I. Introduction
The United is often look upon in the world as a last resort for fighting injustices and wrong committed by brutal, dictatorial regimes. The use of the Alien Tort Claim Act (ATCA) and the Torture Victim Protection Act (TVPA) by foreign victims provides a voice of victims of human rights atrocities and a forum to hear their claims. The litigation under those two statues has proven to be an important tool in the struggle to protect human rights. The impact of the cases decided under ATCA and TVPA on both the individual plaintiffs and the human rights movement in their home countries and elsewhere should not be underestimated.
However, none of the judgments has been paid, yet some may still be collected. It is may be true that the plaintiff in those cases are concerned about much more than money, and they take tremendous personal satisfaction from filling a lawsuit and winning a judgment. Since any judgment can not be enforced properly, the statues that have been enacted and the judgments have been granted will not appropriately reach their objectives, and all efforts spend in litigation will be useless. Besides, international law increasingly recognizes that international rights are limited significance if they can not be enforced. Therefore, it is time to find possible mechanisms in order to enforce any judgment under the ATCA against defendant living outside the United States.
The enforcement of a judgment under the ATCA against defendant living outside the United States needs international agreements that makes it possible to enforces a judgment against violation human rights under a tort claim. If there is not any international agreement on enforcing a foreign judgment under a national court it will be difficult to achieve the objectives of the ATCA and the TVPA and, consequently the human rights are still lack of protection.
This paper discusses the obstacles in enforcing a judgment against defendant living outside the United States under the ATCA and observes what efforts could be pursued in order to find mechanisms to enforce a judgment. Following this introductory remark, part II will provide the history of the ATCA and the TVPA, the development and the application of the ATCA, and international human rights and their relation to the ATCA. Part III will discuss the United States court judgments under the ATCA, obstacles in enforcing a judgment under the ATCA and possible mechanisms to enforce the judgment. Part IV will provide the conclusion, recommendations for improvement of the ATCA and international agreement on human rights protection.
II. Human Rights protection under the ATCA and International Agreements on Human Rights
In 1789, the framers of the First Judiciary Act granted to the newly federal district court original jurisdiction over civil action where an alien sues for a tort only in violation of the law of nations or a treaty of the United States. This jurisdictional grant, codified to day at 28 U.S.C § 350 and known as the Alien Tort Statue or the Alien Tort Claims Act, supported jurisdiction, in fact, only twice in nearly 200 years. That statue receives that law of nations is part of the law of the United States. Not only could the law of nations be violated by individuals but it could evidently be sued and enforced by individuals.
In Filartiga v. Pena-Irala, The court found that customary international law grants all individuals certain fundamental human rights, including the rights to be free from official torture. Since then federal courts have adopted this broad reading of the ATCA and foreign nationals have successfully adjudicated claims against human rights violator. Later decision has permitted the ATCA suits for summary execution, disappearance, prolonged arbitrary detention, and cruel, in human or degrading treatment.
Filartiga prompted Congress to pass TVPA in 1991 in order to mitigate the effects of torture on its victims. Unlike the ATCA, TPVA provides an express ten-year statue of limitations. This period selected because it insures that the Federal Courts will not have to hear stale claims. The United States Senate reported on TVPA cited examples of situations where equitable tolling should be applied to TVPA claims.
Even though some differences between two statues, the legislative history makes clear that TPVA was designed to strengthen and expand the ATCA, lessening the danger that the judiciary might reject the Filartiga court’s interpretation of the ATCA and extending coverage to claims by the United States citizens. Litigation under the ATCA and TPVA has aimed to hold accountable people who had previously been able to escape responsibility for their gross human rights violations because of the weakness of other enforcement mechanisms.
The ATCA is one of the most widely discussed provisions in modern international law. Since the Second Circuit landmark decision in Filartiga v. Pena -Irala, federal courts have developed a sophisticated jurisprudence for international human rights cases brought under the statue. However, the scope of claims available under the ATCA has recently been challenged by a series of decisions that has limited to the pleading of a restrictive category of Customary International Law known as jus cogens.
Human rights refer to a broad range of rights and freedoms to which every person is entitled. Based on standard widely accepted in the international community, these rights are inalienable, inhering in each individual by reason of humanity. The violation of these rights is presumed to have an impact on the world community in general and therefore, a cause of international concern. The Charter of the United Nations expressly promotes respect for human rights and fundamental freedoms. The Charter as a treaty is binding upon the member states. Some government and commentators take the position that the Charter’s provision regarding human rights are to vague to be legally binding. Others, however, relay upon the enumeration of specific human rights in subsequent international instrument, such as the Universal Declaration of Human Rights. It is generally recognized as defining international standards of human rights.
The development of international law also brings impacts on the protection on human rights. Prior to Word War II, international law consisted chiefly of relation between states. In traditional international law the individual played an inconspicuous part. What a state did inside its border in relation to its own nationals remained its own affair, a matter of domestic jurisdiction. Thus under traditional notions of sovereignty, the rights of individual citizens within a nation were generally beyond the scope of international law.
Following World War II especially after the Nuremberg Tribunal, there was a dramatic change in international law. Individual then become the subject of international law. The contemporary international law of human rights reflects general acceptance that how a state treats individual human being, including its own citizens, in respect of human rights, is not the state’s own business alone, but is a matter of international concern and a proper subject for regulation by nternational legal community.
The later developments of international human rights were marked by several conventions and agreements both in international level and regional level. Following The Universal Declaration on Human Rights there are the International Covenant on Civil and on Economic, Social and Cultural Rights, and The International Covenant on Civil and Political Rights further clarified the scope and definition of human rights. The development also happened at regional level such as, the European Convention for the Protection of Human Rights and Fundamental Freedom, the American Convention on Human Rights and so on.
The limited legislative history does not indicate Congress precise purpose in enacting section 1350, but that purpose may be derived from the overreaching design of the federal judiciary, of which the statue is a part. The framers of the First Judiciary Act sought to place question of national import, such as those involving the law of nation or treaties, within the hand of the federal judiciary. The rational underlying section 1350 was much the same as that underlying the Act’s grant of diversity jurisdiction incases involving citizens of different states.
The ATCA requires a tort and a violation of international law in order for a federal court to exercise jurisdiction. With the development of international law the coverage of the ATCA should also follows the development. The judges that hear the cases have an important role in adjust the ATCA with the development in international human rights. One of the approaches that can be applied by the judges is by using Customary International Law, thus not only based on jus cogent.
III. Seeking for Mechanisms to Enforce Court Judgments against Defendant Living outside the United States.
A. Court Decisions under the ATCA and Their Enforcement
The ATCA provides jurisdiction for federal court for an action by an alien under tort only, committed in violation of a treaty of the United States or the law of nation. Even though the reasons for its inclusion in the Judiciary Act of 1789 remain unclear, Congress apparently believed that the provision of remedies in federal court for aliens victimized by violations of international law was an important aspect of the new republic’s responsibilities as a member of the community of nations. However the statue lapsed into disuse until the 1980s, when growing interest in the protection of human rights and the emergence of advocates familiar with the body of international human rights law sparked a revival.
For nearly 200 years after its passage, the ATCA was rarely used. It was not until 1980 in Filartiga, that the ATCA was successfully used to establish that the law, even when the case involves acts perpetrated in another country by a non-United States citizen. In this landmark case Paraguayan citizen successfully used the ATCA to recover the damages in the federal court from a former Paraguayan official for acts of official torture that had occurred in Paraguay.
In this case, in the district court, the case was dismissed for lack of subject matter jurisdiction. The Second Circuit reversed and remanded, sustaining jurisdiction under the Alien Tort Claims Act. Following remand the defendant defaulted. The District Court granted a default judgment and referred the question of damages to a Magistrate, who recommended awarding only compensatory damages. The plaintiff objected, and District Court awarded damages of over $10 million, including punitive damages.
There are some others court decisions that approved the application of the ATCA toward human rights violation happened in foreign country and granted remedy to the plaintiff. In Forti v. Mason, the District Court upheld jurisdiction and allowed plaintiffs’ claims of torture, prolonged arbitrary detention and summary execution to proceed, but dismissed two others claims: disappearance and cruel, inhuman or degrading treatment. Plaintiffs filed a motion for reconsideration the court granted in part, accepting the claim of disappearance and cruel but again rejecting the claim of cruel, inhuman and degrading treatment. .
In claim against former president of Philippine, the District Court of Hawaii and California dismissed five lawsuits. The Ninth Circuit reversed and remanded with an unpublished opinion. The Consolidate cases were remanded to the District Court in Hawaii, which held a three phase trial (liability, punitive damages and compensatory damages). The jury awarded a total of $1.2 billion in punitive damages and $766 in compensatory damages. The final judgment for the plaintiffs was entered in February 1995.
In the meantime, two related cases have reached the Ninth Circuit. In Trajano v. Marcos, a mother sued Marcos’ daughter, Imee Marco-Manotoc, as well as the Marcos estate, for the kidnapping, torture and murder of her son. Marcos-Manotoc appealed, challenging subject matter jurisdiction. The Ninth Circuit affirmed the default judgment. In separate appeal, the Marcos estate challenged a district court injunction freezing Marcos’ bank account in Switzerland, but the Ninth Circuit upheld the injunction.
Even though several claims under the ATCA have success and the court granted the judgment, but many others were failed due to various reasons. In Tel-Oren v. Libyan Arab Republic, the District Court dismissed the claim for lack of subject matter jurisdiction. Although unanimous in decision, to affirm dismissal, the panel divided sharply on the rationale. Judge Edwards agree with the Filartiga holding that individuals may sue for violations of the law of the nations, but found insufficient international consensus to indicate that either terrorism or nonofficial torture violate the law of nations. The Judge Bork suggested that separation of powers concern mandate requiring individual to demonstrate an express grant of private cause of action before allowing them to invoke section 1350. The judge Robb, third judge on the panel, stated that all human rights claim under section 1350 are
nonjustifiable political questions.
The decisions discussed above show that the judge are still different in understanding the ATCA, especially in the concept of law of nations. The main differences lay in the question whether the act of state and political question doctrines or separation of powers concern they embody, necessarily bar the use of section 1350 in actions, claiming of the international law of human rights. Another difference that frequently appeared in the court decision is, whether the law of nations covers the meaning of jus cogens and customary international law or just jus cogens.
In order to give more protection to human rights, the court should construe the ATCA to accommodate the evolutionary character of international law. Under proper circumstances, courts should entertain the ATCA claims for human rights violation. The approach of the courts that requiring a jus cogens threshold, threaten to undermine the ATCA’s potential by unduly restricting the scope of actionable claims and by engaging in a mere superficial glance at international law sources to determine cognizable claims.
In understanding several court decisions however, there are some promising policies taken by the court especially in granting compensatory judgment for the claimants. That policy shows that the protection of the human rights and the application of the ATCA are not just for the personal satisfaction, but also want to remedy the pain and distress suffered by the victims. And the most important thing is that the defendant should feel that they must pay include with their properties.
B. The Enforcement of Court Judgment
Even though the courts have awarded millions of dollar in judgment against violation of human rights, there still remains a more serious problem that is in the enforcement of court judgment. Multi-million dollar judgment in prior ATCA cases have gone uncollected, with the exception of a paltry $400 collection from Argentine General Suarez-Mason Within the United States, the states consider judgment of the courts of other states as foreign judgment guaranteed recognition through the Full Faith and Credit Clause of Art. IV §1 of the Constitution. Money or property judgment rendered in a federal district court must first be registered in another district by filing a certified copy of the judgment with the district court in the state. Registered judgments have the same effect as judgment of a district court of a district where registered and may be enforced in like manner. The judgment generally must be final and no longer subject to appeal, although it can be registered before all appeals are exhausted when ordered by the court that entered the judgment for good cause shown.
Enforcement of money judgments under Federal rule of procedure is achieved through a writ of execution and in accordance with the practice and procedure of the enforcing state, except that any federal statue governs to the extent that it is applicable. A wining plaintiff may obtain discovery from any person, including the judgment debtor, in seeking execution of the judgment.
The United States procedures, both at states and federal level however should have been enforced maximally to secure a judgment under ATCA. In Filartiga for instance the court failed to enforce the judgment because the defendant had been left the United States. The court should have ordered to register the defendant assets before deporting him out of the United States. It is true that there is a problem with legal certainty, because the defendant has been forced to surrender their property before the case not yet been settled. But, such a procedure should be taken to maximize the application of court judgment. However, at first, there must be some improvements of the ATCA that include mechanisms to enforce court judgment especially against defendant living the United States.
There are some problems in enforcing the compensatory judgment. First, most defendants either have no assets in the United States or arrange to transfer assets out of the country in the months or years that the litigation is spending. Second, efforts to enforce judgment in other countries face a series of difficulties: assets must be located and frozen in place while legal attachment proceedings are initiated and the foreign judicial system must be convinced to enforce the United States judgment.
C. Seeking for Possible Mechanisms to Enforce Foreign Judgment
From the past experience it seems that it was very difficult to enforce the judgment against defendant living outside the United Sates. The enforcement of foreign judgment commonly proceeds from notions of comity. Nonetheless, this approach will apply certain exceptions that may prevent enforcement. Although each state determines for its self what exceptions to apply, a failure of jurisdiction typically is included.
Such difficulties can be avoided if there is an agreement between the United Stated and the country where the defendant’s assets located. However, at present the United Stated has no treaties with any country regarding the general enforcement of money judgment. The only treaty that appears to be seriously pursued was with England. Unfortunately it was never adopted, allegedly because of serious reservation the English had regarding American tort and treble damage antitrust judgment.
It seems that the treaty is to general and raises the reservation to the England. To avoid the reservation, the scope of the treaty should be limited to the enforcement of tort in human rights violation claims. If bilateral approach results in difficulties in overcoming the problem in enforcing foreign judgment, there should have been through other approach such as regional or international agreement. First, the efforts should be directed on the countries that have the same legal historical heritage, such as countries with Anglo-American system. Because there are many similarities, it may be easier to reach multilateral agreement. Second, is through international agreement, especially under the United Nation.
The experiences also show that the United Nation has been successful in adopting several international agreements on Human Rights. If the United Nation has been successful in adopting several agreements on the protection of human rights, it should also be able to reach an agreement in finding the mechanism to enforce foreign judgment in violation of human rights? It may be need a lot of time and energy, however, such an effort must be begin from now on.
Another mechanism that can be adopted through international agreement is by extent the scope international tribunal so that it can be asked to hear a motion from a court where the judgment has been granted, to seizure or confiscate the assets or property of defendant. If such a motion be granted, the judge can ask a member state to enforce the judgment. If that is still not success, the problem can be brought to the United Nation, to be discussed in the General Assembly or Securities Council.
However, the most important is that although criminal law prosecution of those who violate human rights is an essential part in progress toward preventing and punishing such violations, the civil remedy currently should be a valuable tool as well. Thus, all effort should also be taken not only to reach a judgment, but also to enforce the judgment, through any internal, regional or international possible legal mechanism.
IV. Conclusion
The application of the ATCA and the TVPA has strengthened the protection of human rights, especially abuses committed outside the United Stated. The Filartiga has brought new approach to the protection of human rights in the United States and supported the award of civil remedy for the victim suffered form human rights abuses. However the ATCA and its application have not guaranteed the enforcement of the judgment against the defendant living outside the United States.
In order to strengthen the protection of human rights and provide the victims with financial compensation for their injuries and suffering, the ATCA should be amended with the inclusion of mechanisms to enforce the judgment. Since the application of the ATCA always involves foreign country, the United States should pursue both bilateral and multilateral agreement to find mechanisms to assure the enforcement of a judgment for foreign defendant.
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