Sosa v. Alvarez-Machain – 2004 (333-38) Mexican national accomplice to murder of undercover DEA agent. DEA approves abduction of A-M to US to stand trial.
US rejects argument that kidnapping divests US of jurisdiction.
A-M files suit to recover damages from abductors under ATS.
SOUTER Majority ATS creates SOME causes of action. Just not this one.
Defining “law of nations” in 1789
Allows re: violation of safe conduct, infringement of ambassador rights, piracy
Argues we can’t freeze it at those three – but judicial RESTRAINT in allowing new ones. Why restraint?
Common law has changed since 1789. Doesn’t exist in vacuum, as we used to think. Now recognize that new right of action is being CREATED.
Rethinking of role of federal courts re: fed common law. ERIE.
Creating private right of action is better left to legislature in vast majority of cases.
Judiciary should be restrained because it has potential implications re: foreign relations, where legislative and exec branch have great discretion
Worry about suits that tell other countries how to treat their citizens
No congressional mandate to define new violations of law of nations
Did get one with TVAP – but well-defined
Quarter century since Filartiga – no legislation forbidding, or saying courts shouldn’t do this.
A-M gets nothing – no case here.
Reject argument that there is customary law prohibiting arbitrary arrest
His argument is too broad – saying any time officially sanctioned action exceeds its positive authorization to detain under its own law
Single day of illegal detention followed by transfer of custody to lawful authorities and prompt arraignment – violates no norm of customary international law.
PA – could have looked at ICCPR – norm against arbitrary detention (thought we haven’t signed), UN working group on arbitrary detention, ICTY jurisprudence)
SCALIA Concurrence in Part and in Judgment – not a question of what congressional act would PREVENT courts from applying “law of nations”, but what act AUTHORIZES exception from Erie holding that general federal common law does not exist.
Ferdinand Marcos – Philippine Torture Victims
Relevance – governments (states, and their instrumentalities) have immunities in courts
Can’t sue state – except under Sovereign Immunities Act
Thus, have to explore other routes.
Marcos declares martial law, and harshly represses all political dissent – including use of torture. Also engaged in widespread, systematic theft. Deposed, and flew to HI.
Several lawsuits filed in US courts for HR violations.
30 for named individuals.
Some got default judgments
Several class action suits.
Some got exemplary damages.