The Safe Conduct Theory of the Alien Tort Statute

Abstract:     
In this Article, Professor Lee introduces a novel explanation of the Alien Tort Statute (ATS) - a founding-era enactment that has achieved modern prominence as a vehicle for international human rights litigation. He demonstrates how the statute was intended to address violations of something called a "safe conduct" - a sovereign promise of safety to aliens from injury to their persons and property. The safe-conduct theory advances a new modern role for the ATS to redress torts committed by private actors - including aliens - with a U.S. sovereign nexus, and not for international law violations committed by anyone anywhere. In developing this contextual account, Professor Lee resolves uncertainty over the constitutional basis for the ATS and shows how, even with sparse conventional sources, the original meaning of an iconic founding-era statute might be recovered.

Working Paper Series