Access to U.S. Federal Courts as a Forum for Human Rights Disputes: Pluralism and the Alien Tort Claims Act

The contribution of this paper to the conference falls under the category of The United States Experience of the Pluralistic Deficit Before the Courts. Rather than discuss the inclusion of U.S. citizens in the judicial process or the U.S. domestic judicial system per se, this paper will address pluralism in the context of the Alien Tort Claims Act (ATCA or the Act) portion of Sosa v. Alvarez-Machain, which at the time of this conference was being decided by the Supreme Court of the United States. This paper will first briefly describe how the ATCA, and the opposition it has faced, reflects and informs the U.S. position on civic pluralism on an international level, or rather, civic participation by people other than U.S. citizens. Second, the ATCA requires federal courts to incorporate international human rights and humanitarian law into the analysis of cases brought before them on ATCA grounds. These acts of incorporating law, legal opinions, and jurisprudence from sources other than U.S. state or federal law can be framed as acts of legal pluralism. This paper will therefore propose that courts ought to consider the robust history and tradition of instances of legal pluralism as a means for allowing customary international human rights law to enter our own decisionmaking process and thereby add routes for civic participation available to victims of human rights abuses.

Part I, therefore, will provide a brief historical and contextual background to the ATCA and the litigation that has occurred under it, as well as some of the arguments advanced by those who oppose the Act. Because the decision in Sosa now frames the ongoing debates and litigation in which the ATCA is featured, Part II will summarize the holding in that case. Part III will describe the Act’s contributions to increased civic pluralism in order to suggest that the very concept of pluralism–both in terms of civic pluralism and legal pluralism–is at the core of the opposition to the ATCA. Part IV will then propose that, in the case of the ATCA, legal pluralism and civic pluralism are necessarily interconnected. Ultimately, this paper will argue that the increased civic pluralism that the Act provides relies on a willingness to incorporate ideas and methodology from legal pluralism.