Domestic human rights enforcement after Kiobel.

AuthorBradley, Curtis A.

The panel was convened at 12:45 pm by its moderator, Katie Redford of EarthRights International, who introduced the panelists: Curtis Bradley of Duke Law School; Agnieszka Fryszman of Cohen Milstein, LLP; Kristin Linsley Myles of Munger Tolies & Olsen, LLP; and Ralph Steinhardt of George Washington University Law School. *


By Curtis A. Bradley ([dagger])

In thinking about the proper scope of international human rights litigation in U.S. courts, it is instructive to compare the two statutes that are often invoked together in this litigation: the Alien Tort Statute (ATS), which was first enacted in 1789, and the Torture Victim Protection Act (TVPA), which was enacted in 1992.

The TVPA expressly confers a cause of action for damages, whereas the ATS refers only to federal court jurisdiction. Relatedly, the TVPA contains restrictions on suit that one would expect from a cause of action statute--for example, a statute of limitations and an exhaustion of remedies requirement--whereas there is nothing like that in the ATS.The TVPA, moreover, is made available to both U.S. and non-U.S. plaintiffs, whereas the ATS is available only to alien plaintiffs. Finally, by referring to conduct under color of foreign law, the TVPA seems clearly to extend to conduct abroad, whereas the territorial reach of the ATS is much less clear from the text.

These differences are not surprising once one considers that the statutes almost certainly had very different purposes when enacted. In a nutshell, the TVPA was expressly intended to be a universal jurisdiction statute: it envisions suits by aliens against other aliens for conduct abroad. Indeed, it was this universal jurisdiction aspect of the statute that prompted concerns by both Republicans in the Senate and the first President Bush when the statute was enacted. (1) By contrast, although the historical record concerning Congress's intent in enacting the ATS is sparse, there are a number of indications--based on the text and context of the statute and the international law that existed when it was enacted--that it was designed for a very different purpose. This purpose was to give aliens access to the new national courts in situations in which the United States would have an obligation to provide redress for a tort committed against them--in other words, when the tort would implicate U.S. responsibility under the law of nations. (2)


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