Professors Address Enforcement of Human Rights in U.S. Courts at Amnesty International
Professors William S. Dodge and Chimène I. Keitner each spoke as part of an Amnesty International conference panel that focused on civil actions to hold human rights violators accountable, covering immunity, extraterritoriality and future challenges. The conference, entitled "Enforcing International Human Rights in U.S. Courts," was sponsored by Amnesty International USA and held in San Francisco on March 18.
In his talk, "The Presumption Against Extraterritoriality and the Alien Tort Statute," Dodge explained that the presumption against extraterritoriality, which the U.S. Supreme Court recently reaffirmed in Morrison v. National Australia Bank—a case involving federal securities law—does not apply to human rights suits brought under the Alien Tort Statute (ATS). For 30 years, U.S. courts have relied on the Alien Tort Statute (ATS), 28 U.S.C. § 1350, as a grant of subject-matter jurisdiction over human rights violations that occur abroad.
Not only does the context of the ATS give a clear indication that it applies extraterritorially, but the presumption against extraterritoriality does not apply to purely jurisdictional statutes like the ATS.
Dodge defended his position on three points. First, the context in which the ATS was passed in 1789 provides a clear indication that it applies extraterritorially. Second, the argument that the presumption should apply to the ATS was made in Sosa v. Alvarez-Machain and won over not a single justice. Third, the presumption applies to substantive rather than jurisdictional statutes, as evidenced by the Morrison Court's differing treatment of Sections 10(b) and 27 of the Securities Exchange Act.
Keitner gave an overview of the various immunities that foreign defendants might enjoy in U.S. courts. She emphasized the importance of distinguishing between status-based immunities-such as head-of-state and diplomatic immunities-and more limited conduct-based immunities.
Keitner indicated that, contrary to the current position of the U.S. Executive, the Executive Branch is not necessarily entitled to absolute deference in determining a defendant's entitlement to conduct-based immunity, although the views of the Executive are certainly important.
Finally, Keitner spoke about what she called the three P's: the defendant's personal responsibility for the alleged conduct; the defendant's presence within U.S. territory; and the jurisdiction of U.S. courts to impose civil or criminal penalties for certain conduct, even if it was performed on behalf of a foreign state.
This panel was part of Amnesty International's celebration of its 50th year.