Taking Tort Law Seriously in the Alien Tort Statute

Abstract:     
This paper, which was prepared for a conference on "Corporate Liability for Grave Breaches of International Law" held at Brooklyn Law School, looks at the problem of identifying the source of claims for civil redress under the Alien Tort Statute ("ATS"). In the recent South African ATS case, the Second Circuit noted that the plaintiffs' ability to hold the defendant corporations liable for aiding and abetting depended in on the source of the definition of aiding and abetting. A definition based on the domestic law of torts (e.g. the Restatement) would have provided a more plaintiff-friendly rule than a definition based on international human rights law (e.g. the Rome Statute).

In this article I note that, although the Second Circuit was wrong in its particulars (it turns out that the definition of aiding and abetting in the Restatement is virtually identical to the definition accepted as a matter of practice in international law), the question posed by the Second Circuit is an important one to answer, since there will be circumstances when the source of the tort law in the ATS will matter a great deal. I argue against what I call the "two step" approach: the view that, once jurisdiction is established under the ATS, the defendant may be held liable for any tort that is causally related to the international law violation that created the jurisdiction. I will argue, instead, that there must be substantive alignment between the grant of jurisdiction and the interest violated which gives a right to redress to the plaintiff. I conclude by arguing that federal courts must take into account transnational tort principles when identifying the "tort" in the ATS, and that may sometimes produce rights to redress that are not identical to analogous tort claims under the Restatement.

Number of Pages in PDF File: 29

Accepted Paper Series