Method of Evaluation: Term Paper
The seminar explores the legal process of responding to international crimes, both recent and historical, and other injustices by providing monetary compensation and other non-penal remedies. No international law background is required. The topic begins with the history and development of the Alien Tort Statute from 1789 to the present, a statute that for three decades after 1980 seemed to offer a principal means of securing compensation in US courts for international wrongs, wherever they occurred. Specific topics relating to the ATS include (1) the international law background of the 18th century, (2) the evolution of the ATS in appellate decisions prior to 2004 beginning with its revival in the surprising Filartiga case (2d Circuit 1980), (3) the interpretation of the Supreme Court's decision in Alvarez-Machain v. Sosa (2004) and its application in recent cases ranging from the use of Agent Orange in Vietnam to the legal implications of the Iraq & Afghanistan wars, 4) suits against multinational corporations, usually in the extractive industries operating in emerging economies, and 5) the unfolding future direction of the ATS after the Supreme Court's decision in Kiobel v. Royal Dutch Shell (2013), which seems likely to reduce but not eliminate ATS litigation. In considering American offenders, we examine other theories (e.g. disbarment proceedings, contract eligibility suspension, Bivens actions) against largely-immune federal agents and officials and private contractors, an area of law that blossomed with various revelations from the war on drugs, Iraq and Afghanistan, and Guantanamo; regarding foreign offenders, we examine suits against foreign officials and governments (in the US under the Foreign Sovereign Immunities Act (1976) and anti-terrorism statutes; in other nations under their corresponding laws or national practice; in international law, under the ICJ's 2012 "Jurisdictional Immunities of the State" case (Italy v. Germany); we conclude by examining defenses common to litigation in these areas (e.g. state secrets, political question, contractor immunity, pleading specificity, forum non conveniens, comity, and international sovereign immunity).
To put these largely US suits and legal theories in context, the seminar will also examine some of the ways in which reparations and restitution have been awarded in recent decades in the US and other countries as part of the settlement of major wars and for human rights violations. Turning to US courts, we will look at campaigns by Japanese Americans for compensation for wartime internment, as well as by Native Americans, African Americans for black reparations, and Holocaust survivors. Cases have been brought in US, regional (notably the Inter-American Court of Human Rights), and foreign national courts against Germany and Austria for Nazi crimes, Castro's Cuba, the Soviet Union and South Africa, former European colonial powers for looting from their colonies, post-colonial regimes for nationalizing the property of Europeans, divided and reunited Germany, former communist East European nations, Latin American juntas, and other dictators around the world. Looking also at certain alternative mechanisms for human rights justice (truth commissions, political apologies), the seminar will try to assess the theory and applications of this new, broad, but fledgling area of litigation and statutory programs and its intersection with the uniquely American ATS and related legal tools.