This Article explains how the Alien Tort Statute (ATS) began in the late eighteenth century as a national security statute that the First Congress and early federal district judges saw as a way to afford damages remedies to British merchants, creditors, and other subjects whose persons or property were injured under circumstances in which treaties or the law of nations assigned responsibility to the United States. Torts committed within the United States by private American citizens were the most likely such circumstances. The ultimate aims of the statute were to avoid renewed war with Great Britain and the other European powers and to encourage commerce and trade with the same. Two centuries later, the ATS was reborn as an international human rights statute at a time when the United States had become a global superpower with a global human-rights agenda during the administration of President fimmy Carter. Now that the Supreme Court's holding in Kiobel v. Royal Dutch Petroleum Co. has undermined the international human rights vision of the ATS, this Article suggests that the statute be used once again as a way to afford aliens money damages when they suffer torts under circumstances where the United States bears sovereign responsibility under contemporaneous international law.
The nineteen key words of the Alien Tort Statute have survived intact since 1789: a U.S. district court has original jurisdiction of a suit brought by an "alien ... for a tort only ... in violation of the law of nations or a treaty of the United States." (1) But the statute has lived two different lives so far, and the U.S. Supreme Court's decision in Kiobel v. Royal Dutch Petroleum Co. (2) will likely give birth to another.
This Article examines the past (1789-1795), present (1980-2013), and future (2013-) of the Alien Tort Statute (ATS) as a case study in how the role of federal judicial power in U.S. foreign relations and policymaking has evolved. The focus will be on how the statute and its implementation over time must be understood not only in terms of the traditional lawyerly tools of statutory interpretation and development through case law, but more broadly as it relates to the changing global context and the standing of the United States in the world.
The ATS was enacted in 1789 as a national security statute affording aliens access to newly created federal district courts to obtain damages for noncontract injuries to their persons or property for which the United States bore responsibility under contemporaneous international law. (3) One such law of nation obligation at the time was something William Blackstone called a general implied safe conduct. "The general implied safe conduct [was] an extraordinarily broad protection for aliens, essentially converting any injury to their person or property within a country into an international law violation by virtue of the fact that the victim was a friendly or neutral alien. In America of 1789, this would have covered every citizen or subject of a European state since the United States was not then at war." (4) The underlying aims were to keep the peace with the European great powers and to encourage their merchants and bankers to do business with the people of a largely agrarian revolutionary state by promising a credibly neutral forum for dispute resolution in cases of property damage or personal injury. (5) Even today, a high priority for developing nations, particularly those born of revolution or war (the United States was the product of both), is creating national fora for dispute resolution that appear fair to potential foreign lenders, investors, and businesses.
Two centuries later, the national security statute was reborn as an international human rights statute. The original reasons for the ATS were long forgotten as the United States had become a great power, and then a superpower and the undisputed hegemon of the world economy. In this context, progressive legal entrepreneurs seized upon the protean plain language of the ATS to recast it as a congressional license for aliens to bring lawsuits in U.S. federal courts alleging international human rights claims occurring anywhere in the world, so long as there was personal jurisdiction over the alleged tortfeasor. (6) This included so-called "foreign-cubed suits": suits by foreigners against other foreigners based on acts in a foreign country. This second incarnation of the ATS, baptized by the 1980 decision of the U.S. Court of Appeals for the Second Circuit in Filartiga v. Pena-Irala, (7) was still halfway faithful to the aims of the original enactment insofar as it emphasized the First Congress's commitment to affording a private damages remedy for violations of international law. (8) However, it importantly left out the specific concern with such violations that might subject the United States to trade sanctions or military retaliation by other more powerful states.
Notwithstanding this crucial oversight, the Filartiga variation of the ATS took root in fertile soil during the age of Soviet-American detente. The second life of the ATS supplemented the centrality of international human rights to President Jimmy Carter's foreign policy agenda (9) by deploying the judicial branch as an enabler of lawsuits against atrocities committed by the agents of Cold War allies (10)--allies whom the executive branch had to be far more sensitive about publicly rebuking. The new global role for the U.S. federal courts of enforcing individual rights against the state also resonated with the public rights litigation model then ascendant in the United States. (11) With the end of the Cold War, a modern Congress implicitly endorsed the Filartiga interpretation of the ATS by enacting the Torture Victim Prevention Act of 1991, a new statute affording both aliens and U.S. citizens a right to sue foreign state actors in U.S. courts for torture or extrajudicial killings. (12) And, in 2004, in its first direct foray into ATS litigation, the U.S. Supreme Court also validated the Filartiga approach with a six-to-three decision in Sosa v. Alvarez-Machain, (13) although the majority rejected the specific international law claim at issue and tried to formulate a historically grounded doctrinal test that curtailed overly ambitious international law claims. (14)
The Supreme Court's 2013 decision in Kiobel v. Royal Dutch Petroleum Co. marks an attempt to end the cosmopolitan second life of the ATS launched by Filartiga. The United States no longer appears to have the luxury or the appetite for championing international human rights claims, and the prevailing view is that the judicial branch should defer to the political branches in U.S. foreign relations and policymaking. Nor, for that matter, does it seem prudent to allocate scarce U.S. taxpayer-funded judicial resources to the handling of foreign-cubed suits with no discernible benefit to U.S. interests, and, indeed, high potential for damaging these interests by meddling in the internal politics of other countries, including great powers with spotty human rights records like China and Russia. The fact that all the Justices agreed on the holding in Kiobel indicates just how much the international setting has changed since 2004.
What will happen to ATS litigation in the future? On the one hand, the Kiobel Court did not explicitly repudiate Sosa, which hesitatingly but clearly endorsed Filartiga, (15) Accordingly, some have proposed a more modest version of the Filartiga approach. Justice Breyer in his Kiobel concurrence, for instance, suggested allowing ATS suits for extraterritorial torts in violation of international law against defendants who have taken refuge in the United States. (16) On the other hand, the majority opinion in Kiobel was decidedly hostile to the international law claims of aliens against other aliens in foreign countries, grafting onto the Filartiga root a property-law transplant: actionable claims under the ATS must at minimum "touch and concern the territory of the United States." (17) By so doing, the Kiobel Court restored something the Filartiga interpretation of the ATS had obscured--the fact that the statute was intended for aliens who had a grievance with a U.S. nexus.
The normative claim of this Article is that we should go "back to the future," by reclaiming the most accurate original meaning of the ATS as a national security statute giving aliens access to U.S courts to obtain money damages for injuries for which the United States plausibly bears state responsibility under international law. (18) The negative face of this normative claim is that the post-Kiobel future of the ATS should shed its Filartigan pan-global gloss as a far-ranging international human rights statute. In this sense, the Kiobel decision was a positive step.
At the same time, Kiobel& weighty reliance on where the relevant conduct giving rise to an ATS action took place is unduly restrictive. (19) In some cases the United States may have been the prime mover behind torts committed in other countries by foreigners on its behalf, as witnessed by the facts of Sosa itself. (20) The fulcrum of the inquiry into what is actionable under the ATS should focus, accordingly, on whether the United States may be held responsible under international law for allegedly tortious conduct because, for instance, the conduct (1) violated specific U.S. treaty obligations, (2) occurred in the United States, or (3) was committed abroad by U.S. private persons acting in a public capacity or by non-U.S. agents of the U.S. government. Most of the time the relevant conduct will consist of acts within U.S. territory, but this will not be true all of the time. Of course, this proposed rule of decision is consistent with Kiobels holding which conceded that the presumption against extraterritorial application might be "displace[d]" where the tort claims "touch and concern the territory" of the...