[Tom Lee is a professor of law at Fordham Law School.]
On February 16, 2007, the Sixth Circuit (Keith) published a unanimous opinion in Tavaeras v. Tavarez, a suit brought under the Alien Tort Statute (28 U.S.C. 1350). That hoary and storied statute states: “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 or a treaty of the United States.” The Sixth Circuit understood the Supreme Court’s holding in Sosa v. Alvarez-Machain, to authorize aliens to sue under the ATS for two categories of violations of the law of nations: (1) the three violations of the law of nations—“piracy, offenses against ambassadors, and violations of safe conducts,” which the Sosa Court believed the First Congress intended to redress in 1789 when the ATS was enacted; and (2) “in addition to these traditional laws of nations violations, other causes of action based upon present-day law of nations [that] ‘rest on a norm of international character accepted by the civilized world and defined with a specificity comparable to the features of the 18th-century paradigms.’”
Mr. Taveras, the Dominican father, alleged that his estranged wife, Ms. Tavarez, also a Dominican national, had abducted their two children to the United States. She had entered the USA on a visitor’s visa but never returned to the Dominican Republic (DR), opting to live with relatives in Ohio. Mr. T pled subject-matter jurisdiction under the Alien Tort Statute (28 U.S.C. 1350) and the International Child Abduction Remedies Act (ICARA), the implementing statute for the Hague Convention of 1980 on Child Abduction, to which the United States was a signatory. The district judge rejected the ICARA hook, reasoning that the United States “has not declared its acceptance of the Dominican Republic’s accession to the Hague Convention.” Mr. T did not appeal that ruling. The lower court also rejected the ATS hook – and consequently dismissed the case for lack of subject-matter jurisdiction, because Mr. T’s “allegations did not qualify as a violation of any treaty or the law of nations.” The Sixth Circuit affirmed. (A minor technical quibble here is whether Mr. T’s allegations of substantive violations under the treaty and the law of nations were plausible enough under Bell v. Hood to sustain jurisdiction under §1350 or, for the treaty claims, the general federal-question statute, even though the claims would not survive a motion to dismiss on the merits.)
Mr. T made two arguments for a qualifying law of nations violation under the ATS: one each in the “traditional” and “present-day’ flavors. First, he argued an old-school safe conduct violation. “[B]y fraudulently misrepresenting her intent to abandon her foreign residency and permanently immigrate to the United States, she had surely violated the U.S. immigration statute. She had also, he continued, “deprived the United States of its right under the law of nations to make a valid determination as to whether the U.S. wanted to grant safe conduct to a cross-border child abductor.” In other words, Mr. T’s theory of a safe conduct violation understood it to refer to an infraction of the sovereign’s right to control its borders—a law of nations right that was “embodied” in the domestic statute. Second, he argued that there was a present-day “international consensus”—of which the Hague Convention’s provisions were probative—against cross-border parental abduction by an individual like Mrs. T with full custody rights. The Sixth Circuit rejected that argument, concluding that the Hague Convention (and so controlling convention) was clear that a “parent without custody rights, such as Mr. Taveras, is not entitled to the remedy of return or nay other judicial remedy.” The Court’s persuasive reasoning in this respect is similar to that in Sosa and dozens of other cases dealing with similar present-day law of nations ATS claims, and so I will not engage in further analysis of it here.
What is novel and noteworthy about the Sixth Circuit’s decision is its rejection of Mr. T’s theory of a qualifying safe-conduct violation. (The theory certainly seems reasonable, in light of the fact that commentators have not much examined safe conducts.) In so doing, the Court relied on an article published a few months ago, The Safe-Conduct Theory of the Alien Tort Statute, 106 Colum. L. Rev. 830 (2006), in which I asserted, based on a close reading of works by the Englishman Blackstone and the Swiss Vattel that were heavily used by the founding group, that a safe-conduct violation referred to a non-contract injury to the person or property—Blackstone’s very definition of a “tort”—of an alien traveling to, within, or out of a host sovereign’s territory or areas controlled by its military forces under circumstances in which international law recognized a duty on the part of the host to ensure the alien’s safety or security. With respect to any friendly or neutral aliens, the duty was viewed as practically universal, although safe-conduct documents similar to modern passports were used for verification purposes. With respect to enemy aliens, the obligation was more circumscribed, for instance, to prisoners of war, civilians, and truce negotiators. On this view, the Sixth Circuit rightly rejected Mr. T’s claim.
The most important, big-picture ramification of the Sixth Circuit’s adoption of this understanding of the safe-conduct violation—despite its rejection of Mr. T’s specific claim, is the potential for ATS liability with respect to any tort understood simply as an injury to one’s person or property, so long as the alien plaintiff alleges a U.S. sovereign nexus. There would be no need to allege a free-standing substantive international law claim. Put another way, on my view, the statutory words “in violation of the law of nations or a treaty of the United States” serve to mark which aliens could sue: for instance, an enemy alien soldier within the United States could not sue if he were shot by a U.S. soldier, while a friendly alien could sue if he were to suffer the same injury, notwithstanding the fact that the latter’s harm would not necessarily suffice to ground an international law claim. Of course, in modern practice, the Federal Tort Claims Act would bar such claims, although it would not necessarily bar claims by private contractors, whether U.S citizens or aliens, who may be acting on the government’s behalf. It remains to be seen whether ATS litigants will avail themselves of this opening created by the Sosa opinion confirmation of the ATS’s role in policing the “traditional” age-of-sail violation of the safe conduct despite its anachronistic fit to the modern phenomena of massive cross-border movements of peoples and goods.
I thank Roger Alford for bringing this case to my attention and for inviting me to blog on it. Readers who would like to learn more about safe conducts may consult my article cited above (in which I propose that the ATS was exclusively about safe conducts), which may also be downloaded from SSRN here.