The History, Nature, and Reach of the Alien Tort Claims Act
20 Pages Posted: 30 Oct 2009
Date Written: October 30, 2009
This essay identifies a history of the Alien Tort Claims Act unknown to the Supreme Court when it decided in Sosa, contrary to early cases and opinions of the Attorneys General and a long line of cases after the landmark Filartiga case, that the ATCA does not provide a cause of action. If the Supreme Court revisits the issue, the history identified should cause the Court to reverse its ruling in Sosa concerning the statute’s creation of a cause of action. The essay also identifies relevant judicial power to identify and clarify customary international law, the standard of sufficient definability, and the role of the ATCA as implementing legislation that incorporates international law by reference and executes any non-self-executing treaty for use in civil suits by alien plaintiffs.
Keywords: access to courts, ATCA, ATS, cause of action, civil action, customary international law, denial of justice, Filartiga, Founders, history, human right, incorporation by reference, judicial power, jurisdiction, jus cogens, right to a remedy, self-executing, Sosa, treaty, universal, war crime
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