The Alien Tort Statute and the Law of Nations
Anthony J. Bellia Jr.
Notre Dame Law School
Bradford R. Clark
George Washington University Law School
May 10, 2011
78 U. Chi. L. Rev. 445 (2011)
Notre Dame University Legal Studies Paper No. 10-12
George Washington University Legal Studies Research Paper No. 545
Courts and scholars have struggled to identify the original meaning of the Alien Tort Statute (ATS). As enacted in 1789, the ATS provided "[t]hat the district courts... shall... have cognizance... of all causes where an alien sues for a tort only in violation of the law of nations or a treaty of the United States." The statute was rarely invoked for almost two centuries until, in the 1980s, lower federal courts began reading the statute expansively to allow foreign citizens to sue other foreign citizens for violations of modern customary international law that occurred outside the United States. In 2004 in Sosa v. Alvarez-Machain, the Supreme Court addressed the statute for the first time and took a more restrictive approach than lower courts. Seeking to implement the views of the First Congress, the Court determined that Congress wished to grant federal courts jurisdiction only over a narrow category of actions "corresponding to Blackstone’s three primary [criminal] offenses [against the law of nations]: violation of safe conducts, infringement of the rights of ambassadors, and piracy." In this Article, we argue that neither the broader approach initially endorsed by lower federal courts nor the more restrictive approach subsequently adopted by Sosa fully captures the original meaning and purpose of the ATS. In 1789, the United States was a weak nation seeking to avoid conflict with other nations. Every nation had a duty at the time to redress certain violations of the law of nations committed by its citizens or subjects against other nations or their citizens - from the most serious offenses (such as those against ambassadors) to more mundane offenses (such as violence against private foreign citizens). If a nation failed to redress such violations, then it became responsible to the other nation, and gave the other nation just cause for war. In the aftermath of the Revolutionary War, Congress could not rely upon states to redress injuries suffered by British subjects at the hands of Americans. Accordingly, the First Congress enacted the ATS as one of several civil and criminal provisions designed to redress law of nations violations committed by U.S. citizens. The ATS authorized federal court jurisdiction over claims by foreign citizens against U.S. citizens for intentional torts to person or personal property. The statute thereby provided a self-executing means for the United States to avoid military reprisals for the misconduct of its citizens. Neither the ATS nor Article III, however, authorized federal court jurisdiction over claims between aliens. Indeed, federal court adjudication of at least one subset of such claims - alien-alien claims for acts occurring in another nation’s territory - would have contradicted the statute’s purpose by putting the United States at risk of foreign conflict. Despite suggestions that the true import of the ATS may never be recovered, the original meaning of the statute is relatively clear in historical context: the ATS limited federal court jurisdiction to suits by aliens against U.S. citizens, but encompassed any intentional tort to an alien’s person or personal property.
Number of Pages in PDF File: 109
Keywords: Alien Tort Statute, ATS, ATCA, sosa, filartiga, law of nations, customary international law, international law, common law, treaties, federal courts, federal common law, constitution, Article III, First Judiciary Act, Judiciary Act of 1789, process act, Congress, perfect rights, vattelAccepted Paper Series
Date posted: March 7, 2011 ; Last revised: February 17, 2013
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