Two Myths About the Alien Tort Statute

38 Pages Posted: 3 May 2014 Last revised: 27 Jun 2014

Anthony J. Bellia Jr.

Notre Dame Law School

Bradford R. Clark

George Washington University Law School

Date Written: April 28, 2014

Abstract

In Kiobel v. Royal Dutch Petroleum Co., the Supreme Court applied the presumption against extraterritorial application of U.S. law to hold that the Alien Tort Statute (ATS) did not encompass a claim between aliens for misconduct that occurred in another nation. Without much elaboration, the Court stated that the ATS only encompasses claims that “touch and concern the territory of the United States...with sufficient force to displace the presumption.” As it did in Sosa v. Alvarez-Machain, the Kiobel Court purported to rest its decision on the original public meaning of the ATS when enacted in 1789. The Court, however, misperceived the original meaning of the statute by accepting two mistaken historical claims about the ATS advanced by academics and lower courts. First, the Court accepted the notion that incidents involving the rights of ambassadors prompted the First Congress to enact the ATS. Second, the Court endorsed the idea that the ATS was originally meant to cover only three “torts” that corresponded to the three criminal offenses against the law of nations emphasized by Blackstone in his Commentaries — namely, torts against ambassadors, violations of safe conducts, and claims relating to piracy. Both propositions lack substantial support in the historical record and oversimplify the political context in which the statute was enacted. To address incidents involving ambassadors, the First Congress enacted distinct jurisdictional and criminal provisions, including vesting original jurisdiction over claims by ambassadors in the Supreme Court. Indeed, the First Congress enacted specific jurisdictional and criminal provisions to address all three of the “Blackstone crimes.” The ATS served a different purpose. Congress enacted the statute to cover a distinct category of claims by foreign citizens against U.S. citizens for acts of violence that none of these other provisions adequately addressed. The Court’s reliance on these two myths in Sosa and Kiobel led it to misconstrue the ATS and, in certain respects, to unduly narrow the statute’s application. In future cases, the Court should abandon these myths and recognize that the ATS was originally meant to apply (1) to a broader range of tort claims by aliens, and (2) only to claims against U.S. citizens — a jurisdictional limitation that the Court has yet to address.

Keywords: alien tort statute, international law, Kiobel, Sosa, Filartiga, ambassador, safe conduct, piracy, Blackstone, first judiciary act, Judiciary Act of 1789, Marbois

JEL Classification: K13, K33, K41

Suggested Citation

Bellia Jr., Anthony J. and Clark, Bradford R., Two Myths About the Alien Tort Statute (April 28, 2014). Notre Dame Law Review, Vol. 18, No. 1609, 2014; Notre Dame Legal Studies Paper No. 1420; GWU Law School Public Law Research Paper No. 2014-16; GWU Legal Studies Research Paper No. 2014-16. Available at SSRN: https://ssrn.com/abstract=2431860

Anthony J. Bellia Jr.

Notre Dame Law School ( email )

P.O. Box 780
Notre Dame, IN 46556-0399
United States
574-631-9353 (Phone)
574-631-8078 (Fax)

Bradford R. Clark (Contact Author)

George Washington University Law School ( email )

2000 H Street, N.W.
Washington, DC 20052
United States
202-994-2073 (Phone)
202-994-9446 (Fax)

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