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The Alien Tort Statute and the Law of Nations

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The Alien Tort Statute and the Law of Nations The Alien Tort Statute and the Law of Nations Anthony J. Bellia Jr.* Bradford R. Clark** INTRODUCTION Although courts and commentators have offered a wide range of theories in recent years, the original meaning of the Alien Tort Statute (ATS) has remained elusive. As originally enacted in 1789, the ATS provided ―[t]hat the district courts .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.‖1 The statute was rarely invoked for almost two centuries. Courts and commentators have struggled to interpret the ATS 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 interpreting the ATS broadly to allow foreign citizens to sue other foreign citizens for violations of modern customary international law that occurred outside the United States.2 In Sosa v Alvarez-Machain,3 the Supreme Court took a more cautious approach. Without expressly addressing the propriety of the party alignment, the Court rejected a claim by a Mexican citizen suing another Mexican citizen as outside the scope of the ATS.4 Specifically, the Court concluded that Sosa‘s claim for arbitrary detention did not constitute a tort in violation of the law of * Professor of Law and Notre Dame Presidential Fellow, Notre Dame Law School. ** William Cranch Research Professor of Law, George Washington University Law School. We thank Amy Barrett, Tricia Bellia, Paolo Carozza, Burlette Carter, Rick Garnett, Philip Hamburger, John Harrison, John Manning, Maeva Marcus, Mark McKenna, Sean Murphy, John Nagle, Ralph Steinhardt, Ed Swaine, Jay Tidmarsh, Roger Trangsrud, Amanda Tyler, Carlos Vázquez, Julian Velasco, and Ingrid Wuerth for helpful comments. In addition, we thank participants in the 2010 Potomac Foreign Relations Law Roundtable at George Washington University Law School, and in a faculty workshop at the Notre Dame Law School. We give special thanks to research librarian Patti Ogden for her exceptional expert research assistance. We also thank Notre Dame law students Nick Curcio, Katie Hammond, John Lindermuth, and Carolyn Wendel, and GW law student Benjamin Kapnik, for excellent research assistance. 1 Act of Sept 24, 1789 § 9, 1 Stat 73, 77. 2 See, for example, Filartiga v Pena-Irala, 630 F2d 876, 878 (2d Cir 1980) (adjudicating a dispute between Paraguayan citizens for an alleged torture that took place in Paraguay). 3 542 US 692 (2004). 4 Id at 697. 1 2 The University of Chicago Law Review [78:2 nations within the meaning of the statute. Although the Court interpreted the statute to leave the door ―open to a narrow class of international norms today,‖5 it stressed the need for ―judicial caution when considering the kinds of individual claims that might implement the jurisdiction conferred by the early statute.‖6 According to the Court, ―federal courts should not recognize private claims under federal common law for violations of any international law norm with less definite content and acceptance among civilized nations than the historical paradigms familiar when [the ATS] was enacted.‖7 Neither the broad approach endorsed by Filartiga nor the cautious approach adopted by Sosa accurately reflects the original purpose of the ATS. In 1789, the law of nations required nations to redress intentional torts committed by their citizens8 against the citizens of another nation. If a nation failed to redress such injuries, then it became responsible to the other nation for a violation of the law of nations, and gave the other nation just cause for war. The First Congress was undoubtedly aware of these principles and enacted the ATS in order to comply with the United States‘ obligations under the law of nations and to avoid the serious consequences of failure to do so. In 1789, the United States was a weak nation seeking to avoid conflict with foreign nations. The Constitution was designed to enhance the United States‘s ability to comply with its various obligations under the law of nations—and thus prevent conflict with other nations. Article III authorized federal court jurisdiction over a number of cases implicating the foreign relations of the United States, including admiralty disputes and cases affecting ambassadors. By enacting the ATS, the First Congress enabled the United States to avoid a particular kind of law of nations violation. Under the law of nations, a nation became responsible for injuries that its citizens inflicted on aliens if it failed to provide an adequate means of redress—by prosecuting the wrongdoer criminally, imposing civil liability, or extraditing the offender to the aggrieved nation. Failure to redress such injuries violated the ―perfect rights‖ 5 Id at 729. 6 Id at 725. 7 Sosa, 542 US at 732. According to the Court, these paradigms consisted of ―torts corresponding to Blackstone‘s three primary offenses [against the law of nations]: violation of safe conducts, infringement of the rights of ambassadors, and piracy.‖ Id at 724. See William M. Blackstone, 4 Commentaries on the Laws of England 68 (Chicago 2002). 8 We use the word ―citizens‖ in this article to refer to citizens or subjects of a nation. 2011] The Alien Tort Statute and the Law of Nations 3 of the alien‘s home state, and gave it just cause for war.9 In the aftermath of the Revolutionary War, members of Congress did not believe that they could rely upon states to redress injuries suffered by British subjects at the hands of Americans. To ensure that the United States would not violate the law of nations, the First Congress enacted both criminal and civil statutes to redress harms inflicted by US citizens against aliens. Because early federal criminal jurisdiction did not clearly encompass all such harms, the ATS operated as a failsafe provision. The ATS gave British subjects (like all aliens) a right to sue Americans in federal court for torts that, if not redressed through a civil or criminal action, would put the United States in violation of the law of nations.10 By authorizing civil redress under the ATS, the United States simultaneously signaled to other nations its intent to comply fully with its obligations under the law of nations, and established a self-executing means of avoiding military reprisals against the United States for the misconduct of its citizens. This context suggests that the ATS was meant to allow aliens to sue US citizens when necessary to avoid US violations of the law of nations. At the same time, this context suggests that courts would not have understood the ATS to confer jurisdiction over claims between aliens for acts occurring abroad. The law of nations imposed no obligation on the United States to provide aliens with a forum for adjudicating such claims against one another. Thus, failure to adjudicate such claims would not have put the United States ―in violation of the law of nations.‖ To the contrary, at the time the ATS was adopted, adjudication of such claims arguably would have infringed upon the territorial sovereignty of foreign nations under the law of nations.11 Under these circumstances, Congress had no reason to authorize—and good reason to avoid—suits between aliens in federal court for acts occurring abroad.12 9 For a discussion of the importance of perfect rights under the law of nations and the U.S. Constitution, see Anthony J. Bellia Jr and Bradford R. Clark, The Federal Common Law of Nations, 109 Colum L Rev 1, 16–19 (2009). 10 See Curtis A. Bradley, The Alien Tort Statute and Article III, 42 Va J Intl L 587, 630-31 (2002) (describing how the ATS was ―consistent with the law of international responsibility in the late 1700s‖); Michael G. Collins, The Diversity Theory of the Alien Tort Statute, 42 Va J Intl L 649, 652 (2002) (describing sovereigns‘ obligation to remedy law of nations violations). 11 Historically, the law of nations recognized that ―every nation possesses an exclusive sovereignty and jurisdiction within its own territory.‖ Joseph Story, Commentaries on the Conflict of Laws, Foreign and Domestic, in Regard to Contracts, Rights, and Remedies, and Especially in Regard to Marriages, Divorces, Wills, Successions, and Judgments 19, 21 (Hilliard, Gray, and Co 1834). 12 Perhaps for this reason, courts have been reluctant to apply federal statutes extraterritorially absent a clear congressional intent to do so. See, for example, Morrison v National Australia Bank Ltd, 130 S Ct 2869, 2878 (2010) (―When a statute gives no clear indication of an extraterritorial application, 4 The University of Chicago Law Review [78:2 In addition to the text of the ATS—and the context against which Congress enacted it—the limited nature of federal judicial power under the Constitution suggests that the ATS was designed to encompass claims arising under the law of nations by aliens against US citizens. Article III extends the judicial power to only nine categories of cases and controversies. The first three categories are defined by reference to the subject matter of the case. The last six categories are defined by reference to the identity of the parties. Suits by aliens against US citizens fall within diversity jurisdiction over controversies ―between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.‖13 By contrast, suits by aliens against other aliens do not fall within Article III‘s diversity jurisdiction.
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