The curious history of the Alien Tort Statute.

• Author: Stephens, Beth
• Position: Introduction through III. Separation of Powers and the Battle to Control International Law in the U.S. Legal System A. The Federal Courts and Customary International Law, p. 1467-1505

INTRODUCTION

The Alien Tort Statute (ATS) (1) has provoked extensive, passionate debate, despite the relatively modest practical import of ATS cases. The outsized controversy surrounding the statute reflects its role in a longstanding struggle for control over the interpretation and enforcement of international law, and over whether that law will serve as a meaningful restraint on the actions of states, state officials, and corporations. As a result, the history of the ATS offers a unique window into the modern history of international law.

Since the 1980 Filartiga decision first applied the eighteenth century statute to modern human rights claims, (2) only a handful of lawsuits have produced enforceable judgments for plaintiffs, while another handful settled, and a few dozen cases led to judgments that vindicated the plaintiffs' claims, but could not be enforced. Despite this limited litigation success, government officials, scholars, litigators, human rights activists, business leaders, and law students have written about the statute, (3) sought to replicate or repeal it, and argued about its impact. The Supreme Court decided ATS claims three times in the past ten years, in cases that attracted scores of amicus briefs. The executive branch has filed briefs or statements of interest in ATS cases at all levels of the federal court system. Business leaders assert that the ATS could derail the international economy, while human rights advocates praise the statute as a significant mechanism to attain human rights accountability.

The uproar surrounding the ATS reflects its position at the intersection of highly contentious modern disputes about international law. By authorizing private parties to bring claims for violations of human rights norms, ATS litigation institutionalizes a role for individuals and other non-state actors in the definition and implementation of international law, a role that, traditionally, states and state-run international organizations have monopolized. By raising such issues in the federal courts, modern ATS cases trigger highly contested questions about the roles of the three branches of the federal government in regulating the incorporation of international law into U.S. law. Despite its implications for these broader questions, however, the ATS remained relatively noncontroversial as long as the practical implications of the cases seemed minimal. However, when ATS claims began to target transnational corporations and government officials from the United States and its allies, both sectors reacted as if the very future of global capitalism and diplomatic relations were at risk.

Debates about the ATS mirror debates about international law. Both trigger concerted opposition when they threaten to serve as a viable constraint on government and corporate conduct. This Article offers a history of the ATS that analyzes the cases, the doctrinal debates, and the responses of human rights groups, business interests, and government actors in the context of the larger battle over international law and human rights.

The story begins in Part I with one of the few noncontroversial aspects of the statute: the well-known history of the ATS as a reflection of the Framers' decision to grant the national government control over foreign affairs, including enforcement of at least some norms of international law. The statute was largely ignored for almost 200 years, until, with the human rights movement of the late twentieth century as a backdrop, federal court decisions recognized the ATS as a means to enforce human rights norms. Part II describes the rapid expansion of human rights activism in the 1970s, the Filartiga decision, and the relatively uncontroversial ATS cases that followed. Although there were dissenting voices, early ATS cases and commentators generally welcomed ATS litigation as a key part of a movement to offer redress, accountability, and justice to victims and survivors of human rights abuses.

The honeymoon came to an end in the late 1990s, when a concerted critique of the doctrine underlying the cases coincided with a string of lawsuits against more powerful defendants: multinational corporations, officials from foreign states with political clout in the United States, and U.S. government officials. That combination triggered a backlash against modern ATS litigation that continues today. As explained in Part III, the doctrinal debates focused on the power to interpret and enforce international law, with emphasis on the competing powers of the judiciary and the executive branch. The Supreme Court first reviewed the ATS in 2004, (4) at the height of the controversy over expanded claims of executive power by the administration of President George W. Bush. The Court rejected the challenge to the ATS and offered a strong affirmation of judicial power, (5) a decision likely influenced by judicial resistance to the Bush Administration's controversial claims.

The Sosa decision did not resolve key questions about whether and under what circumstances ATS cases can target two sets of powerful defendants: multinational corporations and the officials of states that assert immunity on behalf of their officials, issues addressed in Part IV. Contentious debates about corporate-defendant ATS litigation reflect disputes about whether international law can serve as an effective restraint on the conduct of transnational corporations, and, if so, who has the authority to define and enforce that restraint. Similar concerns underlie an issue that gained particular salience during debates about the Bush Administration's mistreatment of detainees following the September 11, 2001 attacks: whether state officials implementing the policies of their governments can be held personally liable for violations of international law. This question pits supporters of international law as an enforceable limit on the conduct of government actors against those who argue that only states and their officials have the power to define and enforce that law.

Finally, Part V considers the current status of the ATS. The Supreme Court decision in Kiobel v. Royal Dutch Petroleum Co. (6) left intact the Sosa understanding of the statute as permitting federal courts to recognize common law causes of action for violations of international law, but imposed a presumption against extraterritoriality. (7) Debate over the meaning of Kiobel has already taken a familiar path. Those who favor international law limits on state and corporate actions argue that the decision permits ATS claims with greater ties to the United States than those present in Kiobel, while opponents insist that the decision ruled out all claims based on conduct in a foreign state. However, if the federal courts close their doors to human rights litigation, cases will gravitate to state courts, with a state-by-state effort to obtain redress for torts involving torture, summary execution, and similar abuses. At that point, the ATS will have come full circle. Enacted as a means to ensure federal court jurisdiction over claims impacting foreign states, the demise of the modern interpretation of the ATS will leave such cases to the varying rules of the courts of the fifty states.

The assault on the ATS that led to Kiobel reflects the vehemence of the state and corporate resistance to the development of meaningful means to enforce international law. That resistance has narrowed the scope of the ATS and left its future unclear. Nevertheless, the robust accountability movement that gave birth to the modern ATS and that took strength from it will, inevitably, continue to seek ways to assert human rights claims, whether through the ATS or new, alternative accountability mechanisms.

1. THE ORIGINS OF THE ALIEN TORT STATUTE

   At the time of its modern revival in 1980, the ATS had been virtually ignored for almost 200 years. In an oft-quoted line, Judge Friendly called the statute "a legal Lohengrin; although it has been with us since the first Judiciary Act ... no one seems to know whence it came." (8) Since Judge Friendly wrote, however, scholars have unearthed significant information about the likely origins of the statute and have clarified the eighteenth century jurisprudential tenets that help explain, in broad terms, the significance of the statute. One of the basic points of agreement is that the statute was part of a broad push to grant the newly created federal government power over foreign affairs. (9) In particular, courts and scholars generally agree that the Framers enacted the ATS in order to provide a federal court forum in which foreigners could seek remedies for at least some violations of international law. (10)

   Eighteenth century jurists recognized the existence of binding, unwritten natural laws that included the law of nations. (11) As stated repeatedly by the leading figures of the new government, (12) the law of nations was "part of the laws of [the United States], and of every other civilized nation." (13) U.S. law at the time did not distinguish between state and federal common law, so the law of nations, although unwritten, was a binding part of both state and federal law. (14)

   Prior to the adoption of the Constitution, the leaders of the Confederation's weak central government repeatedly expressed concern about their inability to enforce international law obligations (15) and noted that state resistance to enforcing international law--including the treaty obligation to repay British creditors--threatened the security of the Confederation. (16) Edmund Randolph, for example, wrote in 1787 that because "the law of nations is unprovided with sanctions in many cases," the Confederation might be "doomed to be plunged into war, from its wretched impotency to check offenses against this law." (17) Concern about the Confederation's lack of power over foreign affairs, including enforcement of international law, was one of the driving forces behind the...