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US courts should apply universal principle to Alien Tort cases

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  1. Introduction - ATCA background
  2. International treaties and area of jurisdiction for ATCA
  3. The U.S. and the UN Universal Declaration of Human Rights in 1948
  4. Traditional bases of jurisdiction
  5. U.S. ATCA litigation history
  6. The elements of an ATCA claim
  7. A review of Sosa
  8. Justice Souter's case
  9. Recent ATCA cases
  10. ATCA future
  11. Conclusion

The Alien Tort Statute, also known as the Alien Tort Claims Act (ATCA), originally appeared in Section 9 of the first Judiciary Act of 1789, which created the U.S. judicial court system. It provides that 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 (international law) or a treaty of the United States. The act was largely dormant until 1982, when the 2d Circuit decided Filartiga v. Pena-Irala, 630 F.2d 876, and provided what the Bush administration calls "the modern conception" of the act, "a far-reaching cause of action on behalf of aliens for violations of international law anywhere in the world."

The Constitutional problem is determining the type of case ATCA poses under Art III Sec 2. The Section 9 Judiciary Act creates the right of an alien to sue; however, the next step is determining how a tort claim ?committed in violation of the law of nations or a treaty of the United States? fulfils the constitutional requirements of Art III Section 2. Chief Justice Marshall said in The Nereide, 13 U.S. 388, 423 (1815), that ?the Court is bound by the law of nations which is a part of the law of the land. Subsequent courts have reiterated that customary international law is part of U.S. law and that rules regarding foreign relations and international law must be treated exclusively as an aspect of federal law.

[...] The lower courts should be able to apply the Universal Principle and the ?shock the conscience? test to try ATCA claims. To deter frivolous claims and safeguard against due process abuses, the courts should set some limits on ATCA to prevent these abuses. US courts should consider adopting the three safeguards utilized by the International Court of Justice (ICJ).[36] The three safeguards are the principle of legality, necessity, and due process of law. The principle of legality means that universal jurisdiction should be exercised only over serious international crimes clearly recognized by treaty or customary international law. [...]

[...] The Universal Principle allows jurisdiction to be conferred in any forum that obtains physical custody of the perpetrator of certain offenses considered particular heinous and harmful to humanity.[6] The Universal Principle recognizes that certain offenses are so heinous and so widely condemned that state if it captures the offender may prosecute and punish that person on behalf of the world community regardless of the nationality of the offender or victim or where the crime was committed.?[7] The U.S. might have a good model for trying ATCA claims if it follows the Universal Principle. [...]

[...] The most recent treaties, ratified by the United States in 2002, authorize universal jurisdiction over terrorist bombings and financing of terrorism.[20] If the US district courts applied the Universal Principle to ATCA claims, it would only be reinforcing the rights of these victims to a judicial arena to hear their claims. A Review of Sosa In 1985, a Drug Enforcement Administration (DEA) agent working in Mexico was captured, tortured, and interrogated for two days, and then executed. Dr. Humberto Alvarez-Machain was among the Mexican nationals accused of participating in this heinous crime. [...]

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