The Alien Tort Statute (codified into positive law in 1948 as 28 U.S.C. § 1350; ATS), also called the Alien Tort Claims Act (ATCA), is a federal law that gives federal courts jurisdiction over lawsuits filed by foreign nationals for torts committed in violation of international law. It was first introduced by the Judiciary Act of 1789 and is one of the oldest federal laws still in effect in the U.S.
The ATS was rarely cited for nearly two centuries after its enactment, and its exact purpose and scope remain debated. The U.S. Supreme Court has interpreted the Act's primary purpose as "[promoting] harmony in international relations by ensuring foreign plaintiffs a remedy for international-law violations in circumstances where the absence of such a remedy might provoke foreign nations to hold the United States accountable."
Since 1980, courts have generally interpreted the ATS to allow foreign nationals to seek remedies in U.S. courts for human rights violations committed outside the United States, provided there is a sufficient nexus to the United States. Both case law and jurisprudence differ on what characterizes a sufficient U.S. connection, particularly with respect to corporate entities.
Text
The statute reads as follows:
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.
History
The ATS was part of the Judiciary Act of 1789, which was passed by the First U.S. Congress to establish the federal court system. There is little surviving legislative history regarding the Act, and its original meaning and purpose are uncertain. Scholars have surmised that it was intended to assure foreign governments that the U.S. would seek to prevent and remedy breaches of customary international law, especially breaches concerning diplomats and merchants.
The ATS may have been enacted in response to a number of international incidents caused by the unavailability of remedies for foreign citizens in the U.S. The peace treaty ending the American Revolutionary War provided for the satisfaction of debts to British creditors, but several states refused to enforce the payment of such debts, prompting threats of retaliation by Great Britain. In 1784, French diplomat François Barbé-Marbois was assaulted in Philadelphia, but no legal remedy was available to him, as any prosecution was left to the discretion of local authorities. The incident was notorious internationally and prompted Congress to draft a resolution asking states to allow suits in tort for the violation of the law of nations; few states enacted such a provision, and Congress subsequently included the ATS in the Judiciary Act of 1789.
Until 1980, the ATS remained largely dormant, being invoked in only two reported court decisions.
Since 2013, the Supreme Court has "restricted the law's reach".
Revitalization: Filártiga v. Peña-Irala
In 1980, the U.S. Court of Appeals for the Second Circuit decided Filártiga v. Peña-Irala, which "paved the way for a new conceptualization of the ATS". In Filartiga, two Paraguayan citizens resident in the U.S., represented by the Center for Constitutional Rights, brought suit against a Paraguayan former police chief who was also living in the United States. The plaintiffs alleged that the defendant had tortured and murdered a member of their family, and they asserted that U.S. federal courts had jurisdiction over their suit under the ATS. The district court dismissed for lack of subject-matter jurisdiction, holding that the "law of nations" does not regulate a state's treatment of its own citizens.
The Second Circuit reversed the decision of the district court. First, it held that the ATS, which allowed jurisdiction in the federal courts over a suit between two aliens, was a constitutional exercise of Congress's power, because "the law of nations ... has always been part of the federal common law", and thus the statute fell within federal-question jurisdiction. Second, the court held that the contemporary law of nations had expanded to prohibit state-sanctioned torture. The court found that multilateral treaties and domestic prohibitions on torture evidenced a consistent state practice of proscribing official torture. The court similarly found that United Nations declarations, such as the Universal Declaration on Human Rights, manifested an expectation of adherence to the prohibition of official torture. The court therefore held that the right to be free from torture had become a principle of customary international law. However, one of the judges on the panel hearing the case later wrote that Filartiga "should not be misread or exaggerated to support sweeping assertions that all (or even most) international human rights norms found in the Universal Declaration or in international human rights treaties have ripened into customary international law enforceable in the domestic courts".
Since Filartiga, jurisdiction under the ATS has been upheld in dozens of cases.
First U.S. Supreme Court hearing: Sosa v. Alvarez-Machain
The first U.S. Supreme Court case to directly address the scope of the ATS was Sosa v. Alvarez-Machain in 2004. The plaintiff, Alvarez, brought a claim under ATS for arbitrary arrest and detention. He had been indicted in the United States for torturing and murdering a Drug Enforcement Administration officer. When the United States was unable to secure Alvarez's extradition, the United States paid Sosa, a Mexican national, to kidnap Alvarez and bring him into the U.S. Alvarez claimed that his "arrest" by Sosa was arbitrary because the warrant for his arrest only authorized his arrest within the U.S. The U.S. Court of Appeals for the Ninth Circuit held that Alvarez's abduction constituted an arbitrary arrest in violation of international law.
The Supreme Court reversed and clarified that ATS did not create a cause of action, but instead merely "furnish[ed] jurisdiction for a relatively modest set of actions alleging violations of the law of nations." Such actions must "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 we have recognized." Although the scope of ATS is not limited to violations of international law recognized in the 18th century, with respect to recognizing contemporary international norms, the Court's opinion stated that "the judicial power should be exercised on the understanding that the door is still ajar, subject to vigilant doorkeeping."
In Alvarez's case, "a single illegal detention of less than a day, followed by the transfer of custody to lawful authorities and a prompt arraignment, violates no norm of customary international law so well defined as to support the creation of a federal remedy."
Ongoing controversy
Exercising legal jurisdiction in the United States over matters that occurred abroad is a controversial practice and some have suggested that Congress eliminate it. Others believe that a multilateral solution, including through either the Organisation for Economic Co-operation and Development or the UN, would be more appropriate.
Scope of the statute
"Violation of the law of nations"
The Supreme Court held in Sosa v. Alvarez-Machain that the ATS provides a cause of action for violations of international norms that are as "specific, universal, and obligatory" as were the norms prohibiting violations of safe conducts, infringements of the rights of ambassadors, and piracy in the 18th century. Courts have found matters actionable under the ATS to include torture; cruel, inhuman, or degrading treatment; genocide; war crimes; crimes against humanity; summary execution; prolonged arbitrary detention; and forced disappearance.
Since Sosa, courts have struggled to define the level of specificity required for a norm to be actionable under the ATS. For example, subsequent to Sosa, the U.S. Court of Appeals for the Eleventh Circuit overturned prior lower-court decisions that had found cruel, inhuman, or degrading treatment actionable, noting that Sosa repudiated the International Covenant on Civil and Political Rights as a source of law under the ATS. Similarly, courts have held that economic, social, and cultural rights are too indeterminate to satisfy Sosa's specificity requirement. For example, in Flores v. Southern Peru Copper Corp., the Second Circuit stated that the rights to life and to health are too indeterminate to constitute a cause of action under the ATS.
The U.S. District Court for the Northern District of California, however, has held that the limits of a norm need not be defined with particularity to be actionable; rather, the norm need only be so defined that the particular acts upon which a claim is based certainly fall within the bounds of the norm. In Doe v. Qi, the court stated, "The fact that there may be doubt at the margins – a fact that inheres in any definition – does not negate the essence and application of that definition in clear cases." The court also described how to determine whether specific actions fall within the proscriptions of an international norm, holding that the actions alleged should be compared with actions that international adjudicatory bodies have found to be proscribed by the norm in question. It therefore examined decisions by institutions such as the Human Rights Committee, the European Court of Human Rights, and the African Commission on Human and Peoples' Rights to determine that pushing, hitting, and choking a plaintiff during one day of incarceration did not constitute cruel, unusual, or degrading treatment, whereas forcing a hand into a plaintiff's vagina did constitute cruel, inhuman, or degrading treatment.
Corporate liability under the statute
In 2011, there was a circuit split regarding whether corporations, as opposed to natural people, could be held liable under the ATS. In 2010, the Second Circuit Court of Appeals held in Kiobel v. Royal Dutch Petroleum Co. that "customary international law has steadfastly rejected the notion of corporate liability for international crimes" and thus that "insofar as plaintiffs bring claims under the ATS against corporations, plaintiffs fail to allege violations of the law of nations, and plaintiffs' claims fall outside the limited jurisdiction provided by the ATS". But the Seventh Circuit Court of Appeals, the Ninth Circuit Court of Appeals, and the D.C. Circuit Court of Appeals all ruled that corporate liability is possible under the statute.
The U.S. Supreme Court granted certiorari on October 17, 2011, to answer the question of corporate liability. After arguments on February 28, 2012, the Court ordered the case to be reargued the following term on the separate question of extraterritoriality. On April 17, 2013, in Kiobel v. Royal Dutch Petroleum Co., the Court issued a decision affirming the Second Circuit's decision, but on different grounds, holding that the ATS did not create jurisdiction for a claim regarding conduct occurring outside the territory of the United States, leaving the question of corporate liability unresolved.
In Jesner v. Arab Bank, PLC, the Supreme Court again revisited the question of corporate liability and ruled that foreign corporations may not be sued under the ATS. The only parts of the opinion that commanded a majority of the court, however, expressly limited its holding to suits against foreign corporations. The concurring opinions by Justices Alito and Gorsuch focused on foreign relations concerns with foreign corporations. Justice Alito expressly limited his concurrence to foreign corporations: "Because this case involves a foreign corporation, we have no need to reach the question whether an alien may sue a United States corporation under the ATS." Because the majority opinion was limited to foreign corporations, it is possible that Jesner does not settle the question of corporate liability for U.S. corporations.
Prominent cases under the statute
Doe v. Unocal
In September 1996, four Burmese villagers filed suit against Unocal and its parent company, the Union Oil Company of California; in October 1996, another fourteen villagers also brought suit. The suits alleged various human rights violations, including forced labor, wrongful death, false imprisonment, assault, intentional infliction of emotional distress and negligence, all relating to the construction of the Yadana gas pipeline project in Myanmar, formerly Burma.
In 2000, the district court dismissed the case on the grounds that Unocal could not be held liable unless Unocal wanted the military to commit abuses, and that plaintiffs had not made this showing. Plaintiffs appealed and ultimately, shortly prior to when the case was to be argued before the Ninth Circuit en banc court in December 2004, the parties announced that they had reached a tentative settlement. Once the settlement was finalized in March 2005, the appeal was withdrawn and the district court opinion from 2000 was also vacated.