Law As Integrity and the Alien Tort Statute

Abstract

The Alien Tort Statute (ATS) is approaching a pivotal crossroads. For the first time

in its 40-year “modern line,” the Supreme Court has signaled the prospect of shutting

the door to ATS claims for good. This death knell stems from the muddied evolution of

ATS jurisprudence and the failure to resolve its fundamental debates. At its root, this

debate concerns two “Core Controversies”: (1) whether the ATS is strictly jurisdictional,

requiring a separate statute to establish a cause of action, or whether federal courts can

use their common law power to recognize causes of action under the ATS itself; and

(2) whether the ATS facilitates a form of “universal jurisdiction,” meaning claims

between foreign citizens, or whether it is limited to “sovereign-specific” claims between

a foreign citizen and U.S. citizens. Both controversies stem from a contradictory premise

set by the Supreme Court in 2004, where it held that the ATS is strictly jurisdictional

yet includes three “historical torts” within its meaning and the prospect of recognizing

new law of nations torts so long as they were “specific, universal, and obligatory” and

comparable to their 18th Century paradigms.

In an effort to defend the role of the ATS in the federal system, this Article presents a

jurisprudential approach to resolve these long-standing debates. “Law as integrity” is a

non-positivist theory which argues the ATS consists of rules, standards, and principles.

Critically, the foundational principle—ensuring that federal courts are available to foreign

citizens who suffer international law violations for which other nations may expect

the United States to provide a forum for redress—provides the key to understanding the

limits and latitudes of the ATS from its original passage in 1789 up until present day.

Viewing the ATS through the lens of law as integrity resolves the two Core Controversies.

First, federal courts can use their common law power to recognize new causes of

action under the “tort . . . in violation of the law of nations” standard. This distinguishes

the “Law of Nations” as a set of duties and responsibilities between states from

the “law of nations standard” within the text of the ATS itself. Second, the ATS is

limited to claims between an “alien” and a U.S. citizen (person or entity), satisfying the strictures of “alienage jurisdiction” under Article III of the U.S. Constitution. In

developing ATS jurisprudence, federal courts must fulfill their “dual role” of (1) looking

to sources of customary international law to determine whether a “tort . . . in violation

of the law of nations” has ripened into a justiciable cause of action; and (2) fashioning

rules of decision in secondary doctrines such as “aiding and abetting” liability. This

Article offers a jurisprudential analysis to the meaning and scope of the ATS, affirming

its capacity to embrace modern precepts of customary international law while remaining

faithful to its original text and objectives.

Keywords: human rights, statutory interpretation, alien tort statute, federal courts, transnational law, jurisprudence