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The Alien Tort Statute and the Law of Nations Anthony J The University of Chicago Law Review Volume 78 Spring 2011 Number 2 @2011 by The University of Chicago ARTICLES The Alien Tort Statute and the Law of Nations Anthony J. Bellia Jrt & Bradford R. Clarktt Courts and scholars have struggled to identify the original meaning of the Alien Tort Statute (A TS). As enacted in 1789, the A TS provided "[that the district courts ... shall ... have cognizance ... of all causes where an alien sues for a tort only in violation of the law of nations or a treaty of the United States." The statute was rarely invoked for almost two centuries. In the 1980s, lower federal courts began reading the statute expansively to allow foreign citizens to sue other foreign citizens for all violations of modern customary international law that occurred outside the United States. In 2004, the Supreme Court took a more restrictive approach. Seeking to implement the views of the First Congress, the Court determined that Congress wished to grant federal courts jurisdiction only over a narrow category of alien claims "correspondingto Blackstone's three primary [criminal] offenses [against the law of nations]: violation of safe conducts, infringement of the rights of ambassadors, and piracy." In this Article, we argue that neither the broaderapproach initially endorsed by t Professor of Law and Notre Dame Presidential Fellow, Notre Dame Law School. tt William Cranch Research Professor of Law, The George Washington University Law School. We thank Amy Barrett, Tricia Bellia, Curt Bradley, Paolo Carozza, Burlette Carter, Anthony Colangelo, Michael Collins, Anthony D'Amato, Bill Dodge, Rick Garnett, Philip Hamburger, John Harrison, Duncan Hollis, Bill Kelley, Tom Lee, John Manning, Maeva Marcus, Mark McKenna, Henry Monaghan, David Moore, Julian Mortenson, Sean Murphy, John Nagle, Ralph Steinhardt, Paul Stephan, Ed Swaine, Jay Tidmarsh, Roger Trangsrud, Amanda Tyler, Carlos Vizquez, Julian Velasco, and Ingrid Wuerth for helpful comments. In addition, we thank participants in the 2010 Potomac Foreign Relations Law Roundtable at The George Washington University Law School, the 2010 Workshop of the International Law in Domestic Courts Interest Group of the American Society of International Law at the University of Virginia School of Law, and faculty workshops at The George Washington University and Notre Dame Law Schools. We give special thanks to research librarian Patti Ogden for her exceptional, expert research assistance. We also thank Notre Dame law students and alumni Nick Curcio, Katie Hammond, John Lindermuth, and Carolyn Wendel and George Washington University law students and alumni Benjamin Kapnik, Heather Shaffer, and Owen Smith for excellent research assistance. 445 446 The University of Chicago Law Review [78:445 lower federal courts nor the more restrictive approach subsequently adopted by the Supreme Court fully captures the original meaning and purpose of the ATS. In 1789, the United States was a weak nation seeking to avoid conflict with other nations. Every nation had a duty to redress certain violations of the law of nations committed by its citizens or subjects against other nations or their citizens-from the most serious offenses (such as those against ambassadors) to more commonplace offenses (such as violence against private foreign citizens). If a nation failed to redress such violations, then it became responsible and gave the other nation just cause for war. In the aftermath of the Revolutionary War, Congress could not rely upon states to redress injuries suffered by aliens (especially British subjects) at the hands of Americans. Accordingly, the First Congress enacted the ATS as one of several civil and criminal provisions designed to redress law of nations violations committed by United States citizens. The A TS authorized federal court jurisdiction over claims by foreign citizens against United States citizens for intentional torts to person or personalproperty. At the time, both the commission of-and the failure to redress-such "torts" violated "the law of nations." The statute thus employed these terms to create a self-executing means for the United States to avoid military reprisals for the misconduct of its citizens. Neither the A TS nor Article III, however, authorizedfederal court jurisdictionover tort claims between aliens. Indeed, federal court adjudicationof at least one subset of such claims-alien-alienclaims for acts occurring in another nation's territory- would have contradictedthe statute'spurpose by putting the United States at risk of foreign conflict. Despite suggestions that the true import of the ATS may never be recovered, the original meaning of the statute appears relatively clear in historical context: the ATS limited federal court jurisdiction to suits by aliens against United States citizens but broadly encompassed any intentional tort to an alien's person or personalproperty. INTRO D UCTIO N..................................................................................................................... 447 I. MODERN CONFUSION REGARDING THE ALIEN TORT STATUTE ............................. 458 A . Early Invocation of the A TS..............................................................................458 B. Filartigaand the Modern Expansion of the ATS............................................459 C . Sosa and the A TS ................................................................................................ 462 D . The A TS in H istorical Context..........................................................................465 II. ALIEN CLAIMS AND THE SOVEREIGNTY OF NATIONS .............................................. 466 A. State Responsibility for Individual Offenses under the Law of Nations......471 B. Redress for Offenses against the Law of Nations in England ....................... 477 1. Criminal punishment to prevent violations of the law of nations ......... 478 2. Civil rem edies as redress ............................................................................ 481 C. Refraining from Interfering with Other Nations' Sovereignty......................484 III. LAW OF NATIONS VIOLATIONS UNDER THE ARTICLES OF CONFEDERATION........494 A . Redressing Law of Nations Violations ............................................................. 494 B. Ongoing Law of Nations Violations..................................................................498 1. Obstructing claims of British creditors.....................................................498 2. Failing to redress acts of violence against British subjects.....................501 3. State attem pts to provide redress..............................................................503 IV. THE ORIGINAL MEANING OF THE ALIEN TORT STATUTE.......................................507 A. Enlisting Federal Court Jurisdiction to Avoid War........................................510 1. Ambassadorial, admiralty, and foreign diversity jurisdiction................510 2011]1 The Alien Tort Statute and the Law of Nations 447 2. Criminal offenses against the United States ............................................ 513 3. A lien tort claim jurisdiction ....................................................................... 515 B. Abiding by the Limitations of Article III.........................................................525 C. Avoiding Judicial Violations of the Law of Nations.......................................529 D. The ATS and Other Questions Surrounding the First Judiciary Act ........... 530 1. The ATS and safe conduct violations.......................................................530 2. The ATS and ambassadorial and admiralty jurisdiction........................536 V. HISTORICAL MEANING AND PRESENT-DAY ATS APPLICATIONS .......................... 539 A. The Historical Determinations of Sosa ............................................................ 540 B. U nresolved H istorical Questions ...................................................................... 545 CO N CLU SIO N......................................................................................................................... 551 INTRODUCTION Although courts and commentators have offered a wide range of theories regarding the Alien Tort Statute' (ATS), the original meaning of the statute has remained elusive. As enacted in 1789, the ATS provided that "the district courts ... shall [ ] have cognizance, concurrent with the courts of the several States, or the circuit courts, as the case may be, of all causes where an alien sues for a tort only in violation of the law of nations or a treaty of the United States."2 The statute was rarely invoked for almost two centuries. Courts and commentators have struggled to recover the original meaning of the ATS and to apply the statute in light of changed circumstances, particularly changes in the scope and content of customary international law. The statute identifies the plaintiff as an alien, but does not specify the nationality of the defendant. Nor does the statute expound the meaning of "a tort only in violation of the law of nations."' In 1980, lower federal courts began the modern practice of reading the ATS expansively to allow foreign citizens to sue other foreign citizens for violations of modern customary international law that occurred outside the United States.' In Sosa v Alvarez-Machain,' the Supreme Court took a more restrictive approach. Without expressly addressing the propriety of the party alignment, the Court rejected a claim by a Mexican citizen suing another Mexican citizen
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