UK: Odah et al. v United States et al., United States Court of Appeals for the District of Columbia Circuit, 11 March 2003

The immediate effect of the U.S. Court of Appeals’ decision last month in Odah v United States - to dismiss for lack of jurisdiction actions brought by detainees (including British nationals) at the Guantanamo Bay Naval Base - might seem of little relevance to commercial lawyers and their clients. However, the case, and in particular the concurring opinion of Judge Randolph, is of broader interest for its contribution to the ongoing debate over the scope and effect of the U.S. Alien Tort Act.

The Alien Tort Act, 28 U.S.C. §1350 ("ATA") states that the United States federal courts shall have subject matter jurisdiction over "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". This provision was enacted by the First Congress in 1789 but lay largely dormant for most of the next two hundred years. Judge Friendly once described it as "a kind of legal Lohengrin; although it has been with us since the first Judiciary Act, no one seems to know whence it came".

The ATA was famously "revived" in 1980 by the Second Circuit Court of Appeals in Filartiga v Pena-Irala. The Court allowed citizens of Paraguay to sue another Paraguayan for torts committed in Paraguay "in violation of the law of nations" (in that case the customary international law prohibition of torture). Professor Koh of Yale University has described the decision as the " Brown v Board of Education" of "transnational public law litigation".

Since Filartiga the ATA has increasingly been used in the Second Circuit against multi-national corporations, whose presence in New York establishes personal jurisdiction, for alleged violations of international law committed outside the United States. These include an action by the estate and son of Ken Saro-Wiwa against Royal Dutch Petroleum Company and Shell Transport and Trading Co. Plc alleging that the companies’ Nigerian affiliate was complicit in the torture and murder of Mr Saro-Wiwa by the Nigerian authorities; an action by victims of apartheid against a large number of banks and other companies that allegedly profited from human rights violations by the South African regime during the apartheid era; and a recently-filed suit by victims of terrorism against international banks, Islamic foundations, and financiers, for their alleged support for terrorists. The Ninth Circuit Court of Appeals (which covers California) has also followed Filartiga, for example in a case brought against the estate of Ferdinand Marcos by Philippine nationals for torts committed in the Philippines.

In the D.C. Circuit, however, a number of Judges have cast doubt on the Filartiga interpretation of the ATA. In Tel-Oren v Libyan Arab Republic (1984) Judge Bork held that the ATA creates no cause of action and Judge Robb commented that the Filartiga approach is "fundamentally at odds with the reality of the international structure and with the role of the United States courts within that structure". In Sanchez-Espinoza v Reagan (1985) Judge (now Justice) Scalia thought that the ATA might have been meant to cover only private, nongovernmental acts taken against aliens such as piracy.

In Odah Judge Randolph adds his voice to the case against Filartiga. Most importantly he criticises the Second Circuit’s holding that the "law of nations" is part of U.S. federal common law and thus determinable by the federal courts. He argues that the U.S. Constitution confers authority on Congress to determine what international law is and what violations of it ought to be cognisable in the (U.S.) courts, and that the courts cannot therefore have freewheeling authority to determine and award compensation for violations of international norms.

The likely consequence of this split between various circuits is that the meaning of the ATA will at some future point fall to be determined by the United States Supreme Court. No doubt cases will continue to be brought in reliance on Filartiga, particularly in New York, but it is probable that the decision will at some stage be subject to challenge. Watch this space.

Article by Stephen Hunter

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