The Torture Victim Protection Act and other US Jurisdictional Bases
| Author | François Larocque |
| Profession | University of Ottawa Faculty of Law |
| Pages | 88-120 |
CHAPTER
THREE
The
Torture
Victim
Protection
ACt
and
other
US
Jurisdictional
Bases
“
Congress
..
.has
not
only
expressed
no
disagreement
with
our
view
of
the
proper
exercise
of
the
judicial
power,
but
has
responded
to
its
most
notable
instance
by
enacting
legislation
supplementing
the
judicial
determination
in
some
detail.
”
—
Justice
D.H.
Souter
1
A.
INTRODUCTION
In
addition
to
the
Alien
Tort
Claims
Act
(ATCA),
US
federal
courts
may
assert
jurisdiction
in
transnational
human
rights
proceedings
on
a
number
of
statutory
bases.
Most
notable
among
these
is
the
Torture
Victim
Protection
Act
(TVPA),
enacted
in
1992
as
companion
legislation
to
ATCA
2
and
aimed
at
enhancing
its
jurisdictional
grant
by
providing
an
explicit
statutory
cause
of
action
for
torture
and
extrajudicial
kill
ing.
Other
possible
jurisdictional
avenues
include
the
Foreign
Sovereign
Immunities
Act
(28
U.S.C.
1330,
1602-11),
so-called
federal
question
jurisdiction
(28
U.S.C.
§
1331),
and
so-called
diversity
jurisdiction
(28
U.S.C.
§
1332).
These
jurisdictional
grants
will
be
discussed
in
turn
in
this
chapter.
Finally,
the
inherent
jurisdiction
of
state
courts
over
all
civil
and
criminal
controversies
will
be
discussed
in
relation
to
trans
national
human
rights
litigation.
1
Sosa
v.
Alvarez-Machain,
542
U.S.
692
at
731
(2004)
[Sosa],
2
Both
ATCA
and
TVPA
are
codified
at
28
U.S.C.
§
1350.
88
three
:
The
TVPA
and
other
US
Jurisdictional
Bases
•
89
B.
THE
TORTURE
VICTIM
PROTECTION
ACT
The
Torture
Victim
Protection
Act
3 4
5
(TVPA)
consists
of
three
sections.
Sec
tion
1
establishes
the
short
title
of
the
Act
and
§
3
defines
the
terms
“
torture
”
and
“
extrajudicial
killing.
”
The
salient
provision,
§
2,
reads
as
follows:
SECTION
2.
ESTABLISHMENT
OF
CIVIL
ACTION.
(a)
LIABILITY
—
An
individual
who,
under
actual
or
apparent
au
thority,
or
colour
of
law,
of
any
foreign
nation
-
(1)
subjects
an
individual
to
torture
shall,
in
a
civil
action,
be
liable
for
damages
to
that
individual;
or
(2)
subjects
an
individual
to
extrajudicial
killing
shall,
in
a
civil
action,
be
liable
for
damages
to
the
individual
’
s
legal
rep
resentative,
or
to
any
person
who
may
be
a
claimant
in
an
action
for
wrongful
death.
(c)
EXHAUSTION
OF
LOCAL
REMEDIES.-A
court
shall
decline
to
hear
a
claim
under
this
section
if
the
claimant
has
not
ex
hausted
adequate
and
available
remedies
in
the
place
in
which
the
conduct
giving
rise
to
the
claim
occurred.
(d)
STATUTE
OF
LIMITATIONS.
—
No
action
shall
be
maintained
under
this
section
unless
it
is
commenced
within
10
years
after
the
cause
of
action
arose.
4
C.
ELEMENTS
OF
JURISDICTION
1)
Forum
for
TVPA
Claims
The
TVPA
is
codified
as
an
annotation
to
ATCA
at
28
U.S.C.
§
1350,
that
is,
under
the
legislated
heads
of
jurisdiction
of
the
federal
dis
trict
courts.
5
Accordingly,
despite
the
statute
’
s
use
of
the
generic
term
“
court,
”
actions
under
the
TVPA
are
necessarily
brought
in
the
federal
district
courts.
That
being
said,
as
noted
by
the
Senate
Committee
3
Pub.
L.
No.
102-256,106
Stat.
73
(1992).
4
Ibid,
at
§
2.
5
The
position
of
the
section
in
the
overall
structure
of
the
US
Code
is
as
follows:
Title
28:
Judiciary
and
Judicial
Procedure
Part
IV:
Jurisdiction
and
Venue
Chapter
85:
District
Courts,
Jurisdiction
§
1350
—
Aliens
’
Action
in
Tort
90
•
CIVIL
ACTIONS
FOR
UNCIVILIZED
ACTS
reviewing
the
bill
before
its
passing,
the
TVPA
does
not
preclude
state
courts
from
adjudicating
transnational
human
rights
claims
pursuant
to
their
inherent
jurisdiction.
The
Senate
Committee
observed
how
ever:
“
as
a
practical
matter,
state
courts
are
not
likely
to
be
inclined
or
well-suited
to
consider
these
cases.
International
human
rights
cases
predictably
raise
legal
issues
—
such
as
interpretations
of
international
law
—
that
are
matters
of
federal
common
law
and
within
the
particu
lar
expertise
of
federal
courts.
”
6
As
will
be
discussed
below,
despite
their
inherent
authority
to
do
so,
state
courts
rarely
assert
jurisdiction
in
transnational
human
rights
cases.
7
8 9
2)
Plaintiffs
under
the
TVPA
The
TVPA
creates
a
cause
of
action
for
two
classes
of
plaintiffs.
First,
with
regards
to
torture,
§
2(a)(1)
permits
victims
to
recover
against
their
torturers.
Second,
with
regards
to
extrajudicial
killing,
pursu
ant
to
§
2(a)(2),
a
cause
of
action
lies
with
the
deceased
victim
’
s
“
legal
representatives
”
or
“
any
person
who
may
be
a
claimant
in
an
action
for
wrongful
death.
”
The
Senate
Committee
specified
in
its
report
that
the
term
“
legal
representative
”
was
specifically
intended
“
to
include
situations
in
which
the
executor
or
executrix
of
the
decedent
’
s
estate
is
suing.
”
6
In
Wiuia,
the
plaintiffs
included
a
British
citizen
suing
as
“
legal
representative
”
of
the
estate
of
a
deceased
torture
victim
under
§
2(a)(1).
The
defendant
moved
to
dismiss
the
claim
brought
by
the
legal
representative
on
the
grounds
that,
on
its
bare
terms,
§
2(a)(1)
al
lows
only
torture
victims
to
sue,
not
their
representatives.
The
court
declined
to
follow
this
interpretation,
as
it
would
result
in
denying
a
remedy
in
the
most
egregious
torture
cases,
that
is,
torture
that
causes
the
victim
to
die
or
to
become
legally
incompetent.
As
the
court
noted,
such
a
result
would
“
thwart
the
purpose
of
the
TVPA
to
redress
and,
hence,
deter
torture.
”
’
6
Senate
Report
Accompanying
Bill
S-313,
S.
Rep.
102-249
(1991)
[TVPA
Senate
Report],
in
Beth
Stephens
et
al.,
International
Human
Rights
Litigation
in
US
Courts,
2d
ed.
(Leiden:
Martinus
Nijhoff
Publishers,
2008)
at
574
[Stephens
2008].
7
Section
£(4),
below
in
this
chapter.
8
TVPA
Senate
Report,
above
note
6
at
575.
9
Witua
v.
Royal
Dutch
Petroleum,
No.
96
Civ.
8386
(KMW),
2002
U.S.
Dist.
Lexis
at
3293
at
52-53
(S.D.N.Y.
2002)
[Wiu>a
2002].
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