sustain the strength of isolationist demands.0

0 See generally Sara Diamond, Roads to Dominion: Right-Wing Movements and Political Power in the United States, Guilford Press (September 8, 1995); See also Natalie Hevener Kaufman and David Whiteman, Opposition to Human Rights Treaties in the United States Senate: The Legacy of the Bricker Amendment, Human Rights Quarterly , Vol. 10, No. 3, pp. 309-337 (Aug., 1988)0 Id.; Supra note 52 at 223 – “My purpose in offering this resolution is to bury the so-called covenant on human rights so deep that no one holding high public office will ever dare to attempt its resurrection.”0 Convention on the Prevention and Punishment of the Crime of Genocide, Paris (9 December, 1948)0 Supra note 55; See also Natalie Hevener Kaufman and David Whiteman, Opposition to Human Rights Treaties in the United States Senate: The Legacy of the Bricker Amendment, Human Rights Quarterly , Vol. 10, No. 3, pp. 309-337 (Aug., 1988)0 Supra note 54 and 55. 0 See generally Alcock, Antony Evelyn, History of the International Labor Organization, Octagon Books (1971)0 Id.0 Id.0 Id.0 Id.0 Id.0 Id.0 Id.0 Id.

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There was also a broader political struggle during this time in the Cold War.0 This decades long contest was fought on many fronts, including, and sometimes most directly, on the front of ideology. In this battle for ideological primacy, the U.S. postured itself as being on the side of freedom, democracy, and fundamental rights.0 In turn, it sought to portray its adversary, most notably the U.S.S.R., as standing for the opposite values.0 In this battle, human rights held an important place in the U.S.’s armory of Cold War ideas.0 In this sense, the isolationists’ antipathy toward human rights was an embarrassment. In particular, its antipathy to the adoption of the genocide convention was an embarrassment to both republican and democratic administrations. The results of isolationist advocacy generated an important and unintended consequence. Since the U.S. was a major grantor of foreign aid, Congress determined that the foreign assistance from the U.S. should be made conditional on some measure of human rights performance.0 Putting human rights provisions in the Foreign Assistance Act, as a part of ordinary legislation, was a way of avoiding the specific procedure before the senate for the adoption of a treaty.0 A treaty, of course, requires a supermajority, and thus isolationist participation.

Placing human rights into the framework of legislation and in the Foreign Assistance Act had far reaching implications for human rights advocacy. Since human rights were made a condition for receiving foreign assistance, it attracted interest groups that lobbyied for the granting or withdrawal of foreign assistance based on a particular nation’s human rights performance. This essentially made the culture of human rights a part of ordinary political advocacy in the national legislative process. Foreign assistance legislation developed important constituencies in human rights advocacy, including watchdog groups. Further, in the executive branch, the introduction of human rights values directly into foreign policy resulted in the development of human rights reporting by the Department of State. This included the creation of a human rights position within the department during the Carter Administration. This administration insisted upon the more general principle that human rights be the framework of normative guidance for the foreign policy of the U.S.

The significance of the introduction of human rights into the framework of the U.S. foreign policy meant that there were many advocacy 0 See Anders Stephanson, Cold War Origins, IN ENCYCLOPEDIA OF AMERICAN FOREIGN POLICY, VOLUME 1, edited by Alexander DeConde, Richard Dean Burns, Fredrik Logevall. Simon and Schuster (2001); See also Robert L. Messer, The End of an Alliance: James F. Byrnes, Roosevelt, Truman, and the Origins of the Cold War, Chapel Hill: The University of North Carolina Press, Pp. 292 (1982)0 Id.0 Id.0 Id.0 See generally David P. Forsythe, Human Rights and U.S. Foreign Policy: Congress Reconsidered, University Press of Florida (March 1, 1988)0 Id.

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constituencies generated and which targeted the political process. Human rights had in effect become domesticated. Perhaps the most significant human rights achievement, in the context of U.S. foreign relations, occurred during the Reagan administration, after Congress enacted a unique bill called, Comprehensive Anti-Apartheid Act of 1986. This bill imposed comprehensive sanctions on South Africa based on human rights standards and guidelines. The Reagan Administration opposed the bill but it was enacted over the Reagan veto. The U.S. example of using foreign assistance and foreign policy to advance human rights was also followed by many other developed states.

Human rights interest groups explored various ways in which human rights advocacy could be directed at the domestic courts of the U.S. The leading modern example of this initiative is Filártiga v. Peña-Irala.0 In this case, the plaintiffs, the Filártigas, appealed a federal district court decision that dismissed their wrongful death claim against the defendant, Peña-Irala, for lack of subject matter jurisdiction.0 Both the plaintiffs and defendnats were citizens of Paraguay. The Filártiga family was purported opponents of the government of Paraguay. They claimed that their 17-year old son, Jolito, had been kidnapped and tortured to death by Peña-Irala,Paraguay’s inspector general of police.0 The Filártigas believed that Jolito was tortured and murdered in retaliation for the Mr. Filartiga’s political activity.0 Initially, Filártiga filed a criminal action against Peña in the Paraguayan courts; however, the Peña arrested Filártigas’ lawyer and chained him to a wall and threatened his death.0 That attorney was subsequently disbarred from practicing law. When the Filártigas heard that Peña was in the U.S., they filed a civil suit against him asking for $10,000,000 in compensatory and punitive damages. The complaint was filed as a suit inter alia on the basis of Alien Tort Statute (ATS).0 The ATS reads as follows: “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.”0 Although the ATS had originally been included in the Judiciary Act of 1789, it was not widely litigated until the Filártiga decision.0 The critical question for the 2nd circuit court was, whether torture is a conduct that violates the law of nations, and separate from one, based on treaty.0 This required the court to 0 Filártiga v. Peña-Irala, 630 F.2d 876 (2d Cir. 1980) 0 Id.0 Id.0 Id.0 Id.0 28 U.S.C. § 1350 (2000) – The ATS was originally part of the Judiciary Act of 1789.0 Id.0 Id.; See also Philip A. Scarborough, Rules of Decision for Issues Arising Under the Alien Tort Statute, Columbia Law Review, Vol. 107:457 (2007); See also Blum, Jeffrey M. and Steinhardt, Ralph G., Federal Jurisdiction over International Human Rights Claims: The Alien Tort Claims Act after Filartiga v. Pena-Irala, 22 Harv. Int'l. L. J. 53 (1981)0 Id.

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examine whether torture was an international tort in violation of the law of nations.0 That inquiry required determining whether there is a source of international law providing legal currency to the idea of torture as an actionable wrong under the law of nations.0 The circuit court placed strong reliance on the identification of appropriate sources of the law of nations, as indicated in Supreme Court precedent.0 Indeed, the 2nd Circuit quoted the following passage from The Paquete Habana:

“where there is no treaty and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of eivilized nations, and, as evidence of these, to the works of jurists and commentators who by years of labor, research, and experience have made themselves peculiarly well acquainted with the subjects of which they treat. Such works are resorted to by judicial tribunals, not for the speculations of their authors concerning what the law ought to be, but for trustworthy evidence of what the law really is.”0

Based in part on this precedent, Judge Irving Kaufman determined that torture was an international wrong and a tort in violation of the law of nations under customary international law.0 The court quoted the UN Charter, not a self-executing international agreement, to the effect that it established an obligation to promote “universal respect for, and observance for human rights and fundamental freedoms.”0 It also quoted Article 55 of the UN Charter, which stipulates that all members of the UN “pledge themselves to take joint and separate action” for the achievement of promoting and supporting human rights.0 The court also referenced the UDHR, a politically, but not legally, binding declaration, based on its stipulation that no one shall be subjected to torture.0 The court noted that 0 Id.; See generally Craig M. Scott, Torture as Tort: Comparative Perspectives on the Development of Transnational Human Rights Litigation, Hart Publishing (2001); See also Michael Danaher, Torture as a Tort in Violation of International Law: Filartiga v. Peña-Irala, Stanford Law Review , Vol. 33, No. 2, pp. 353-369 (January, 1981) 0 Id.0 Id.0 The Paquete Habana, 175 U.S. 677, at 700 (1900).0 Supra note 91.0 Id. at Part II – “The United Nations Charter (a treaty of the United States, see 59 Stat. 1033 (1945)) makes it clear that in this modern age a state's treatment of its own citizens is a matter of international concern. It provides:With a view to the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among nations ... the United Nations shall promote ... universal respect for, and observance of, human rights and fundamental freedoms for all without distinctions as to race, sex, language or religion. Id. Art. 55. And further:All members pledge themselves to take joint and separate action in cooperation with the Organization for the achievement of the purposes set forth in Article 55. Id. Art. 56.”0 Id.0 Id. – “While this broad mandate has been held not to be wholly self-executing, Hitai v. Immigration and Naturalization Service, 343 F.2d 466, 468 (2d Cir. 1965), this observation alone does not end our inquiry. (9) For although there is no universal agreement as to the precise extent of the "human rights

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the U.N. General Assembly had indicated that the Charter precepts embodied in theUDHR “constitute basic principles of international law.”0 The court found further support in the UDHR on the protection on all persons being subjected to torture.0 Finally, the court also drew on developments seeking to outlaw torture in regional international law.0 In the court’s view, the cumulative effect of these expressions generated an unambiguous expectation that torture is universally condemned and prohibited in customary international law.0

and fundamental freedoms" guaranteed to all by the Charter, there is at present no dissent from the view that the guaranties include, at a bare minimum, the right to be free from torture. This prohibition has become part of customary international law, as evidenced and defined by the Universal Declaration of Human Rights, General Assembly Resolution 217 (III)(A) (Dec. 10, 1948) which states, in the plainest of terms, "no one shall be subjected to torture." (10) The General Assembly has declared that the Charter precepts embodied in this Universal Declaration "constitute basic principles of international law." G.A.Res. 2625 (XXV) (Oct. 24, 1970).”0 Id.0 Id. – “These U.N. declarations are significant because they specify with great precision the obligations of member nations under the Charter. Since their adoption, "(m)embers can no longer contend that they do not know what human rights they promised in the Charter to promote." Sohn, "A Short History of United Nations Documents on Human Rights," in The United Nations and Human Rights, 18th Report of the Commission (Commission to Study the Organization of Peace ed. 1968). Moreover, a U.N. Declaration is, according to one authoritative definition, "a formal and solemn instrument, suitable for rare occasions when principles of great and lasting importance are being enunciated." 34 U.N. ESCOR, Supp. (No. 8) 15, U.N. Doc. E/cn.4/1/610 (1962) (memorandum of Office of Legal Affairs, U.N. Secretariat). Accordingly, it has been observed that the Universal Declaration of Human Rights "no longer fits into the dichotomy of "binding treaty' against "non-binding pronouncement,' but is rather an authoritative statement of the international community." E. Schwelb, Human Rights and the International Community 70 (1964). Thus, a Declaration creates an expectation of adherence, and "insofar as the expectation is gradually justified by State practice, a declaration may by custom become recognized as laying down rules binding upon the States." 34 U.N. ESCOR, supra. Indeed, several commentators have concluded that the Universal Declaration has become, in toto, a part of binding, customary international law. Nayar, supra, at 816-17; Waldlock, "Human Rights in Contemporary International Law and the Significance of the European Convention," Int'l & Comp. L.Q., Supp. Publ. No. 11 at 15 (1965).”0 Id at Part III – “the sphere of domestic jurisdiction is not an irreducible sphere of rights which are somehow inherent, natural, or fundamental. It does not create an impenetrable barrier to the development of international law. Matters of domestic jurisdiction are not those which are unregulated by international law, but those which are left by international law for regulation by States. There are, therefore, no matters which are domestic by their "nature.' All are susceptible of international legal regulation and may become the subjects of new rules of customary law of treaty obligations. Preuss, "Article 2, Paragraph 7 of the Charter of the United Nations and Matters of Domestic Jurisdiction," Hague Receuil (Extract, 149) at 8, reprinted in H. Briggs, The Law of Nations 24 (1952).”0 Id. – “Having examined the sources from which customary international law is derived the usage of nations, judicial opinions and the works of jurists (16) we conclude that [HN5] official torture is now prohibited by the law of nations. The prohibition is clear and unambiguous, and admits of no distinction between treatment of aliens and citizens. Accordingly, we must conclude that the dictum in Dreyfus v. von Finck, supra, 534 F.2d at 31, to the effect that "violations of international law do not occur when the aggrieved parties are nationals of the acting state," is clearly out of tune with the current usage and practice of international law. The treaties and accords cited above, as well as the express foreign policy of our own government, (17) all make it clear that international law confers fundamental rights upon all people vis-a-vis their own governments. While the ultimate scope of those rights will be a subject for continuing refinement and elaboration, we hold that the right to be free from torture is now among them. We therefore turn to the question whether the other requirements for jurisdiction are met.”

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Shortly after Filártiga, the U.S. Circuit Cour for the District of Columbia heard Tel-Oren v. Libyan Arab Republic, another case related to human rights.0 In Tel-Oren, the critical question was whether terror is a tort in violation of the law of nations.0 The three circuit judges deciding the case, Bork, Edwards, and Robb, all voted to dismiss the lawsuit, but they provided radically different grounds for doing so.0 The opinions appeared to effectually undue Filártiga.0 Judge Bork reasoned that an interpretation of the 1789 Judiciary Act should be guided by the original intent of the drafters. In Bork’s view, the original intent of Congress in 1789 could have conceivably had only three cases in mind; (1) safe conducts; (2) infringement of ambassadorial rights; and (3) piracy.0 Judge Bork therefore concluded that the framers could not have envisioned either torture or terrorism, and thus it did not apply. The second opinion, by Judge Edward’s, reasoned that that liability should be extended to non-state actors. The third opinion, by Judge Robb, reasoned that the entire matter implicated the political question doctrine.

Judge Bork’s opinion also contained a more technical basis for dismissal than merely original intent. He reasoned that none of the sources including either treaties or customary international law created “an explicit grant of a cause of action.” The existence of an explicit grant of a cause of action isnecessary for legal action in the courts. In the absence of such a cause of action, the judiciary would be encroaching on the constitutional powers of the other two branches of government in the conduct of foreign relations. In effect even if there was federal jurisdiction under the ATS, no explicit cause of action had in fact been created to permit the plaintiffs to pursue the claim. Judge Borke’s insistence upon an international cause of action is not a matter that could have been established in 1789, since there were no causes of action then.

The system of pleadings was based on the formulary system requireing a specific pigeon hole of liability. In fact, the formulary system grew out of the common law and its peculiar history. In the 19th century, the forms of action were eventually displaced by the system of co-pleading and that system relies on the concept of a cause of action to state a valid claim at law. However the code system developed its own problems and in 1938 the Supreme Court adopted a new system of rules of federal procedure. Central to the new system was a throwing out of the code system of pleading causes of action. The federal rules required notice pleading, a short plain statement of the claim indicating that the pleader is entitled to relief. Thus, Judge 0 Tel-Oren v. Libyan Arab Republic, 726 F. 2d 774 (D.C. Cir. 1984)0 Id.0 Id.0 Id.0 Id. at 779 – “The principal offenses against the law of nations, animadverted on as such by the municipal laws of England, are of three kinds: 1. Violation of safeconducts; 2. Infringement of the rights of ambassadors; and, 3. Piracy.” 4 Blackstone’s Commentaries 67 (Welsby ed. 1854) (emphasis added).”

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Bork’s strict pleading standard is no longer the law governing pleading and procedure in federal courts.

The Tel-Oren case has not been a significant influence on the development of human rights law under section 1350 of the ATS. A sizeable body of case law developed in other circuits. In Todd v. Panjaitan, an Indonesian general was held liable for the death of a young student-activist during the 1991 East Timor Dili massacre. In Forti v. Suarez-Mason, the court held that torturers from Argentina who acted against fellow citizens were enemies “to all mankind” and thus subject to the jurisdiction of any country, even though the atrocities were committed elsewhere and the parties were not citizens of that country).0 In Paul v. Avril, the dictator-president of Haiti was held liable for the torture of five political opponents.0

The Forti v. Suarez-Mason case in the ninth circuit has been extremely helpful for clarifying the ostensible differences in the interpretation of § 1350 in Filártiga and Tel-Oren. In Forti, the court concluded that the interpretation given to § 1350 in Filártiga was “better reasoned and more consistent with principles of international law.” The court noted a growing consensus in practice that “section 1350 provides a cause of action for certain international common law torts.” The court therefore explicitly rejected the Judge Bork’s requirement of that the plaintiff must establish “the existence of an independent, express right of action, since the law of nations clearly does not create or define civil actions, and to require such an explicit grant under international law would effectively nullify that portion of the statute which confers jurisdiction over tort suits involving the law of nations.” The court concluded that a plaintiff need only plead a tort in violation of law of nations. The implications of Tel-Oren’s interpretation of § 1350 is that that section not only provides for jurisdiction, but also establishes the basis of a cause of action. This federal cause of action arises from the recognition of certain international torts through the prism of § 1350. The standards that guide the recognition of these international torts are that they represent a universal consensus in the international community as to the binding status and content. In short, the standard of customary international law for § 1350 purposes is that the foundation for a causes of actions for an international tort must have the character of universality, it must be definable, and it must carry the mantle of an obligatory international legal norm.

In the first Forti decision, the court determined that “causing a disappearance did not meet the customary law criteria quoted above.” The court came to the same conclusion with regard to the alleged international tort of cruel, inhuman and degrading treatment.” In the second Forti

0 Forti v. Suarez-Mason, 672 F. Supp. 1531 (N.D. Cal. 1987). 0 901 F. Supp. 330 (S.D. Fla. 1994). See also Kadic v. Karadzic, 70 F.3d 232, (2d Cir. 1996); Deutsch v. Turner Corp, 324 F.3d 692 (9th Cir. 2003); Carmichael v. United Technologies Corp., 835 F.2d 109 (5th Cir. 1988); Tachiona v. United States, 386 F.3d 205 (2d Cir. 2004.).

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decision, the court reexamined these issues with the support of a multitude of jurist consults indicating that there was a universal consensus about the expectation of obligation regarding the wrong of causing a disappearance. The court in particular quoted the opinion of Professor Franck “the international community has also reached a consensus on the definition of a disappearance. It has two essential elements: a) abduction by a state official or by persons acting under state approval or authority and b) refusal by the state to acknowledge the abduction and detention.” The court also noted that the Restatement of the Law (3d) of Foreign Relations Law of the United States § 702 includes “disappearance as a violation of the international law of human rights.” These and other materials in the form of resolutions, declarations, and reports led the court to conclude that the material before it were “sufficient to establish the existence of a universal and obligatory international proscription of the tort of causing a disappearance.” The court however found that the tort of cruel, inhuman, or degrading treatment was insufficiently precise and insufficiently developed to qualify as a tort in violation of law of nations under § 1350.

The precise status of human rights claims under § 1350 was significantly clarified by the United States Supreme Court inn Sosa v. Alvarez-Machain.0 An important consequence of Sosa is that it supports the second and the ninth circuit conclusion that a selected number of human right torts are actionable under the ATS. In Sosa, plaintiff Alavarez-Machain sued defendant Sosa for the alleged tort of arbitrary detention. Specifically, Sosa led a group of Mexican nationals who abducted Machain and had him secreted to the United States where he was arrested and made to stand trial for allegedly being implicated in the torture murder of a DEA agent in Mexico. The Supreme Court declined to extend the scope of human rights torts to the wrong of arbitrary detention. According to the Court, “any credible invocation of a principle of arbitrary detention that the civilized world accepts as binding customary international law requires a factual basis beyond relatively brief detention in excess of positive authority.”0 In short, the relatively short period Alvarez was detained by Sosa was not a wrong of sufficient gravity to constitute a breach of a universal, defined, and obligatory rule of customary international law.

The Supreme Court in Sosa gave careful consideration to the history of the Alien Tort Statute and the context of the law of nations during the period of its enactment. The Court notes that the term “law of nations” contained two identifiable meanings reflected in practice. First, that the law of nations was essentially about the rules that operate between “nations.” Second, however, the Court noted a separate and more pedestrian meaning whereby a judge made law regulating individuals functioning outside of domestic boundaries. These domestic forms of conduct had an international character. 0 Sosa v. Alvarez-Machain, 542 U.S. 692 (2004)0 Id.

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They included mercantile issues such as bills of exchange, marine causes such as freight, average, demurrage, insurances, bottomary… (in all disputes related to prizes, to shipwrecks, hostages and ransom bills). The Court noted that it had the law of nations in mind when it decided Paquete Habana. In that case, the status of coastal fishing vessels in wartime grew from “ancient usage amongst civilized nations, beginning centuries ago, and gradually ripening into a rule of international law.” The Court also referred to another class of cases where binding obligations were imposed on individuals which were derived from the norms of state relationships. Referring to Blackstone, the court identified the violation of safe conducts, the infringement of the rights of ambassadors, and piracy. This is obviously a narrow set of violations to the law of nations that historically provided a judicial remedy. [Is this the author’s opinion? Perhaps it can be fleshed out more.]The Court thought that these violations were probably on the minds of those who drafted the ATS with its reference to tort.

The Court agres with Judge Bork view that the ATS is a jurisdictional statute and that it does not create new causes of action. The Court adds, however, that a reasonable inference from historically background suggests that the statute was meant to have a practical effect the moment it became law. Thus, the Court maintains that the jurisdictional foundation of the statute is best read as “having been enacted on the understanding that the common law would provide a cause of action for a modest number of international law violations with a potential for personal liability at the time.” The Court concludes that:

it is correct then, to assume that the First Congress understood that the district courts would recognize private causes of action for certain torts in violation of the law of nations, though we have found no basis to suspect congress had any examples in mind beyond those torts corresponding to Blackstone’s three primary offenses: violation of safe conducts, infringement of the rights of ambassadors and piracy. We assume, too, that no development in the two centuries from the enactment of § 1350 to the birth of the modern line of cases beginning with Filártiga v. Peña-Irala has categorically precluded federal courts from recognizing a claim under the law of nations as an element of the common law; Congress has not in any relevant way amended § 1350 or limited civil common law power by another statute. Still there are good reasons for a restrained conception of the discretion of a federal court should exercise in considering a new cause of action of this kind. Accordingly we think the courts should require any claim based on the present day law of nations to rest on the norm of international character accepted by the civilized world and

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defined with specificity comparable to the feature of 18th-century paradigms we have recognized.0

The court then examines the fundamental reasons of judicial policy for the approach that is cautious with respect to the creation of human rights causes of action under § 1350. First, the central point that the court makes is that the view of the common law in 1789 was influenced by Blackstone’s natural law outlook. This means that the court could create its own common law beyond secular political authority. Second, this discretionary view of the common law was rejected by the case of Erie v. Tompkins, which provided a strong positivists gloss to the question of the status of common law in the federal courts.0 In Erie, the Supreme Court held that federal courts, as courts of limited jurisdiction, cannot create their own independent forms of federal common law. There are, however, limited circumstances where the courts have been required to develop rules of a narrowly formulated common law by necessity doctrine. Additionally, it has become more apparent that the role of the federal courts in the making and application of international law are in effect applying international law as a form of the common law. It is generally accepted that there is an international law as a part of federal common law, Erie notwithstanding. Essential to the Court’s analysis reflecting judicial caution is the problem of the separation of powers and the management of foreign relations. In other words, determining how far the judiciary might go in creating private causes of action in international law without compromising the powers held by the executive and legislature branches. The court reasons that federal courts “have no Congressional mandate to seek out and define new and debatable violations of the law of nations, and modern indications of Congressional understanding of the judicial role in the field have not affirmatively encouraged greater judicial creativity.” The court notes, however, the clear mandate of Torture Victim Protection Act of 1991 which “establishes an unambiguous modern basis for federal claims of torture and extrajudicial killing.” The Court also notes that in the legislative history there is remark that “§ 1350 should “remain intact” to permit suits based on other norms that already exist or may ripen in the future into rules of customary international law.” The Court notes that Congress itself has done “nothing to permit such suits.” It perhaps could be indicated that Congress has done nothing to limit the development of § 1350 in the context of human rights claims. The Court therefore reasons that the door is still ajar for a narrow class of cases based on international norms. The Court supports this by stressing its ong history affirming that the domestic law of the United States recognizes the law of nations. The Court recognizes that the United States courts do apply international law as a part of our own law in appropriate circumstances. The Court continues that in the past it has held that “international law is a part of our law and must be ascertained and administered by the court of justices of appropriate jurisdiction as often as 0 Id.0 304 U.S.64 (1938).

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questions of right depending on it are duly presented for their determination.” Moreover, the Court has recognized recently that international disputes implicating U.S. relations with foreign nations are one of the narrow areas in which federal common law continues to exist. The Court reasons as follows: “it would take some explaining to say now that federal courts must avert their gaze from any international norm intended to protect individuals.”

A central concept of normative guidance regarding the role of the courts in the recognition of international law as federal common law for the purpose of § 1350 is the statement of Judge Souter as follows “…we think courts should require any claim based on the present day law of nations to rest on a norm of international character accepted by the civilized world and defined with a specificity comparable to features of 18th century paradigms we have recognized.” A significant problem with this test is whether it is largely a reliant on the 18th century paradigms for purpose of specificity required to define an international tort in violation of the law of nations.

A significant case came before the Second Circuit providing an opportunity to apply the Sosa standards. In Khulumani v. Barclay National Bank, LTD.,0 plaintiff’ sued a corporate defendant claiming that they should be liable under the ATS for aiding and abetting in the tort of apartheid in violation of the law of nations. The lower court held that tortious liability did not extend to corporations whose business practices in South Africa waere seen as aiding and abetting in the policies and practices as well as repression used by the apartheid regime to sustain its power. On one hand Judge Souter lists a number of reasons why the lower courts must be careful in creating new causes of action under the authority of section 1350. Here the Supreme Court suggests that some normative guidance may be gleaned from the context of 18th century paradigms of liability which may have been within the contemplation of Congress. On the other hand, the Court is clear that although the ATS is jurisdictional, the proper interpretation goes beyond a pure jurisdictional gloss. To give it such a narrow meaning the court held would be to render the ATS meaningless. The Court reasons therefore that Congress must have intended that the courts have the power to create limited tort causes of action under the law of nations. This means that the proper interpretation of § 1350 is to give the lower court’s the discretion to recognize and give effect to torts based on wrongs in violation of the law of nations. On the specific facts of Sosa, a rather short period of arbitrary detention does not give rise to liability under the ATS. However, the Court seems to at least imply that the nature of the declaration must be of sufficient gravity, in addition to meeting the test of universality and definition in terms of the statute.

0 504 F.3d 254 (2d Cir. 2007)

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The trial judge in Khulumani focused his attention on most exclusively on thae part of Sosa which stresses caution and limitation in the creation of actionable claims under the ATS. That conclusion is supported by the court’s reasoning that apartheid does not meet the standard of definability. Moreover, apartheid appears to represent a problem that is less juridical and more political. The court was especially antagonistic to the claim that private sector corporations could be liable for the activities of the apartheid state to the extent that they aided and abetted in the policies and practices of apartheid when doing business in South Africa. The central issue for the Second Circuit on appeal was the district court’s ruling that under the ATS aiding and abetting was not a recognizable theory of liability. Two judges on that court held that aiding and abetting was a recognizable theory of liability. According to Judge Katzman, Sosa required that the courts examine scope of liability questions from the perspective of international law. Looking to the Rome Statute0 of the international criminal court, Judge Katzman concluded that aiding and abetting liability is an accepted theory of secondary liability. Under the Rome Statute, it is the equivalent of rendering aid to someone who commits a crime. Judge Hall, who joined in the majority, also concluded that Sosa requires an examination of customary international law to determine the standard of ATS liability. However, he suggested that the standards of accessory liability should be based on U.S. domestic law. To this end he maintains that the proper test is in the Restatement Second of Torts Section 876(b). According to the Restatement one aids and abets in tortious conduct “if he knows that the other’s conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other.” This standard merely requires mens rea with regard to general knowledge, while the Rome Statute mens rea requires specific intent. Judge Korman dissented. In his dissenting opinion, however, he suggested a preference for Judge Katzman’s test on aiding and abetting.0

The circuit court’s focus on the issue of aiding and abetting corporate liability prevented it from clarifying other aspects of the Sosa, in particular its implication for characterizing apartheid as a tort in violation of law of nations under the ATS. We therefore draw on substance of two amicus briefs filed with the Second Circuit during the period prior to the appellate hearing. These briefs explore the problem that Sosa represents in terms of the guidance of an 18th century legal paradigm for actions under the ATS. Second because the judges, including the trial judge, implied some reservations and prudential misgivings about the idea of apartheid as a tort in violation of the 0 (July 17, 1998, 2187 U.N.T.S. 90, Art 25).0 The majority’s decision in Khulumani that aiding and abetting is a valid theory for corporate ATS liability finds support in a number of other cases. Almog v. Arab Bank, PLC, 471 F. Supp.2d 257, 287 (E.D.N.Y. 2007); Kiobel v. Royal Dutch Petroleum Co., 456 F.Supp.2d 457 (2006); Presbyterian Church of Sudan v. Talisman Energy, Inc., 453 F. Supp.2d 633, 668 (S.D.N.Y. 2006); Bowoto v. Chevron Corp., No. C 99-02506, 2006 U.S. Dist. LEXIS 63209 (N.D. Cal. Aug. 22, 2006); In re: “Agent Orange” Prod. Liab. Litig., 373 F. Supp.2d 7, 52-54 (E.D.N.Y. 2005). But see Doe v. Exxon Mobil corp., 393 F. Supp.2d 20, 24 (D.D.C. 2005).

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law of nations, we propose to clarify that issue as well. Below is a summary of the central arguments in those amicus briefs.

II. APARTHEID AS A TORT IN VIOLATION OF THE LAW OF NATIONS

A. VIOLATION OF THE RULES OF CUSTOMARY INTERNATIONAL LAW FOR THE TORT OF APARTHEID GIVES RISE TO CLAIMS FOR THE APPROPRIATE CIVIL ACTION IN THE FEDERAL COURTS UNDER THE ALIEN TORT STATUTE.

To determine whether apartheid is an international wrong, and thus whether as an international wrong it is specifically unlawful, requires an analysis of what apartheid actually is and how it is is operationally defined. By defining apartheid, we can determine whether it is a tort thatviolates international law in light of the practices within the international community and the federal courts. This specific case deals with private economic actors who have allegedly been complicit in the perceived wrongs characterized through apartheid. This complicity is tantamount to a quid pro quo for the receipt of economic preferences for direct and indirect support of apartheid policies and practices, which resulted in grave human rights deprivations. These apartheid policies and practices comprise an important aspect of what the international community has outlawed as a matter of positive international law. Thus, the corporations that allegedly directly and indirectly aided and abetted the implementation of the policies and practices of apartheid were in fact complicit in the wrongs for which the plaintiffs have suffered damages. An authoritative study done in 1975 concluded as follows: “So long as [the corporations] are present in South Africa and conducting normal business activities, American firms remain subject to charges of assisting in the maintenance and strengthening of apartheid.”0 The study was done in consultation with many corporations doing business in South Africa and the corporations were fully cognizant of the meaning of apartheid.0

We submitted that no Herculean effort of pleading is needed to state a claim for relief in clear and unambiguous terms that apartheid is unlawful in international law. Indeed, the unlawfulness of apartheid is firmly established in customary international law, which is a part of federal common law. The principle is established that wrongs characterizable as having a tortious character may be appropriately adjudicated in the federal courts. To the extent that the District Court was seemingly confused about what apartheid actually is (“a cornucopia of horrible things”) not having been condemned unlawful in international law, the Center respectfully seeks to address these precise questions. (1) What is apartheid? (2) Why is apartheid a wrong in 0 Donald McHenry, United States Firms in South Africa: Study Project on External Investment in South Africa and Namibia (South-West Africa), 37 (Africa Publications Trust, The African Studies Program, Indiana University, Bloomington Indiana 1975).0 Id. at 1-2.

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international law? (3) Why does it have delictual or tortious character? (4) Why is it appropriate for United States federal courts to adjudicate the international tort of apartheid formulated as a claim for with the federal courts are suitable instruments for giving relief?

B. APARTHEID IS DEFINED WITH SUFFICIENT SPECIFICITY TO ESTABLISH A CIVIL ACTION FOR TORT UNDER THE ATS.

What is apartheid? Apartheid was invented by the ruling Nationalist government of South Africa in 1948. The term apartheid is a neologism. The term literally breaks into apart (an English word) and heid (an Afrikaans word that translates into the suffix “-ness”). Apartheid was the policy and practice of South Africa’s ruling party prior to the establishment of a government of reconciliation.0 When the National Party won the elections of 1948, it began a program of systematic racial discrimination designed to cover every facet of human intercourse for which there might be trans-group contact or interaction.0

Beyond these practical and historical definitions, apartheid has meaning as a term with juridical qualities. Apartheid is a systematic pattern of policy and practice for establishing of domination and subjugation based on racial pedigree. It is sustained by the total apparatus of the state. In policy and practice, it deprives the subjugated races of the most fundamental human rights established in international law. That apartheid is characterized by racial domination essentially means that the practice of such domination is more virulent than mere racial discrimination.0 To be more specific, the definition of apartheid under Article 7(2)(h) of the Rome Statute of the International Criminal Court comprises an appropriate starting point from which to begin the definition of apartheid.

The Rome Statute sought to more narrowly define the international law wrong of apartheid in terms of established humanitarian law precepts. The Rome Statute’s definition is useful in the sense that it gives a strong legal imprimatur to those aspects of apartheid that have a criminal law character. It does not, however, cover aspects of wrongs that may be included in a concept civil liability. This would be much broader than the stipulations of positive criminal law. The Rome Statute, which has come into force, has generated a substantial global consensus. Although the United States is not a party to the Rome Statute, many of the principles codified in the Rome Statute, including the anti-apartheid principles, already have the status of 0 THE OXFORD HISTORY OF SOUTH AFRICA VOL. II 1870-1966 (Monica Wilson & Leonard Thompson eds., Clarendon Press 1971) at 374.0 Donald L. Horowitz, A Democratic South Africa? Constitutional Engineering in a Divided Society at 10 (University of California Press 1991).0 M. MCDOUGAL, et al., HUMAN RIGHTS AND WORLD PUBLIC ORDER, 523; Winston P. Nagan, Racism, Genocide and Mass Murder: Toward a Legal Theory about Group Deprivations, 17 NATIONAL BLACK L. J. 133 (Columbia Edition 2004) (“Group Deprivations”).

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customary international law; hence, specific parts of the Statute simply reinforce the legal character of already existing rules of customary international law. As such, the Statute could certainly serve to strengthen the expectation that a particular rule of customary international law is appropriate for enforcement in civil proceedings. With regard to apartheid, the Rome Statute stipulates:

The crime of apartheid means inhumane acts of a character similar to those referred to in…[Article 7(1) of the Rome Statute, including “Murder,” “Extermination,” “Enslavement,” “Deportation or forcible transfer of [a] population,” “Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law,” “Torture,” “Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity,” “Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender…or other grounds that are universally recognized as impermissible under international law…,” “Enforced disappearance of persons,”… and “Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health”], committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups and committed with the intention of maintaining that regime.0

It is important to note that this definition has been criticized for its failure to address other aspects of apartheid, such as the social, economic, and political implications of dividing particular populations and prohibiting inter-group socialization, professional conduct, marriages, and more.0 Accordingly, jurist consults derive from the statute’s definition a coherent and explicit definition of apartheid that serves as the legal predicate for the formulation of a civil action in law.

Apartheid has the characteristics of slavery, caste, and racial discrimination. The fact that apartheid is a more virulent form of racial discrimination does not diminish its legal characterization as prohibited in international law. Slavery and caste are as well prohibited. The fact that apartheid has elements of these prohibited forms of conduct in international law does not mean that apartheid is construed as not having the imprimatur of law to establish its unlawfulness. The fact that a so-called cornucopia of 0 UN General Assembly, Rome Statute of the International Criminal Court (last amended January 2002), 17 July 1998, A/CONF. 183/9, available at: http://www.unhcr.org/refworld/docid/3ae6b3a84.html [accessed 16 April 2012]0 Human Rights Watch, Summary of the Key Provisions of the ICC Statute, available at http://hrw.org/campaigns/icc/docs/icc-statute.htm (last visited January 3, 2011).

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specific prohibited behaviors flow from the policy and practice of apartheid does not mean that the catalog of explicit human rights and humanitarian law violations are immune from the characterization that they are essentially unlawful and that legal remedies may be applied in appropriate circumstances by the courts.

C. APARTHEID IS WRONGFUL AND CORRESPONDINGLY UNLAWFUL IN CUSTOMARY INTERNATIONAL LAW

It is well established in United States practice that the federal courts may directly apply customary international law to appropriate cases for which jurisdiction is established. It is important to note that slavery was once validated by customary international law then outlawed by customary international law. This is conventional international law.

In Prigg v. Pennsylvania, a case involving a fugitive slave, Justice Story noted that conventional or customary international law was in fact used to justify the institution of slavery.0 The Court also noted that customary international law normally applied to the colonies prior to the revolution and continued to do so after the revolution. In short, courts directly applied customary international law to protect private rights unless those rights were changed by explicit statutory intervention.

The central principle regarding the binding force of customary international law in United States courts was firmly established in The Paquete Habana, which holds:

International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for their determination. For this purpose, where there is no treaty, and no controlling executive or legislative act or juricial decision, resort must be had to the customs and usages of civilized nations; and, as evidence of these, to the works of jurists and commentators, who by years of labor, research and experience, have made themselves peculiarly well acquainted with the subjects of which they treat. Such works are resorted to by judicial tribunals, not for the speculations of their authors concerning what the law ought to be, but for trustworthy evidence of what the law really is.0

The District Court does not recognize apartheid as a wrong in customary international law. This is not the case.

0 41 U.S. 539, 563-4 (1842)0 Supra note 81.

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The International Court of Justice (ICJ) is the institution in international law that is charged with the authoritative interpretation of the character and reach of international law. In 1971, the ICJ determined as a juridical matter, that apartheid was simply unlawful in international law.0 In defining that apartheid is unlawful the court stated that apartheid which was promulgated: “[t]o establish …, and to enforce distinctions, exclusions, restrictions and limitations exclusively based on grounds of race, colour, descent or national or ethnic origin which constitutes a denial of fundamental human rights is a flagrant violation of the purposes and principles of the Charter.”0

This authoritative interpretation by the I.C.J. stands in stark contrast to the proposition that apartheid is not a wrong in international law. The specific status from a “binding” perspective of an advisory I.C.J. opinion is not critical. What is critical is that such a ruling from this authoritative source influences the expectations which are crucial to the establishments and maintenance of a customary rule of international law that apartheid is unlawful. The I.C.J. refers to a legal construction of the United Nations Charter.0 The Charter is not self-executing from the perspective of United States domestic courts, but its provisions establish and maintain the generally agreed upon norms of world order and also give rise to the expectations codified in specific customary international law rules.0 The I.C.J.’s ruling in 1971 simply reflected the overwhelming expectation that particular contraventions of international law were juridically unlawful and not merely violations of a form of positive morality.

The severity of the human rights deprivations through apartheid represents a degree of deviance from international legal norms which generated specific initiatives to define apartheid as a crime against humanity. Correspondingly, the effort to criminalize core aspects of apartheid required a narrower definition in order to establish unambiguously those aspects of apartheid that were criminal. Using the policies and practices of the repressive aspects of apartheid, the international community found a striking correspondence to the international crimes prosecuted at Nuremburg.0 The principles by which the Apartheid Convention is based,

0 Advisory Opinion on Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), 1971 I.C.J. 16 (“Namibia Case”).0 Id. at 57.0 Id.0 Baxter, Richard R., TREATIES AND CUSTOM, 129 Recueil des Cours (Hague Acad. Int’l L.) 25, 32-104 (1970-I); Higgins, Rosalyn, PROBLEMS AND PROCESS: INTERNATIONAL LAW AND HOW WE USE IT (1994).0 Charter of the International Military Tribunal, Annex to the Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, Aug. 8, 1945, 82 U.N.T.S. 279, reprinted in 39 Am. J. Int'l L. 257 (Supp. 1945); International Convention on the Suppression and Punishment of the Crime of Apartheid (Apartheid Convention), Nov. 30, 1973, Arts. 1-3, 1015 UNTS 243; Winston P. Nagan and Lawrence Albrecht, "Judicial Executions and Individual Responsibility: The Case of The Sharpeville Six," United Nations Center Against Apartheid/ Notes and Documents, 6: 1-9 (1988), reprinted in Without Prejudice, The EAFORD International Review of Racial Discrimination, Vol. II, No. 2.

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regardless of the specific number of ratifications it received, were principles already established under customary international law.0 The Apartheid Convention is a source of evidence of state practice, giving specific meaning to already accepted principles of international criminal law. Even if it is alleged that there is some novelty in the nature of the repression which characterized apartheid, it could hardly be maintained that no universal consensus exists that apartheid is unlawful or that it can result in wrongs of a tortious character and that remedies in the form of damages are unexceptional for tort claims in the United States.

Given the universal consensus and condemnation of apartheid by the world community,many advocates considered various strategies consistent with international law to eliminate apartheid. A parallel example existing in the case of I.G. Farbin, in which a corporate giant was involved in the “final solution” of Nazi Germany.0 Both the United Nations and individual nation states generated resolutions, declarations, and foreign policy directives designed to end apartheid. These included cultural and academic boycotts, unilateral and collective economic sanctions, arms embargoes, private sector campaigns for corporate disinvestment and divestment from any involvement with and financing of the political economy of apartheid, and selected natural resource sanctions, such as those against oil, precious stones, etc.0 Given the notoriety in the United States of the problems of Polaroid and General Motors in South Africa[One needs background to understand this. The ‘notoriety’ diminishes through time.], and given the specific issues of corporate responsibility and respect for international law, private sector actors) involving themselves in the political economy of apartheid were consistently put on notice as it the unlawful character in international law.0

In the United States, the anti-apartheid perspective expressed itself in the Comprehensive Anti-Apartheid Act of 1986 which imposed economic sanctions on South Africa and threatened sanctions against those who sought to benefit from United States sanctions. The United States foreign relations initiative required by Congress was not unusual in the world community as an expression of policy to support respect for international law and human rights.0 Id.0 Winston P. Nagan, Economic Sanctions, U.S. Foreign Policy, International Law and the Anti-Apartheid Act of 1986, 4 FLA. INT’L L.J. 85, fn 281 (1988) (“Economic Sanctions”); See generally J. Borkin, THE CRIME AND PUNISHMENT OF I.G. FARBIN (1980).0 Winston P. Nagan, “An Appraisal of the Comprehensive Anti-Apartheid Act of 1986,” 5 J.L. & RELIGION 327 (1987); “Economic Sanctions” 4 FLA. INT’L L.J. 156-157.0 See Letter to the Secretary General of the United Nations from The ANC, March 7, 1973, available at http://www.anc.org.za/ancdocs/history/people/nzo/lt030773.html (last visited August 26, 2005); Apartheid and Doing Business in South Africa: General Motors and South Africa , National Council of Churches newsletter, March 1973 issue, available at http://disa.nu.ac.za/articledisplaypage.asp?filename=SeMay73&articletitle=Apartheid+and+Business+in+South+Africa+%2D+General+Motors+in+South+Africa (last visited August 26, 2005).

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Judge Sprizzo listed five specific criteria that he determined should influence the interpretation of the ATS in the light of apartheid as a tort.0 The District Court indicated that apartheid would have to “rest on a norm of international character accepted by the civilized world.”0 The universal rejection of apartheid by the civilized world and its notorious characterization as a norm which violates international law is firmly established. The District Court also refers to the fact that apartheid should be defined with specificity comparable to the features of 18th Century paradigms of law.0 While the District Court reads this as a procedural hurdle, we submitted it is not. Specificity here simply requires the norm to have content necessary for a tort. The District Court, appreciating changes in the common law, must be prudent about creating new law under the statute. By definition, custom is not new law. The role of the court is simply to declare whether the rigorous tests to determine its content, authority, and ubiquity are met. This is clearly already a fact in the instant case.

The District Court expresses appropriate concern for the foreign relation consequences of declaring customary international law. It should be noted, however, that the condemnation of apartheid by the executive branch of the government of the United States has been a long and consistent practice. Moreover, Congress itself makes human rights an aspect of the foreign relations of the United States as indicated in the Foreign Assistance Act of 1961.0 Finally, Congress itself enacted a comprehensive sanctions regime against South Africa based on the fact that apartheid was a violation of international law.0 The foreign relations concerns in this case are indeed minimal. The District Court’s concern that the courts must have a Congressional mandate to declare customary international law is a novel principle of interpretation unsustained by practice.

The prohibition of apartheid meets the exacting requirements of what constitutes a wrong in customary international law. Given the strict standard of the pleadings demanded by the trial court, we submit that the court did not give adequate attention to the specific issue that it had to address, namely whether apartheid is indeed a wrong in international law. A wrong in international law may be categorized as a wrong having a tortious character appropriate for litigation under the ATS. As earlier indicated, this requires us to provide an adequate definition of what apartheid is an indication of its universal condemnation, an indication moreover that the condemnation was meant to have a legal character in international law.

D. APARTHEID IS AN INTERNATIONAL TORT UNDER THE ATS.0 Apartheid Litigation, 346 F.Supp. 2d at 547-8.0 Id. at 547.0 Id. at 547.0 P.L. 87-195, 75 Stat. 424.0 Comprehensive Anti-Apartheid Act of 1986, P.L. 99-440, 100 Stat. 1086.

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Characterizing apartheid as a wrong in international law leaves open the question of whether some its aspects generate liability under civil law because they are, quite simply, torts in violation of the law of nations. The test for a tortious claim under customary international law rests on the rigorous test whether international law itself provides to determine (a) whether there is a wrong; (b) whether the wrong may be fairly characterized as tortious or delictual; and (c) whether the remedies sought is appropriate to the role of a Court of limited jurisdiction. This specific formulation permits us to focus on the exacting tests used to determine what exactly counts as a rule of customary international law. That test establishes the principle accepted in the federal Courts that customary international law must demonstrate a universal consensus, that the relevant rule must be definable, obligatory, and universally accepted.0 The international law test is focusing on the opinio juris sive nessicitatis as well as the practice among states that they must have a certain uniformity, consistency and therefore coherence as claim appropriate for adjudication in federal courts.0

The definition of apartheid encapsulates tort liability when it is appraised in terms of its component elements. These elements may also give rise to distinct civil actions in tort. Nothing in international law stipulates that apartheid defined inclusively cannot be a distinct tort or that specific practices mandated by apartheid may not give rise to specific forms of tort liability. To illustrate, torture might simultaneously be comprised of the elements of assault and battery. That does not make torture less of a category of liability because the definition of torture may well include these elements. This also applies to apartheid.

The central challenge required by customary international law is that the wrong must first be definable. Once it is, its core elements can then be explained, thus meeting the test of definability. Notwithstanding, the District Court mistakenly dismisses apartheid as a “veritable cornucopia of international law violations.” It insisted that only a single form of action is mandated by the pleading requirements of the statute (as interpreted). We note, parenthetically, that the District Court concedes the existence of widespread international law violations. It seems the rejection of these violations as actionable is also based on the assumption that they may include multiple claims of civil liability. It is for the discovery process and other pre-trial mechanisms to determine the precision of matters that must be adjudicated at trial.

Accordingly, we respectfully submitted that the District Court’s approach to the definition of apartheid, its relationship to customary international law, its relationship to the system of pleadings required in 0 Forti, supra at X.0 North Sea Continental Shelf Cases, 1969 I.C.J. 3 (Feb. 20, 1969) (confirming current international practice and which parallels the practice in the federal courts).

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federal litigation, represent egregious errors of construction and interpretation of both the procedure and the substance of litigating customary international law claims in the federal courts of the United States.

E. UNITED STATES FEDERAL COURTS ARE A PROPER FORUM TO ADJUDICATE A CIVIL ACTION FOR THE TORT OF APARTHEID IN INTERNATIONAL LAW

A central concern forUnited States courtshas been exactly what role its courts should play in the prescription and application of international law. Historically, United States courts have contributed significantly to the development of international law. Although the complexities of contemporary world order has required these courts to be more self reflective in defining their appropriate role in in adjudicating international law in United States jurisprudence. Contemporary international law is still significantly decentralized and while the development and prescription of rules take place at the international level, specific application and enforcement are often matters of state practice. Issues which are peculiarly suited for judicial dispute settlement include the rights of individuals reflected in both United States constitutional law and in international law.

The District Court stresses the fact that the courts must be cautious about creating private rights based on international law. There is a problem with the District Court’s ambiguity on this matter. A court’s role is not so much to create private rights, but to provide remedies for rights which already exist. Moreover, international law has long permitted individuals to assert rights in appropriate circumstances. An important issue under continuing scrutiny is whether a U.S. domestic court is the appropriate institution to provide such relief. Domestic courts have long played a role in the prescription and application of international law and continue to do so. The specific concern regarding decisions based on private rights, which might have collateral consequences, is significantly undermined by the fact that Congress enacted the Foreign Sovereign Immunities Act in order to treat states like private actors in matters of commerce and civil wrongs.0

Apartheid used race as a marker to determine who would dominate and who would be subjugated. The subjugated class experienced the deprivation of all rights commonly associated with the International Bill of Rights.0 An originalist might freeze the statute in time to 1789, which effectively means that an international law wrong such as slavery would be excluded from liability under the statute and a corporation could theoretically use slave labor abroad and be immune from liability in United States federal courts.0 With regard to caste, international law links dissent-0 Foreign Sovereign Immunities Act of 1976, 28 U.S.C. §§ 1602-1611 (Supp. 1989).0 Namibia Case, 1971 I.C.J. 16.0 J. BORKIN, THE CRIME AND PUNISHMENT OF I.G. FARBIN (1980).

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based discrimination to the general prohibition of state-driven practices which rob particular classes of people of the freedom of choice. Apartheid in policy and practice repudiates the values in the United States Bill of Rights as well as the values in the Universal Declaration of Human Rights for which there is a significant overlap.0

F. CONCLUSION OF AMICUS ARGUMENT

The District Court’s use of a heightened pleading standard that rejected apartheid as a wrong of a tortious character under customary international law for the purpose of the ATS is an erroneous construction of the appropriate pleading standard which must be governed by Rule 8 of the Federal Rules of Civil Procedure. This erroneous construction of the text led to the court’s dismissal of the complaint on an inaccurate construction of the Sosarequirements regarding the interpretation of the ATS. Moreover, the District Court’s general construction of the requirements of customary international law is incompatible with practices of both the United States and the international community’s rigorous standards governing what a rule of customary international law actually is. The District Court also misconstrues the proper role of the federal courts in protecting rights in civil proceedings in which rights are universally prescribed under customary international law. More egregiously, the District Court ignores the notorious uniformity of practice in both international law as well as the foreign relations law of the United States which has held in unambiguous terms that the policy and practice of apartheid is a repudiation of the most fundamental principles of international legality and a complete rejection of the Rule of Law which United States courts are obliged to promote and defend.

G. SECOND AMICUS ARGUMENT: THE LANGUAGE OF THE ATS CALLS FOR A THRESHOLD DETERMINATION OF WHAT A FEDERAL COMMON LAW TORT IS IN VIOLATION OF THE LAW OF NATIONS.

The second argument put before the Court focused on the trial court’s use of a strict pleading standard assumed to be characteristic of an 18th

century paradigm of law.

In Sosa, Justice Souter first held that the Alien Tort Statute does not merely grant jurisdiction, but it also recognizes causes of action for torts based on violations of international law including customary international law. The Court also required that judges exercise extreme caution when dealing with and potentially granting recognition to such claims. Specifically, the Court required that the only permissible claims under the ATS are those based on: 1) well-established customary international law and/or 2) treaties 0 Elizabeth Landis, Human Rights in Southern Africa and United States Policy in Relation Thereto, in Hearings on International Protection of Human Rights before the Subcomm. on International Organization and Movements of the House Comm. on Foreign Affairs, 93d Cong., 1 st Sess. 946-64 (1974).

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that are self-executing or are otherwise ratified by the United States and implemented by appropriate United States legislation.

The District Court was ambiguous about its reference to the formulation of claims under the ATS which had to be in some measure respectful of “18th Century paradigms.”0 This reference to “18th Century paradigms” creates ambiguity as to whether the reference is specifically to the technical aspect of pleadings or to the special techniques needed to formulate the substantive sufficiency of a customary international law rule. We focuse on the assumption that the reference is to the strictness of pleadings. We submit this is also an assumption adopted by the District Court. We reject reading into Sosa this assumption because it is incompatible with the pleadings requirement of the Federal Rules of Civil Procedure. We submit pleading such claims does not require a stricter standard of pleadings as mandated by the District Court in dismissing the claim in the instant case.

An appropriate interpretation and construction of the ATS may not implicitly rely on the procedural practices that have in fact been abolished. To the extent that the District Court reads into the pleadings, the requirement of either the “forms of action,” or the system of “code pleading,” which uses the phrase, “causes of action,” we respectfully draw the Court’s attention to the fact that the requirements that these forms mandate for pleadings have been abolished by the promulgation of the Federal Rules of Civil Procedure in 1938. The Institute brings to the attention of the Court a central problem in the judicial interpretation, application, and enforcement of the ATS. That problem is whether the ATS must be interpreted according to the procedure exactly as it was created as part of the Judiciary Act of 1789 or whether it must be construed in the light of contemporary standards of procedure.

The Institute files this brief in support of two propositions. First, the Court should confirm that the ATS must be construed in light of contemporary standards of procedure, particularly the rules governing Federal pleadings. Second, the Court should establish that the judicial appraisal of the ATS should be made by considering the factors that are applied by the international community’s appraisal of apartheid and define its tortious character accordingly. Those factors parallel the factors discussed in Sosa for the appraisal of apartheid as a tort in violation of the law of nations.

H. THE LANGUAGE OF THE ATS CALLS FOR A THRESHOLD DETERMINATION OF WHAT A FEDERAL COMMON LAW TORT IS IN VIOLATION OF THE LAW OF NATIONS

0 In re South African Apartheid Litigation, 346 F.Supp. 2d 538, 549 (S.D.N.Y. 2004) (“Apartheid Litigation”) quoting Sosa, 124 S. Ct. at 2762.

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The current text of the ATS reads as follows: “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 ATS assumes a procedural context based on the forms of action characteristic of common law at that time. It also assumes a jurisdictional element (subject matter jurisdiction) which is tied to the system of pleadings.

The pleadings and the jurisdictional component shape the nature of the action in tort under the ATS. The complex relationship between procedure (including pleadings rules) and substance is well documented in practice.0 Procedural rules are sometimes classified as substantive to the extent that they shape and determine the nature of the legal action and its remedy.0 These cases stress the importance of a proper judicial appreciation of the nature of a legal claim in the context of the ATS, with its jurisdictional stipulation, its implicit pleading assumptions, and influence these characterizations have on the sufficiency of a civil action, such as a tort in violation of the law of nations.

Appellant’s brief challenges the standard used by the District Court to determine the sufficiency of the complaint, namely that apartheid is a tort under international law and that it is appropriately actionable under the statute. Apartheid Litigation, 346 F.Supp. 2d at 546-7. The appellant’s brief correctly argues that the District Court erroneously applied a higher procedural pleading than is mandated by Rule 8 of the Federal Rules of Civil Procedure. Id. at 547-8. The application of this standard resulted in the Court’s erroneous dismissal of the claim. The Institute notes that the implicit procedural standard of pleadings under the ATS could not, at the time it was drafted, have contemplated “claims” about “civil actions” under the Federal Rules since these rules did not exist. Therefore, there is a specific legal question as to whether the rules of procedure and pleading, which were in place at the time the statute was enacted, are rules which must, however implicitly, inform the sufficiency of a complaint under the statute or whether it must be considered in terms of the current rules of pleadings in the Federal Rules of Civil Procedure. The Court’s reliance on a stricter standard of pleading seems to accept implicitly the principle that somehow a different pleadings requirement is mandated for the statute to ensure congruence with an alleged original intent—if this implies an 18th Century paradigm—presumed to repose in the statute at the time it was enacted.

I. THE LANGUAGE OF THE ATS SUPPORTS FINDINGS OF SUBJECT MATTER JURISDICTION AND A CIVIL ACTION, REGARDLESS OF

0 See Grant v. McAuliffe, 41 Cal.2d 859 (1953); Kilberg v. Northeast Airlines, Inc., 9 N.Y.2d 34 (1961); Walter Wheeler Cook, “Substance” and “Procedure” in the Conflict of Laws, 42 YALE L.J. 333, 344 (1933); Winston P. Nagan, Civil Process and Power: Thoughts from a Policy Oriented Perspective, 39 FLA. L. REV. 453 (1987).0 See Walker v. Armco Steel Corp., 446 U.S. 740 (1980)

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WHETHER A TEXTUALIST OR A NON-TEXTUALIST CONSTRUCTION AND INTERPRETATION IS EMPLOYED.

From a textual standpoint, it is arguable that the language of the ATS supports findings of both subject matter jurisdiction as well as civil actions. Again, the ATS grants jurisdiction for cases where torts are “in violation of the law of nations.” The phrase in violation arguably creates an explicit claim for victims of international tortfeasors in certain circumstances.

It is certainly possible to argue that such as explicit claim is not created by the language in question. Moreover, from a non-textualist perspective, cases have been tried in which Courts have found that a plaintiff was not required to assert an explicit claim in order to bring a claim under the ATS.0 The claims before these courts were not predicated on the “in violation” language of the ATS. Instead, the sufficiency of each claim was independently defined by each Court, based on the nature of the international tort on which the claim was based. We submit that this is the appropriate interpretation of the ATS. Were it not so, slavery—despite its continued existence in many forms today—might not have attained its contemporary status as universally condemned in state practice and considered to be a criminal matter in international law since the 19 th

Century. In other words, if we took the construction of the originalists, thus freezing the statute in time to 1789, an international law wrong such as slavery would be excluded from liability under the statute and a corporation could theoretically use slave labor abroad and be immune from liability in United States federal Courts, if such a construction were to prevail.

In Filartiga, the court found that to ascertain the nature of the action for which the ATS granted subject matter jurisdiction, it was necessary for the Court to refer to substantive principles of international law. Specifically, this Circuit Court straightforwardly determined that the ATS provided subject matter jurisdiction and then remanded the case for further determination with regard to the particular civil action.0. On remand, the District Court remarked on the importance of respect for the global community’s interests and that even if certain actions do not violate the laws of a particular foreign state, implied claims may yet exist under international law. This point was also made clear in Forti. The Court in Forti stated:

It is unnecessary that plaintiffs establish the existence of an independent, express right of action [to apply the ATS], since the law of nations clearly does not create or define civil actions, and to require such an explicit grant under international law would effectively nullify that portion of the statute which confers

0 Kadic v. Karadzic, 866 F.Supp. 734 (S.D.N.Y. 1994), Forti v. Suarez-Mason, 672 F. Supp. 1531 (ND Cal. 1987), Xuncax v. Gramajo, 886 F.Supp. 162 (D. Mass. 1995), Linder v. Portocarrero, 963 F.2d 332 (11th Cir. 1992).0 Id. at 887-89.

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jurisdiction over tort suits involving the law of nations... Rather, a plaintiff seeking to predicate jurisdiction on the [ATS] need only plead a ‘tort…in violation of the law of nations.0

Certain fundamental human rights are enforceable in a United States Court and while not every such violation creates a juridically cognizable tort, the Forti decision established that where the international tort is both clearly defined and, for practically purposes, universally condemned, it is considered a self-executing civil claim.0 Further, the U. S. State Department has contended that all U. S. Courts must recognize certain international law violations perpetrated by a state because “a refusal to recognize a private cause of action in these circumstances might seriously damage the credibility of our nation's commitment to the protection of human rights.”0

The Filartiga decisions effectively give contemporary juridical meaning to the ATS. Following Filartiga I and II, the United States judiciary recognized various torts as actionable under the ATS, including genocide,0 war crimes,0 summary execution, arbitrary detention,0 disappearance,0 cruel, inhuman or degrading treatment,0 and wrongful death.0

J. IT IS WITHIN THE COMPETENCE OF THE FEDERAL JUDICIARY TO DETERMINE WHAT IN FEDERAL COMMON LAW ADJUDICATION IS A TORT AND IT IS SIMILARLY WITHIN THE COMPETENCE OF THE JUDICIARY TO DETERMINE THE APPROPRIATE PLEADING FORM IN WHICH THE RIGHT MIGHT BE VINDICATED

The specific language of the ATS settles the jurisdictional question of whether an international law tort may be adjudicated in a Federal District Court. By necessary implication in the ATS, Congress has granted the authority to provide a remedy that is consistent with the role of an Article III Court. The specific question raised by the majority opinion in Sosa, is whether the Congress gave the court the additional competence to create forms of tortious liability other than the possible forms that may have existed in 1789. One obvious response to this concern is that Congress would have specified in the statute the specific torts in international law that would fall within the jurisdiction of the Courts under the ATS. Indeed, these specific 0 Id. at 1539 (emphasis added).0 See id. at 1540-41.0 See Memorandum for the United States, Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980), reprinted in 19 I.L.M. 585, 604 (1980) (referring specifically to causes of action arising out of circumstances of official torture) (emphasis added).0 Kadic, 866 F.Supp. at 7340 Id. at 7340 Xuncax, 886 F.Supp. at 1620 Id. at 162.0 Id. at 1620 Linder, 963 F.2d at 332

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international wrongs are few in number (offenses against ambassadors, violations of safe conducts and piracy). It is important to note that Congress did not do so. It should also be parenthetically noted that these wrongs were partly criminal and if actionable under the statute would have tortious as well.

There is an additional reason for Congressional silence: the definition and development of tort law has historically not been primarily the province of the legislature. The common law, including the law of torts, is largely a product of judge-made law. Congress in granting this power to the federal Courts would have been fully aware of the fact that the Courts would have to approach the question of what a tort is in the terms of the particularity of common law adjudication and especially the limits imposed by the forms of action in pleadings. It cannot therefore be argued that the statute would involve Congress in the novel act of freezing international law wrongs to a specific date and time. The historical development of tort law repudiates this.

There is, moreover, a compelling inference that Congress chose not to include specific, intentional wrongs in the ATS simply because it could easily have done so. Indeed, it could still be done. Furthermore, Congress legislated the civil liability component into the Alien tort statute in 1940.0 “The term civil action was substituted for the word suits in view of Rule 2 of the Federal Rules of Civil Procedure.”0 If there is a plausible reason why Congress neither restricted the statute in its own text nor revised it afterwards, it may lie in the fact that Congress fully understood the lawmaking relationship between legislation, which is molar, and judge-made law, which is molecular. Congress was prudent to leave this matter for the Courts. Given the expansion of the concept of a claim in the context of federal civil litigation, federal law provides effective counter policing of the litigation to ensure that the claims that are actually litigated meet the criteria appropriate to the role of domestic Courts in the making of the application of law.

In appraising liability for torture in the Torture Victims Protection Act, Congress was fully aware of Filartiga and its specific recognition of an international tort of torture. Congress therefore had ample opportunity to abrogate the statute or to confine it to the forms of wrongs exclusively recognized in 1789. International law is a species of multi-state law and shares a conceptual affinity with private international law. Private international law recognizes the interpretation, application, and enforcement of tortious liability across state and national lines as a routine matter.0 Although its doctrines have been more effectively developed in the context 0 “1. Prior law and revision: Based on title 28, U.S.C., 1940 ed., § 41(17) (Mar. 3, 1911, ch. 231, § 24, P 17, 36 Stat. 1093).0 28 U.S.C. § 1350 fn. 1.0 See R. WEINTRAUB, COMMENTARY ON THE CONFLICT OF LAWS (1980); Winston P. Nagan, Conflicts Theory in Conflict: A Systematic Appraisal of Traditional and Contemporary Theories, 3 N.Y. J. INT’L & COMP. L. 343, 464 (1982).

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of domestic litigation, the practice of the private international law of torts suggests that the competence to prescribe for international torts is a competence well within the appropriate role of the Federal Courts in the international law environment. We submit that our effort to clarify the appropriate construction and interpretation of the ATS provides a clearer basis for determining objectively the nature of tort liability under customary international law under the ATS.

III. THE HISTORICAL UNDERPINNINGS OF THE ATS YIELDS CLEAR GUIDANCE REGARDING THE SCOPE OF ITS SPECIFIC PRESCRIPTION AND APPLICATION IN PARTICULAR CASES

In Sosa, the Supreme Court held that ATS effectively opens the door to certain “private causes of action for certain torts in violation of the law of nations.” The Sosa decision made no specific reference to the mechanics of the relationship between pleadings, procedure, and the construction of the substantive law under the ATS. [Cite or is this the author’s opionion?]Despite the lack of any explicit analysis, the holding in Sosa must, however, assume the existence of such a legal relationship. Indeed, the Apartheid Litigation District Court relied on Sosa to implicitly validate a stricter pleading standard.0 The language specifically used in Sosa does not mandate this. The specific language reads as follows: “[W]e think courts should require any claim based on the present-day law of nations to rest on a norm of international character accepted by the civilized world and defined with a specificity comparable to the features of the 18th Century paradigms we have recognized.”0 The phrase “[W]e think” is unusually speculative for the Supreme Court. And the phrase “features of 18th Century paradigms” is unusually vague. Indeed, the term paradigms itself makes no obvious reference to the system of pleadings and the nature of a civil action at law as part of the 18th Century paradigms. The District Court quoting this language explicitly uses it to justify a standard of pleadings implicitly characteristic of the strict forms characteristic of the 18th Century rather than the explicit requirements of the Federal Rules of Civil Procedure. The concept of an 18 th

Century law paradigm is ambiguous. It is therefore in the public interest that this issue be clarified. The Institute seeks to provide the Court with the relevant historical insight into the relationship between pleadings, procedure and the construction of the substantive law under the ATS in order to clarify precisely the pleadings standard that the Court is mandated to use under the Federal Rules of Civil Procedure.

The Institute respectfully submits that the construction and interpretation of the ATS in the context of the framework of an earlier system of pleadings led to the Court’s erroneous construction of the rules of procedure because the reasoning of the Court implicitly assumes that the 0 Supra, note at 547.0 Supra, note at 2761-62

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theory of liability to the case is significantly influenced by the procedural and substantive context of 1789. The District Court’s erroneous construction of the pleadings, we submit, is based on the assumption that the substantive law of 1789 carries with it the procedural rules of that period or is influenced by a strict construction of the procedural rules characteristic of the forms of pleadings, which have been abolished. In short, an approach that relies too narrowly on a version of original intent associated with an 18th Century paradigm, assumed to be implicit in the ATS. We submit this is an improper approach to the interpretation of the statute. The proper approach is to interpret the substantive provisions of the statute exactly as required by Rule 8 and Rule 1 of the Federal Rules of Civil Procedure.

The Institute respectfully submits that had the District Court been faithful to the intent behind the Federal Rules of Civil Procedure Rule 1 and 8 the District Court’s construction of the sufficiency of the claim would not have been erroneous. Construing federal statutes enacted prior to 1938 consistent with the pleadings required by the Federal Rules of Civil Procedure is an important matter of the public interest and important in the context of the instant case.

A. GENERAL REMARKS ON THE RELATIONSHIP BETWEEN SUBSTANCE AND PROCEDURE

The relationship between substance and procedure is a matter of historical difficulty in the common law. Substantive law has developed through the rules of procedure. The issuance of a writ was historically essential for the characterization of a legal form of action and a remedy. The system of pleadings available to a litigant when the ATS was enacted was the system of common law pleadings based on the “forms of action.”0 To the extent that the forms of action required for a pleader in 1789 influence the stricter standard of the District Court, it should be noted that the forms of action have been abolished. The abolition of the forms of action does not require that the statute itself be abolished by construction and interpretation.

In Thompson v. Allstate Ins. Co., Judge John Minor Wisdom stated the following:

Ancestor worship in the form of ritualistic pleadings has no more disciples. The time when the slip of a sergeant’s quill pen could spell death for a plaintiff’s cause of action is past. Under Federal Rules of Civil Procedure, a complaint is not an anagrammatic

0 F.W. Maitland, Equity Also: The Forms of Action at Common Law: Two Courses of Lectures, Lecture I (A.H. Chaytor & W.J. Whittaker, eds., Cambridge University Press, 1910).

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exercise in which the pleader must find just exactly the prescribed combination of words and phrases.0

Similarly, in Russell v. United States, the Supreme Court quoted the Chief Judge Clark of the Second Circuit “who speaks with special authority in procedural matters.”0 Chief Judge Clark stated in United States v. Lamont,:

Pleading, either civil or criminal, should be a practical thing. Its purpose is to convey information succinctly and concisely. In older days the tendency was to defeat this purpose by over elaboration and formalism. Now we should avoid the opposite trend, but of like consequence, that of a formalism of generality. There seems to be some tendency to confuse general pleadings with entire absence of statement of claim or charge. But this is a mistake, for general pleadings, far from omitting a claim or charge, do convey information to the intelligent and sophisticated circle for which they are designed.0

To the extent that the trial court was influenced by the formulaic rigor of common law or code style pleadings, we respectfully submit that reliance on such sources is an error of law because the Court is governed by the pleadings required in the Federal Rules of Civil Procedure. In short, the District Court’s stricter standard is not mandated by Rule 8 and cannot be supported by the stricter standards of previous systems of pleadings which have been abolished.

The pleadings standard required traditionally by the system of code pleadings that replaced the forms of action also requires a stricter standard of pleading. The drafters of the Federal Rules of Civil Procedure surveyed the experience with code pleadings and determined that the stricter standards required at the threshold of a lawsuit simply provided for legal chaos in civil proceedings. The loose use of such terms as cause of action, evidentiary fact, ultimate fact, and conclusions of law, developed a “compartmentalization” which proved to be a “chimera.” In Rannels v. S.E. Nichols, Inc., Judge Aldisert stated that it was inappropriate for the federal lower Courts to resurrect the stricter standards of code pleadings.0 The court ruled, citing the Supreme Court in Conley v. Gibson,0, that the Federal Rules of Civil Procedure, which had simplified pleadings, were not to be replaced by the stricter standards of the code system.0. In Conley, the Court stated explicitly “The Federal Rules of Civil Procedure reject the approach that

0 476 F.2d 746, 749 (5th Cir.-OLD 1973),0 369 U.S. 749, 785 n5 (U.S. 1962)0 236 F.2d 312, 317 (2d Cir. 1956)0 591 F.2d 242 (3d Cir. 1979).0 355 U.S. at 47-480 2A Moore’s Federal Practice, Par 8.13, at 1692-93

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pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits.” The lower Court’s use of a stricter standard in the pleadings, influenced by an attempt to determine the original intent behind the statute associated with an 18th Century paradigm, misunderstands the principle that the earlier approaches to procedure governing claims in the Federal Courts were abolished and replaced by the Federal Rules of Civil Procedure. The change in the nomenclature of pleadings from the terms form of action, cause of action, have been replaced by the term claim, qualified by the phrase “indicating that the pleader is entitled to relief,” appropriate to civil proceedings in the Federal Courts. The pleader is entitled to specify the statement of a “claim upon which relief can be granted,” and we parenthetically note, not a “form of action” or a “cause of action.” The specific application of this insight to the ATS is that the concept of a tort in violation of the law of nations cannot procedurally be frozen to the forms of action of 1789 or the system of code pleadings developed in the mid 19th Century. Therefore, any heightened standard of pleading in applying the ATS would simply be applying law that has been abolished since 1938.

B. SUBSTANCE AND PROCEDURE AND THE APPLICATION OF THE ATS

The Institute submits that a specific clarification of the interrelationship of substance and procedure in the context of this statute will clarify the appropriate standard to be used in cases pled under the ATS and will consequently serve the public interest in bringing clarity and certainty to this area of the law in this class of cases. We respectfully request the Court’s indulgence as we present the background facts and the analysis for the proper interpretation of the ATS in Federal Courts.

Erroneously using Sosa as authority, the District Court ruled that the ATS must in large measure be interpreted in the context of the date within which it was enacted.0 Sosa does not mandate this. Moreover, this formulation undermines and possibly misdirects the appropriate standard of interpretation for the ATS. This approach requires the Court to do a historical fishing expedition with regard to either the forms of action existing in 1789, or more charitably, the system of code pleadings that replaced the forms of action at common law. In either case, neither the forms of action, nor 19 th

Century causes of action provide us with any practical guidelines as to the meaning of the ATS. A Court is therefore confronted with a critical question of the appropriate standard used to understand the substantive law of the ATS in the light of its appropriate procedural context. A standard of interpretation, which requires the Court to elucidate the procedural context of 1789, effectually undermines the plain meaning of the statute. It is a canon of statutory construction that if there is a means of construction that 0 Supra, note at 547.

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gives meaning to a statute, it should be preferred to a canon that denudes a statute of its rational meaning.

The statute must be construed and interpreted in the context of claims in law as they historically and currently exist in interpreting Federal Rules of Civil Procedure Rule 8. The civil action in the Federal Rules of Civil Procedure clearly includes claims based on customary international law as well as the law of treaties to which the United States is a party. The development of case law under the ATS, which has involved the recognition of certain human rights as having the character of customary international law as well as being actionable as torts under the statute has given Congress ample opportunity to restrict or abolish the ATS. In fact, the statute has in other contexts been affirmed by Congress.0 Moreover, the statute was revised in 1940 to make it consistent with the Federal Rules of Civil Procedure. Clearly Congress ostensibly intended that there be no ambiguity with regard to the relationship between the ATS and the Federal Rules of Civil Procedure.

C. CONCLUSION ON THE ARGUMENT RELATING TO STRICT PLEADINGS

The Institute respectfully submits that the Court’s interpretation of the ATS’s procedural context, using a stricter pleading standard influenced by abolished forms of pleadings, leads the Court to a misinterpretation of what the Federal Rules of Civil Procedure requires the Courts to do in the application of pleadings. By reading a subjective and unsubstantiated standard into the meaning of Rule 1 and Rule 8, the Court in effect is vesting itself with a discretion incompatible with the rules it is obliged to follow. This undermines the appropriate level of judicial restraint required of the Court. We summarize our arguments as follows: (1) The Federal Rules of Civil Procedure have never been construed to be purely prospective; (2) Substantive law in existence prior to 1938 must be construed rationally in the light of the present day system of pleadings that the Court is duty bound to apply; (3) Applying the Federal Rules of Civil Procedure provides a firm foundation for determining whether a claim based on customary international law is one that has the properties of a civil law claim for which traditional remedies are available; (4) Principles governing the interpretation of statutes mandate that when one construction of a statute depreciates or minimizes it and another gives it full rational effect, the Court is obliged to use the standard which supports and does not undermine the text of the ATS; and (5) The ATS contains both a procedural element and a substantive element. Assumptions about the original procedural “requirement” must be discarded and the statute must be explicitly read in the light of current pleading rules. Those rules may well shape the contours of the concept of the claim in customary international law in which the pleader claims he is entitled to relief. The rules of pleading cannot therefore be read to exclude claims based on contemporary international law because custom may not 0 Torture Victims Protection Act, 28 U.S.C. § 1350

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have developed into a rule of international law in 1789. The practice of law has been replete with the construction of statutes prior to 1938 which have been interpreted in the light of the contemporary assessment of what claims are assessable in law.

These points do not mean that an understanding of the history and practice under a statute are not important to its construction, but these understandings must take into account a current understanding of the law (including procedural law) and contemporary practice.

The plaintiff’s won on the issue of aiding and abetting and the case was remanded for the plaintiffs to re-plead the apartheid claim under Section 1350 of the ATS.

D. HAVE THE COURTS RETREATED FROM THE PROMISE OF HUMAN RIGHTS LITIGATION IN SECTION 1350 OF ATS?

In Arar v. Ashcroft,0 414 F.Supp.2d 250 (E.D. N.Y. 2006), a Syrian-born, Canadian citizen, Maher Arar (“Arar”), brought a lawsuit against the United States and several U.S. government officials pursuant to the Torture Victim Protection Act (“TPVA”), 0 and the Fifth Amendment to the United States Constitution. In the lawsuit, Arar alleges that after being detained in the United States, he was removed to Syria for the express purpose of being interrogated under tortured. However, the U.S. government moved to dismiss the case by asserting the “state secrets” privilege, claiming that the reason Arar was deemed a member of Al Qaeda and sent to Syria, instead of Canada, are “state secrets.” The government argued that litigating the matter would disclose state secrets, revealing intelligence methods and harming national security and foreign relations. Although plaintiff countered that his case could easily be proven without state secrets being revealed, and even if such information were required to establish a defense, procedural safeguards could protect such information. Even so, Judge Trager of the U.S. District Court for the Eastern District of New York dismissed Arar’s claims against U.S. officials for deporting him to Syria where he was tortured and arbitrarily detained. Judge Trager found that even if such conduct violates U.S. treaty obligations or customary international law, national security and foreign policy prevented him from holding the officials liable for carrying out an extraordinary rendition.

On December 12, 2006, Arar appealed and argued before the Court of Appeals for the Second Circuit on November 9, 2007. The divided court upheld the lower court’s dismal on political question grounds. The majority found that adjudicating Arar’s claim would hamper national security and foreign policy, a ruling which the dissenting judge found gives governmental 0 414 F.Supp.2d 250 (E.D. N.Y. 2006)0 28 U.S.C. § 1350

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officials the license to “violate constitutional rights with virtual impunity.” The majority also found that Arar as a foreigner, who was not formally admitted into the U.S., had no constitutional due process rights in terms of having been denied access to a lawyer.

In a surprising move, the appellate court voted to rehear the appeal en banc. On November 2, 2009, a divided panel of eleven judges from the Second Circuit Court of Appeals voted in a 7-4 decision to affirm the district court’s decision. The Court found that neither the TPVA nor the Constitution itself provides a remedy for someone illegally seized by U.S. authorities while traveling through the United States and sent around the world to be tortured. The court also stated that if a civil remedy was to be granted it would have to done by Congress. Writing for the seven-judge majority, Judge Jacobs, claimed that the TVPA did not apply because it covered only the actions of foreign governments. Jacobs further stated that the law did not allow Arar to sue directly under the Constitution—what the law refers to as a Bivens claim—because “the judicial review of extraordinary rendition would offend the separation of powers and inhibit this country’s foreign policy.” The appellate court declined to recognize a Bivens action in this case because of the potential exposure of state secrets and the affects on foreign policy which called for hesitation. Dissenting Judge Parker, Jr., vehemently disagreed with the aspect of the ruling as an explicit abdication of the judiciary’s role to check execute branch abuses by enforcing constitutional due process guarantees. The court’s majority opinion reflects a hesitation to render any decisions that may potentially jeopardize national security. The Court’s hesitation is reflected in Jacob’s majority opinion stating that “if a civil remedy in damages is to be created for harms suffered in the context of extraordinary rendition, it must be created by Congress, which alone has the institutional competence to set parameters, delineate safe harbors, and specify relief.” In his dissent, Judge Guido Calabresi stated that “I believe that when the history of this distinguished court is written, today’s majority decision will be viewed with dismay.”0

It will be recalled that the Second Circuit Court of Appeal initiated the private sector revolution in the enforcement of international human rights under the Alien Tort Statute. The critical question is whether the manifest justification of the majority’s decision obscures a deeper policy foundation for the rejection of the plaintiff’s claim. If so, this would represent a significant shift in the promise of using private law tools to effectively enforce human rights standards. The strong dissents suggest that the matter is at this time uncertain.

0 Benjamin Weiser, Full Appeals Court Rejects Suit in Rendition Case, New York Times (November 2, 2009, 11:44 am); See also Arar v. Ashcroft, et al., 414 F.Supp.2d 250 (E.D. N.Y. 2006)

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