2007] ATS RULES OF DECISION 461
default body of law in the American system,
in some situations state law
is a more appropriate source for federal courts to use to “fill the interstices”
22
21
of the ATS.
On this view, both the majority and the concurrence in Unocal incor-
rectly decided the choice of law issue for third party liability in ATS cases.
The majority erred in applying international law qua international law; its
crucial mistake came in footnote 23, where it argued that the choice between
international law and domestic law was unimportant since either
approach
resulted in substantially similar rules of decision.
This argument
fails to consider that, in an international system, international legal
principles
can be applied in a variety of ways.
As long as a forum’s rule
does not violate binding norms of international law, notions of comity
and the structures of the international and federal systems should give
deference to the forum’s particular embodiment of the international
principle. For its part, the concurrence correctly relied upon Kimbell
Foods and looked to federal common law in making its decision.
But it
ignored factors favoring application of state law, including federal policies
such as those embodied in the Rules of Decision Act (RDA).
The Note proceeds as follows. Part I reviews the ATS statutory history
and case law, with an eye toward highlighting the questions of law
that
such cases pose and explaining why those issues tend to arise.
Because
the greater likelihood of recovering money in a suit against a corporation
sued on complicity theories is likely to cause such cases to proliferate,
26
23
Part II evaluates domestic and international corporate complicity
21. The most well-known example of this is Erie Railroad Co. v. Tompkins, 304 U.S.
64, 77–78 (1938) (requiring application of state common law in diversity cases controlled
by section 34 of Judiciary Act of 1789, which was later enacted independently as Rules of
Decision Act (RDA)), though it only applies to cases arising under the diversity
jurisdiction. But a state law presumption is also used in federal common law situations to
furnish the appropriate federal rule of decision. See, e.g., United States v. Kimbell Foods,
Inc., 440 U.S. 715, 727–29 (1979) (adopting state law as appropriate rule of federal
common law “when there is little need for a nationally uniform body of law”).
22. Kimbell Foods, 440 U.S. at 727.
23. Unocal, 395 F.3d at 948 n.23.
24. See id. at 965–66 (Reinhardt, J., concurring).
25. 28 U.S.C. § 1652 (2000). The RDA states that “[t]he laws of the several states,
except where the Constitution or treaties of the United States or Acts of Congress
otherwise require or provide, shall be regarded as rules of decision in civil actions in the
courts of the United States, in cases where they apply.” Id.
24
25
26. See supra note 16 (describing greater potential for recovery on behalf of ATS
plaintiffs when corporations are sued). Even when corporations are sued, the likelihood of
any money changing hands remains small. The only confirmed case in which ATS
plaintiffs actually recovered any money was Unocal, which settled for about $30 million.
See Paul Magnusson, Legal Settlements: A Milestone for Human Rights, Bus. Wk., Jan. 24,
2005, at 63, 63. The difficulty in collecting on judgments in human rights cases is not
unique to the ATS. See Richard B. Lillich, Damages for Gross Violations of International
Human Rights Awarded by US Courts, 15 Hum. Rts. Q. 207, 207–08 (1993) (noting “the
unlikelihood of immediate enforcement of judgments” obtained in various human rights
cases). But see id. at 208 & n.5 (suggesting that judgment of about $2.5 million against
462 COLUMBIA LAW REVIEW [Vol. 107:457
doctrine as an example of an important issue that ATS courts often need
to decide. Part III discusses choice of law principles and their relationship
to the complicated questions presented in ATS
cases and concludes
by
suggesting an answer to the question underlying this entire inquiry—
what
source of law should be used in filling out the federal common law
of
the ATS—by
arguing that state law, while not the most appropriate
source
for every ATS
issue, will often be a better choice than the
alternatives.
I. J
URISPRUDENTIAL PROGRESSION OF THE ALIEN TORT STATUTE
Although the ATS is being used in ways that likely would not have
been envisioned by its drafters,
common characteristics between its historical
origins and its current uses do exist.
The most important characteristic
shared between the modern approach and the historical approach
is the general purpose of the statute.
The statute as written in
1789 appears to have been intended to provide a forum and a possible
remedy for international legal wrongs that otherwise would be unredressable,
a goal that modern ATS
advocates have expanded considerably.
28
27
Because of that common aim, a federal court will often face issues
Chile is likely to be enforced in non-ATS suit, Letelier v. Republic of Chile, 488 F. Supp.
665 (D.D.C. 1980), for assassination in District of Columbia of Chilean ambassador and
foreign minister).
27. See, e.g., Sosa v. Alvarez-Machain, 542 U.S. 692, 749–50 (2004) (Scalia, J.,
concurring in part and concurring in the judgment) (“[T]he Framers who included
reference to ‘the Law of Nations’ in Article I, § 8, cl. 10, of the Constitution would be
entirely content with the post-Erie system I have described, and quite terrified by the
‘discretion’ endorsed by the Court.”); Lee, supra note 1, at 838 (suggesting that original
intent of ATS was probably to provide forum for aliens to adjudicate mundane, everyday
torts). Of course, since Filartiga, the statute has become the basis for modern human
rights litigation in areas as diverse as the war on terror—by both victims of the terrorist
attacks and victims of the aggressive American campaigns against al Qaeda—and
international labor rights. See, e.g., Ibrahim v. Titan Corp., 391 F. Supp. 2d 10, 12 (D.D.C.
2005) (alleging corporate responsibility for abuse of prisoners by U.S. forces at Abu
Ghraib); Burnett v. Al Bakara Inv. & Dev. Corp., 274 F. Supp. 2d 86, 91 (D.D.C. 2003)
(seeking damages from entities alleged to have provided funding to al Qaeda); Sinaltrainal
v. Coca-Cola Co., 256 F. Supp. 2d 1345, 1348 (S.D. Fla. 2003) (alleging corporate
complicity in murder of union leader); see also Pagnattaro, supra note 16, at 205
(describing potential uses of ATS in international labor rights disputes).
28. See, e.g., Casto, supra note 4, at 490–91 (suggesting ATS was passed to placate
international calls for newly founded United States to obey law of nations); Lee, supra note
1, at 888 (noting need for ATS as remedy when individual American states would not
provide remedies for violation of safe conducts); Lorelle Londis, Comment, The
Corporate Face of the Alien Tort Claims Act: How an Old Statute Mandates a New
Understanding of Global Interdependence, 57 Me. L. Rev. 141, 147–48 (2005)
(“[Transnational corporations] often possess far greater power than nation-states, yet
they . . . [are not] answerable to any one sovereign authority. They may be answerable in
part to many different authorities, but there is no final law the international community
can point to that regulates th[ese] actor[s].”); see also Sarah Joseph, An Overview of the
Human Rights Accountability of Multinational Enterprises, in Liability of Multinational
Corporations Under International Law 75, 78–79 (Menno T. Kamminga & Saman Zia-
2007] ATS RULES OF DECISION 463
that have no clear rule of decision: In almost all circumstances, the case
would not be in federal court to begin with if there were some other clear
resolution to it, and it seems unavoidable that any application of the statute
would raise novel legal questions, incidental to the underlying substantive
law violations.
This Part explores the history of the ATS as well as some of the issues
that arise in ATS cases. After discussing the statutory history and case law
development of ATS jurisprudence in Parts I.A and I.B respectively, Part
I.C concludes by reviewing ATS decisions and some of the legal issues
presented in those proceedings.
A. History of the Alien Tort Statute
Academic commentary on the ATS has become legion,
making
only a brief description of ATS history necessary here. Professor Casto
provides a particularly useful description of the history leading up to the
inclusion of the ATS in the Judiciary Act of 1789.
Unlike many authors
31
and even some courts,
32
30
29
he does not believe that the statutory
Zarifi eds., 2000) (noting difficulties nation-states may face when regulating transnational
corporations).
29. See, e.g., Casto, supra note 4, at 510 (concluding that legislative history of ATS
suggests it should be given liberal interpretation); William S. Dodge, The Historical
Origins of the Alien Tort Statute: A Response to the “Originalists,” 19 Hastings Int’l &
Comp. L. Rev. 221, 224 (1996) [hereinafter Dodge, Historical Origins] (arguing that
history of ATS supports Filartiga’s approach to ATS interpretation); Diskin, supra note 2, at
815–21 (discussing case law history); Fuks, supra note 16, at 112 (suggesting bonded labor
claims as possible area post-Sosa ATS cases can occupy).
30. See Casto, supra note 4, at 488–510 (describing historical purposes of ATS).
31. See, e.g., Farooq Hassan, Panacea or Mirage? Domestic Enforcement of
International Human Rights Law: Recent Cases, 4 Hous. J. Int’l L. 13, 18 (1981) (noting of
ATS that “nothing meaningful is known of its origin” and “nothing is known about why it
was enacted”); Pagnattaro, supra note 16, at 211–12 (noting obscure origins of ATS).
Fortunately, historical scholarship on the topic has improved since Hassan’s bleak
statement in 1981.
32. See, e.g., IIT v. Vencap, Ltd., 519 F.2d 1001, 1015 (2d Cir. 1975) (“This old but
little used section is a kind of legal Lohengrin; although it has been with us since the first
Judiciary Act, no one seems to know whence it came.” (citations omitted)). It has become
almost a mantra for commentators and courts discussing the ATS to note its obscure
origins and infrequent use for its first two hundred years of existence. See, e.g., Filartiga v.
Pena-Irala, 630 F.2d 876, 887 & n.21 (2d Cir. 1980) (observing that ATS successfully served
as jurisdictional statute in only two cases prior to 1980); Donald J. Kochan, No Longer
Little Known but Now a Door Ajar: An Overview of the Evolving and Dangerous Role of
the Alien Tort Statute in Human Rights and International Law Jurisprudence, 8 Chap. L.
Rev. 103, 103–04 (2005) (“The federal Alien Tort Statute . . . has seen an interesting
evolution in the past twenty-five years after remaining almost entirely dormant for nearly
two hundred years since its passage . . . .”); Harold Hongju Koh, How Is International
Human Rights Law Enforced?, 74 Ind. L.J. 1397, 1414 (1999) (calling ATS “a little-known
eighteenth century statute”); see also Kenneth C. Randall, Federal Jurisdiction over
International Law Claims: Inquiries into the Alien Tort Statute, 18 N.Y.U. J. Int’l L. & Pol.
1, 4–5 & nn.15–16 (1985) (noting rarity with which ATS was invoked prior to Filartiga and
providing list of published cases that invoked it, only two of which were successful).
464 COLUMBIA LAW REVIEW [Vol. 107:457
history and original purpose of the ATS are difficult to discern.
The
following description is summarized primarily from his article.
Violations of the law of nations were actionable at common law, with
Blackstone stating that “[t]he principal offences against the law of nations
. . . are of three kinds:
1. Violation of safe conducts; 2. Infringements
of the rights of embassadors; and, 3.
Piracy.”
In an effort to
ensure the world that the fledgling United States would comply with the
law of nations, the Continental Congress passed a resolution requesting
that the states provide judicial remedies for violations of the law of nations,
specifically including those listed by Blackstone.
35
In making this
request of the states, the Continental Congress recognized the grave international
peace implications that could arise from a failure to provide
remedies
for law of nations violations
37
36
as well as its own inability to create
one.
38
The Congress’s worries were not without warrant. In 1784, a wellpublicized
international incident created a diplomatic furor.
The
Chevalier de Longchamps, a French citizen, committed an assault and
battery on Mr. Marbois, a member of the French diplomatic mission, in
the streets of Philadelphia.
Ultimately, de Longchamps was tried in a
Pennsylvania state court that found him guilty of state common law
crimes based on common law violations of the law of nations,
39
but this
conclusion only came after an international uproar revealed the inability
of the Continental Congress to enforce the law of nations.
The legislation
that eventually became the Alien Tort Statute,
part of the larger
Judiciary Act of 1789 that gave power to the newly created federal judici-
42
41
34
40
33
33. See Casto, supra note 4, at 488–89.
34. See id. at 489–95.
35. 4 William Blackstone, Commentaries *68; see also Casto, supra note 4, at 489
(discussing Blackstone’s three offenses).
36. See Casto, supra note 4, at 490 (citing 21 Journals of the Continental Congress
1774–1789, at 1136–37 (Gaillard Hunt ed., 1912)).
37. See id. at 481 (“When the [ATS] was passed, . . . a judicial remedy was necessary
[for international law violations] in order to assuage the anger of foreign sovereigns.”);
accord 4 Blackstone, supra note 35, at *68 (“[W]here the individuals of any state violate
this general law, it is then the interest as well as duty of the government under which they
live, to animadvert upon them with a becoming severity, that the peace of the world may be
maintained.”).
38. See Casto, supra note 4, at 490 (“[T]he Continental Congress had virtually no
legislative powers.”).
39. See id. at 491.
40. Id. at 492.
41. Id. at 492–93. Casto describes another international incident that occurred
during the ratification process that would have strengthened this view of the weak national
government: A constable arrested one of the servants of the Dutch ambassador in the
ambassador’s New York City residence. Again, state law provided the remedy as the
national government was still powerless to do anything about it. Id. at 494.
42. Judiciary Act of 1789, ch. 20, § 9, 1 Stat. 73, 77 (codified as amended at 28 U.S.C.
§ 1350 (2000)).2007] ATS RULES OF DECISION 465
ary, almost certainly contemplated this and similar incidents when it was
passed.
43
Other accounts of the passage of the ATS follow similar reasoning.
For example, Professor Lee’s “safe conduct theory” of the ATS suggests
that the structure of the Judiciary Act itself shows that the ATS was intended
to provide a remedy for the violation of safe conducts.
Two of
the three offenses listed in the Blackstone trilogy—piracy and offenses
against ambassadors—are given explicit remedies in other parts of the
Judiciary Act.
The Alien Tort Statute, by implication, would have been
intended to provide a remedy in federal courts for offenses against aliens
who did not have the same status as ambassadors—in other words, the
ATS covered violations of safe conduct, the single category of
Blackstone’s trilogy not otherwise addressed in the Judiciary Act.
45
Like
Professor Casto, Professor Lee views the Marbois incident and concern
that states would not provide remedies for similar incidents as part of the
motivation behind the passage of the statute.
47
This view of the motivation for the inclusion of the ATS in the Judiciary
Act has implications for the choice of law decision in ATS
cases.
At
the time of the Marbois incident, there seemed to be no question that the
common law of the states included causes of action for torts that violated
the law of nations.
The problem was not that state law was inadequate
in the sense that no cause of action was available in the states, but instead
48
44
46
43. See Casto, supra note 4, at 495 (“Members of the committee surely remembered
the Continental Congress’s ill-fated law of nations resolution and the intervening affronts
to foreign ambassadors.”); see also Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 782
(D.C. Cir. 1984) (Edwards, J., concurring) (“There is evidence . . . that the intent of this
section was to assure aliens access to federal courts to vindicate any incident which, if
mishandled by a state court, might blossom into an international crisis.”); Lee, supra note
1, at 880–81 (noting political expediency of providing forum to aggrieved aliens as method
to reduce risk of war).
44. See Lee, supra note 1, at 836–38 (arguing that ATS was intended to cover
guarantees of safe conduct between sovereign nations).
45. See id.
46. See id.; see also Diskin, supra note 2, at 812–13 (noting role of safe conduct in
minds of Alien Tort Statute’s authors).
47. See Lee, supra note 1, at 860–66. On this view, the Marbois incident technically
would not fall within the ambit of the ATS since Marbois was a member of a diplomatic
mission. But concern for the greater problem—unwillingness of states to permit aliens to
sue in their courts—would apply even to non-diplomats.
48. See Casto, supra note 4, at 489–90 (stating that common law included right of
action for violation of Blackstone’s law of nations categories). Of course, at the time the
ATS was passed, even Swift v. Tyson, 41 U.S. (16 Pet.) 1, 18–19 (1842) (holding that federal
common law provided rule of decision for federal courts sitting in diversity when no statute
controlled), was decades away from decision. Professor White thus points out that law of
nations violations were considered part of the general common law cognizable in both state
and federal courts. See G. Edward White, A Customary International Law of Torts 33
(Univ. of Va. Law Sch. Pub. Law & Legal Theory Working Paper Series, Paper No. 34,
2005), available at http://law.bepress.com/uvalwps/uva_publiclaw/art34 (on file with the
Columbia Law Review) (“There was . . . what might be called a pre-Erie law of nations, part of
the general law that both federal and state courts declared.”).
466 COLUMBIA LAW REVIEW [Vol. 107:457
that the federal government could not guarantee that a state would provide
a forum to vindicate the rights of the offended alien.
The ATS apparently
was passed to ensure a forum for aliens to enforce causes of action
that were otherwise assumed to be available.
49
Other interpretations of the original meaning of the ATS are less
convincing. For example, Professor Sweeney argues that the use of the
word “only” before the word “tort” had special meaning confining the
application of the statute to prize cases in admiralty courts.
The chief
obstacle to this argument is that the Judiciary Act already endowed federal
courts with jurisdiction over cases in admiralty, so it is difficult to see
what
additional work the statute would have been meant to do under
Professor
Sweeney’s theory.
51
A more credible argument for the motivation behind the passage of
the ATS is advanced by commentators who believe that customary international
law
52
was incorporated into federal common law.
Indeed, this
is the approach used to justify invocation of international law in Unocal.
53
However, this approach has been criticized for using underdeveloped
50
49. This discussion does not address other significant issues that the ATS invokes—for
example, how to justify constitutionally the jurisdiction of the federal courts over potential
cases between two aliens. See, e.g., Casto, supra note 4, at 471–72 & n.32 (noting that ATS
cases between two aliens do not fall within alienage jurisdiction of federal courts).
50. See Joseph Modeste Sweeney, A Tort Only in Violation of the Law of Nations, 18
Hastings Int’l & Comp. L. Rev. 445, 446–47 (1995).
51. See White, supra note 48, at 25 n.81 (arguing that Professor Sweeney does not
explain “why the ATS would have been necessary when the federal courts already had
jurisdiction over prize cases under the Constitution, and why no early cases interpreting
the ATS assumed that it referred only to a limited category of prize cases”).
52. Customary international law is defined by the Restatement (Third) as “law [that]
results from a general and consistent practice of states followed by them from a sense of
legal obligation.” Restatement (Third) of the Foreign Relations Law of the United States
§ 102(2) (1987).
53. See, e.g., Dodge, Historical Origins, supra note 29, at 239–40 (noting that
international law is today viewed as part of federal common law but that in 1789 it would
have been “general” common law). The two precedents most supportive of this view are
The Paquete Habana, 175 U.S. 677, 700 (1900) (“International law is part of our law, and
must be ascertained and administered by the courts of justice of appropriate jurisdiction as
often as questions of right depending upon it are duly presented for their
determination.”), and United States v. Smith, 18 U.S. (5 Wheat.) 153, 160–61 (1820)
(“What the law of nations on this subject is, may be ascertained by consulting the works of
jurists, writing professedly on public law; or by the general usage and practice of nations;
or by judicial decisions recognising and enforcing that law.”). This approach has the
benefit of avoiding constitutional jurisdiction concerns, but it also means that the
limitation of the ATS to suits by aliens was surplus: United States citizens would also have
the right to enforce violations of the federal common law in U.S. courts under 28 U.S.C.
§ 1331 (2000). Cf. Lee, supra note 1, at 842 n.45 (noting that addition of general federal
question jurisdiction in 1875 made treaty portion of ATS extraneous).
54. See Doe I v. Unocal Corp., 395 F.3d 932, 948 (9th Cir. 2002) (“It is ‘well settled
that the law of nations is part of federal common law.’” (quoting In re Estate of Ferdinand
E. Marcos Human Rights Litig., 978 F.2d 493, 502 (9th Cir. 1992))).
542007] ATS RULES OF DECISION 467
rules of decision
as well as for yielding sovereignty to institutions
outside of the constitutional system of democracy.
55
As will be explained
further below,
57
56
it has the further disadvantage of failing to recognize
that different sovereign entities can enact different methods for enforcing
rules of customary international law.
Further, if customary international
law is part of the federal common law, it is subject to revision by
Congress.
59
58
Although far from conclusive, the historical evidence suggests that
the ATS was originally enacted as a measure to provide a forum for aggrieved
aliens who might face significant discrimination when seeking
to
enforce state-created rights in state courts.
As such, it is intellectually
connected with the diversity jurisdiction—itself
at least partially
concerned
with ensuring fair enforcement of state law when one
party
is not a resident of the forum.
60
In a post-Erie jurisprudential
55. See id. at 965–66 (Reinhardt, J., concurring) (favoring federal common law to
resolve case at bar rather than “evolving standards of international law, such as a nascent
criminal law doctrine recently adopted by an ad hoc international criminal tribunal”).
56. See John O. McGinnis, Foreign to Our Constitution, 100 Nw. U. L. Rev. 303, 309
(2006) (noting international law’s “democratic deficit” as reason it should not be used to
interpret Federal Constitution); cf. Richard A. Posner, The Supreme Court 2004 Term,
Foreword: A Political Court, 119 Harv. L. Rev. 31, 88 (2005) (“Judges in foreign countries
do not have the slightest democratic legitimacy in a U.S. context.”).
57. See infra Part III.B.1.
58. For example, a dispute exists over whether corporations should be punished
criminally for aiding and abetting international law violations or if civil remedies are
adequate. See Sarei v. Rio Tinto, PLC, 456 F.3d 1069, 1117–18 (9th Cir. 2006) (Bybee, J.,
dissenting) (“Human rights violations . . . might more appropriately be addressed with
criminal sanctions, rather than civil remedies . . . .”). Compare Mushikiwabo v.
Barayagwiza, No. 94-CIV-3627, 1996 WL 164496, at *1 (S.D.N.Y. Apr. 9, 1996) (“[T]he
defendant has engaged in conduct so inhuman that it is difficult to conceive of any civil
remedy which can begin to compensate the plaintiffs for their loss or adequately express
society’s outrage at the defendant’s actions.”), and Diane Marie Amann, Capital
Punishment: Corporate Criminal Liability for Gross Violations of Human Rights, 24
Hastings Int’l & Comp. L. Rev. 327, 336–37 (2001) (arguing that “it is appropriate to
impose criminal liability on corporations” that have committed “the grossest, most
systematic violations of human rights”), with Beth Stephens, Translating Fil
´
artiga: A
Comparative and International Law Analysis of Domestic Remedies for International
Human Rights Violations, 27 Yale J. Int’l L. 1, 12–13 (2002) (acknowledging “concern”
that treating egregious human rights violations committed by corporations as torts may
“trivialize[ ] . . . an affront against all of humanity” but suggesting that civil litigation
against such corporations is still appropriate because of, inter alia, “the benefits that civil
litigation offers to the victim, to the human rights movement, and to society” even if lawsuit
“does not result in actual payment of the damages awarded”).
59. See infra note 178.
60. See, e.g., Guaranty Trust Co. v. York, 326 U.S. 99, 111 (1945) (“Diversity
jurisdiction is founded on assurance to non-resident litigants of courts free from
susceptibility to potential local bias.”). But see John P. Frank, Historical Bases of the
Federal Judicial System, 13 Law & Contemp. Probs. 3, 22–28 (1948) (concluding that
diversity jurisdiction was motivated by three primary concerns, including avoidance of
“regional prejudice against commercial litigants,” class biases, and judicial efficiency);
Henry J. Friendly, The Historic Basis of Diversity Jurisdiction, 41 Harv. L. Rev. 483, 495–97
468 COLUMBIA LAW REVIEW [Vol. 107:457
scheme,
such a history suggests that federal courts would have been
expected to look regularly to state law to resolve legal issues which are
likely to have arisen as a result of state-defined causes of action in the first
place.
61
B. Case Law Interpreting the Alien Tort Statute
Modern ATS jurisprudence has not followed this state-centered line
of reasoning suggested by the historical scholarship. Whereas the original
statute was concerned with underenforcement of state causes of action
brought by aliens, early developments in the Filartiga
line of cases—
beginning
with the introduction in Tel-Oren
v. Libyan Arab Republic
of
the ideas that the ATS only provides jurisdiction, not a cause of action,
and that the ATS contains a state action requirement—appear to be more
concerned with overenforcement of actions by aliens. This section begins
with a discussion of the most recent (and only) Supreme Court opinion
on the ATS and then proceeds to a discussion of the cases that led up to
it.
1. Sosa v. Alvarez-Machain. — Current understanding of the ATS is
governed by the Supreme Court’s explication of the statute in Sosa v.
Alvarez-Machain.
As understood by the Supreme Court in Sosa, the ATS
was not intended to be a mere jurisdictional statute, left in the tomes of
the Statutes at Large until some later Congress found it necessary to create
enforceable rights under the statute.
63
Instead, the Court recognized
that the ATS, in addition to conferring jurisdiction on federal courts for
cases within its ambit, also recognized limited common law causes of action
for aliens seeking to sue in American federal courts.
64
Most controversially,
however, the Court set out a new analysis for determining ATS
causes
of action.
Sosa acknowledged that the violations of the law of na-
65
(1928) (concluding that “the real fear [motivating diversity jurisdiction] was not of state
courts so much as of state legislatures” that might pass laws favoring local debtors).
62
61. On the post-Erie implications for the ATS, see Casto, supra note 4, at 477 (“The
development of a system of international tort law would lead the federal courts down a
path similar to the one rejected in Erie.”). But see White, supra note 48, at 63–75
(discussing how Erie interacts with post-Sosa views of customary international law and
concluding that, despite Erie, state interpretation of international law should be permitted
to develop alongside federal interpretation of international law).
62. 726 F.2d 774 (D.C. Cir. 1984).
63. 542 U.S. 692, 697–98 (2004) (deciding scope of ATS did not reach plaintiff who
had been arbitrarily detained for only one day).
64. See id. at 719 (“[T]here is every reason to suppose that the First Congress did not
pass the ATS as a jurisdictional convenience to be placed on the shelf for use by a future
Congress or state legislature that might, some day, authorize the creation of causes of
action . . . .”).
65. Id. at 724 (“The jurisdictional grant is best read as having been enacted on the
understanding that the common law would provide a cause of action for the modest
number of international law violations with a potential for personal liability at the time.”).
As mentioned above, see supra Part I.A, state law indeed seemed to provide the requisite
cause of action.
default body of law in the American system,
in some situations state law
is a more appropriate source for federal courts to use to “fill the interstices”
22
21
of the ATS.
On this view, both the majority and the concurrence in Unocal incor-
rectly decided the choice of law issue for third party liability in ATS cases.
The majority erred in applying international law qua international law; its
crucial mistake came in footnote 23, where it argued that the choice between
international law and domestic law was unimportant since either
approach
resulted in substantially similar rules of decision.
This argument
fails to consider that, in an international system, international legal
principles
can be applied in a variety of ways.
As long as a forum’s rule
does not violate binding norms of international law, notions of comity
and the structures of the international and federal systems should give
deference to the forum’s particular embodiment of the international
principle. For its part, the concurrence correctly relied upon Kimbell
Foods and looked to federal common law in making its decision.
But it
ignored factors favoring application of state law, including federal policies
such as those embodied in the Rules of Decision Act (RDA).
The Note proceeds as follows. Part I reviews the ATS statutory history
and case law, with an eye toward highlighting the questions of law
that
such cases pose and explaining why those issues tend to arise.
Because
the greater likelihood of recovering money in a suit against a corporation
sued on complicity theories is likely to cause such cases to proliferate,
26
23
Part II evaluates domestic and international corporate complicity
21. The most well-known example of this is Erie Railroad Co. v. Tompkins, 304 U.S.
64, 77–78 (1938) (requiring application of state common law in diversity cases controlled
by section 34 of Judiciary Act of 1789, which was later enacted independently as Rules of
Decision Act (RDA)), though it only applies to cases arising under the diversity
jurisdiction. But a state law presumption is also used in federal common law situations to
furnish the appropriate federal rule of decision. See, e.g., United States v. Kimbell Foods,
Inc., 440 U.S. 715, 727–29 (1979) (adopting state law as appropriate rule of federal
common law “when there is little need for a nationally uniform body of law”).
22. Kimbell Foods, 440 U.S. at 727.
23. Unocal, 395 F.3d at 948 n.23.
24. See id. at 965–66 (Reinhardt, J., concurring).
25. 28 U.S.C. § 1652 (2000). The RDA states that “[t]he laws of the several states,
except where the Constitution or treaties of the United States or Acts of Congress
otherwise require or provide, shall be regarded as rules of decision in civil actions in the
courts of the United States, in cases where they apply.” Id.
24
25
26. See supra note 16 (describing greater potential for recovery on behalf of ATS
plaintiffs when corporations are sued). Even when corporations are sued, the likelihood of
any money changing hands remains small. The only confirmed case in which ATS
plaintiffs actually recovered any money was Unocal, which settled for about $30 million.
See Paul Magnusson, Legal Settlements: A Milestone for Human Rights, Bus. Wk., Jan. 24,
2005, at 63, 63. The difficulty in collecting on judgments in human rights cases is not
unique to the ATS. See Richard B. Lillich, Damages for Gross Violations of International
Human Rights Awarded by US Courts, 15 Hum. Rts. Q. 207, 207–08 (1993) (noting “the
unlikelihood of immediate enforcement of judgments” obtained in various human rights
cases). But see id. at 208 & n.5 (suggesting that judgment of about $2.5 million against
462 COLUMBIA LAW REVIEW [Vol. 107:457
doctrine as an example of an important issue that ATS courts often need
to decide. Part III discusses choice of law principles and their relationship
to the complicated questions presented in ATS
cases and concludes
by
suggesting an answer to the question underlying this entire inquiry—
what
source of law should be used in filling out the federal common law
of
the ATS—by
arguing that state law, while not the most appropriate
source
for every ATS
issue, will often be a better choice than the
alternatives.
I. J
URISPRUDENTIAL PROGRESSION OF THE ALIEN TORT STATUTE
Although the ATS is being used in ways that likely would not have
been envisioned by its drafters,
common characteristics between its historical
origins and its current uses do exist.
The most important characteristic
shared between the modern approach and the historical approach
is the general purpose of the statute.
The statute as written in
1789 appears to have been intended to provide a forum and a possible
remedy for international legal wrongs that otherwise would be unredressable,
a goal that modern ATS
advocates have expanded considerably.
28
27
Because of that common aim, a federal court will often face issues
Chile is likely to be enforced in non-ATS suit, Letelier v. Republic of Chile, 488 F. Supp.
665 (D.D.C. 1980), for assassination in District of Columbia of Chilean ambassador and
foreign minister).
27. See, e.g., Sosa v. Alvarez-Machain, 542 U.S. 692, 749–50 (2004) (Scalia, J.,
concurring in part and concurring in the judgment) (“[T]he Framers who included
reference to ‘the Law of Nations’ in Article I, § 8, cl. 10, of the Constitution would be
entirely content with the post-Erie system I have described, and quite terrified by the
‘discretion’ endorsed by the Court.”); Lee, supra note 1, at 838 (suggesting that original
intent of ATS was probably to provide forum for aliens to adjudicate mundane, everyday
torts). Of course, since Filartiga, the statute has become the basis for modern human
rights litigation in areas as diverse as the war on terror—by both victims of the terrorist
attacks and victims of the aggressive American campaigns against al Qaeda—and
international labor rights. See, e.g., Ibrahim v. Titan Corp., 391 F. Supp. 2d 10, 12 (D.D.C.
2005) (alleging corporate responsibility for abuse of prisoners by U.S. forces at Abu
Ghraib); Burnett v. Al Bakara Inv. & Dev. Corp., 274 F. Supp. 2d 86, 91 (D.D.C. 2003)
(seeking damages from entities alleged to have provided funding to al Qaeda); Sinaltrainal
v. Coca-Cola Co., 256 F. Supp. 2d 1345, 1348 (S.D. Fla. 2003) (alleging corporate
complicity in murder of union leader); see also Pagnattaro, supra note 16, at 205
(describing potential uses of ATS in international labor rights disputes).
28. See, e.g., Casto, supra note 4, at 490–91 (suggesting ATS was passed to placate
international calls for newly founded United States to obey law of nations); Lee, supra note
1, at 888 (noting need for ATS as remedy when individual American states would not
provide remedies for violation of safe conducts); Lorelle Londis, Comment, The
Corporate Face of the Alien Tort Claims Act: How an Old Statute Mandates a New
Understanding of Global Interdependence, 57 Me. L. Rev. 141, 147–48 (2005)
(“[Transnational corporations] often possess far greater power than nation-states, yet
they . . . [are not] answerable to any one sovereign authority. They may be answerable in
part to many different authorities, but there is no final law the international community
can point to that regulates th[ese] actor[s].”); see also Sarah Joseph, An Overview of the
Human Rights Accountability of Multinational Enterprises, in Liability of Multinational
Corporations Under International Law 75, 78–79 (Menno T. Kamminga & Saman Zia-
2007] ATS RULES OF DECISION 463
that have no clear rule of decision: In almost all circumstances, the case
would not be in federal court to begin with if there were some other clear
resolution to it, and it seems unavoidable that any application of the statute
would raise novel legal questions, incidental to the underlying substantive
law violations.
This Part explores the history of the ATS as well as some of the issues
that arise in ATS cases. After discussing the statutory history and case law
development of ATS jurisprudence in Parts I.A and I.B respectively, Part
I.C concludes by reviewing ATS decisions and some of the legal issues
presented in those proceedings.
A. History of the Alien Tort Statute
Academic commentary on the ATS has become legion,
making
only a brief description of ATS history necessary here. Professor Casto
provides a particularly useful description of the history leading up to the
inclusion of the ATS in the Judiciary Act of 1789.
Unlike many authors
31
and even some courts,
32
30
29
he does not believe that the statutory
Zarifi eds., 2000) (noting difficulties nation-states may face when regulating transnational
corporations).
29. See, e.g., Casto, supra note 4, at 510 (concluding that legislative history of ATS
suggests it should be given liberal interpretation); William S. Dodge, The Historical
Origins of the Alien Tort Statute: A Response to the “Originalists,” 19 Hastings Int’l &
Comp. L. Rev. 221, 224 (1996) [hereinafter Dodge, Historical Origins] (arguing that
history of ATS supports Filartiga’s approach to ATS interpretation); Diskin, supra note 2, at
815–21 (discussing case law history); Fuks, supra note 16, at 112 (suggesting bonded labor
claims as possible area post-Sosa ATS cases can occupy).
30. See Casto, supra note 4, at 488–510 (describing historical purposes of ATS).
31. See, e.g., Farooq Hassan, Panacea or Mirage? Domestic Enforcement of
International Human Rights Law: Recent Cases, 4 Hous. J. Int’l L. 13, 18 (1981) (noting of
ATS that “nothing meaningful is known of its origin” and “nothing is known about why it
was enacted”); Pagnattaro, supra note 16, at 211–12 (noting obscure origins of ATS).
Fortunately, historical scholarship on the topic has improved since Hassan’s bleak
statement in 1981.
32. See, e.g., IIT v. Vencap, Ltd., 519 F.2d 1001, 1015 (2d Cir. 1975) (“This old but
little used section is a kind of legal Lohengrin; although it has been with us since the first
Judiciary Act, no one seems to know whence it came.” (citations omitted)). It has become
almost a mantra for commentators and courts discussing the ATS to note its obscure
origins and infrequent use for its first two hundred years of existence. See, e.g., Filartiga v.
Pena-Irala, 630 F.2d 876, 887 & n.21 (2d Cir. 1980) (observing that ATS successfully served
as jurisdictional statute in only two cases prior to 1980); Donald J. Kochan, No Longer
Little Known but Now a Door Ajar: An Overview of the Evolving and Dangerous Role of
the Alien Tort Statute in Human Rights and International Law Jurisprudence, 8 Chap. L.
Rev. 103, 103–04 (2005) (“The federal Alien Tort Statute . . . has seen an interesting
evolution in the past twenty-five years after remaining almost entirely dormant for nearly
two hundred years since its passage . . . .”); Harold Hongju Koh, How Is International
Human Rights Law Enforced?, 74 Ind. L.J. 1397, 1414 (1999) (calling ATS “a little-known
eighteenth century statute”); see also Kenneth C. Randall, Federal Jurisdiction over
International Law Claims: Inquiries into the Alien Tort Statute, 18 N.Y.U. J. Int’l L. & Pol.
1, 4–5 & nn.15–16 (1985) (noting rarity with which ATS was invoked prior to Filartiga and
providing list of published cases that invoked it, only two of which were successful).
464 COLUMBIA LAW REVIEW [Vol. 107:457
history and original purpose of the ATS are difficult to discern.
The
following description is summarized primarily from his article.
Violations of the law of nations were actionable at common law, with
Blackstone stating that “[t]he principal offences against the law of nations
. . . are of three kinds:
1. Violation of safe conducts; 2. Infringements
of the rights of embassadors; and, 3.
Piracy.”
In an effort to
ensure the world that the fledgling United States would comply with the
law of nations, the Continental Congress passed a resolution requesting
that the states provide judicial remedies for violations of the law of nations,
specifically including those listed by Blackstone.
35
In making this
request of the states, the Continental Congress recognized the grave international
peace implications that could arise from a failure to provide
remedies
for law of nations violations
37
36
as well as its own inability to create
one.
38
The Congress’s worries were not without warrant. In 1784, a wellpublicized
international incident created a diplomatic furor.
The
Chevalier de Longchamps, a French citizen, committed an assault and
battery on Mr. Marbois, a member of the French diplomatic mission, in
the streets of Philadelphia.
Ultimately, de Longchamps was tried in a
Pennsylvania state court that found him guilty of state common law
crimes based on common law violations of the law of nations,
39
but this
conclusion only came after an international uproar revealed the inability
of the Continental Congress to enforce the law of nations.
The legislation
that eventually became the Alien Tort Statute,
part of the larger
Judiciary Act of 1789 that gave power to the newly created federal judici-
42
41
34
40
33
33. See Casto, supra note 4, at 488–89.
34. See id. at 489–95.
35. 4 William Blackstone, Commentaries *68; see also Casto, supra note 4, at 489
(discussing Blackstone’s three offenses).
36. See Casto, supra note 4, at 490 (citing 21 Journals of the Continental Congress
1774–1789, at 1136–37 (Gaillard Hunt ed., 1912)).
37. See id. at 481 (“When the [ATS] was passed, . . . a judicial remedy was necessary
[for international law violations] in order to assuage the anger of foreign sovereigns.”);
accord 4 Blackstone, supra note 35, at *68 (“[W]here the individuals of any state violate
this general law, it is then the interest as well as duty of the government under which they
live, to animadvert upon them with a becoming severity, that the peace of the world may be
maintained.”).
38. See Casto, supra note 4, at 490 (“[T]he Continental Congress had virtually no
legislative powers.”).
39. See id. at 491.
40. Id. at 492.
41. Id. at 492–93. Casto describes another international incident that occurred
during the ratification process that would have strengthened this view of the weak national
government: A constable arrested one of the servants of the Dutch ambassador in the
ambassador’s New York City residence. Again, state law provided the remedy as the
national government was still powerless to do anything about it. Id. at 494.
42. Judiciary Act of 1789, ch. 20, § 9, 1 Stat. 73, 77 (codified as amended at 28 U.S.C.
§ 1350 (2000)).2007] ATS RULES OF DECISION 465
ary, almost certainly contemplated this and similar incidents when it was
passed.
43
Other accounts of the passage of the ATS follow similar reasoning.
For example, Professor Lee’s “safe conduct theory” of the ATS suggests
that the structure of the Judiciary Act itself shows that the ATS was intended
to provide a remedy for the violation of safe conducts.
Two of
the three offenses listed in the Blackstone trilogy—piracy and offenses
against ambassadors—are given explicit remedies in other parts of the
Judiciary Act.
The Alien Tort Statute, by implication, would have been
intended to provide a remedy in federal courts for offenses against aliens
who did not have the same status as ambassadors—in other words, the
ATS covered violations of safe conduct, the single category of
Blackstone’s trilogy not otherwise addressed in the Judiciary Act.
45
Like
Professor Casto, Professor Lee views the Marbois incident and concern
that states would not provide remedies for similar incidents as part of the
motivation behind the passage of the statute.
47
This view of the motivation for the inclusion of the ATS in the Judiciary
Act has implications for the choice of law decision in ATS
cases.
At
the time of the Marbois incident, there seemed to be no question that the
common law of the states included causes of action for torts that violated
the law of nations.
The problem was not that state law was inadequate
in the sense that no cause of action was available in the states, but instead
48
44
46
43. See Casto, supra note 4, at 495 (“Members of the committee surely remembered
the Continental Congress’s ill-fated law of nations resolution and the intervening affronts
to foreign ambassadors.”); see also Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 782
(D.C. Cir. 1984) (Edwards, J., concurring) (“There is evidence . . . that the intent of this
section was to assure aliens access to federal courts to vindicate any incident which, if
mishandled by a state court, might blossom into an international crisis.”); Lee, supra note
1, at 880–81 (noting political expediency of providing forum to aggrieved aliens as method
to reduce risk of war).
44. See Lee, supra note 1, at 836–38 (arguing that ATS was intended to cover
guarantees of safe conduct between sovereign nations).
45. See id.
46. See id.; see also Diskin, supra note 2, at 812–13 (noting role of safe conduct in
minds of Alien Tort Statute’s authors).
47. See Lee, supra note 1, at 860–66. On this view, the Marbois incident technically
would not fall within the ambit of the ATS since Marbois was a member of a diplomatic
mission. But concern for the greater problem—unwillingness of states to permit aliens to
sue in their courts—would apply even to non-diplomats.
48. See Casto, supra note 4, at 489–90 (stating that common law included right of
action for violation of Blackstone’s law of nations categories). Of course, at the time the
ATS was passed, even Swift v. Tyson, 41 U.S. (16 Pet.) 1, 18–19 (1842) (holding that federal
common law provided rule of decision for federal courts sitting in diversity when no statute
controlled), was decades away from decision. Professor White thus points out that law of
nations violations were considered part of the general common law cognizable in both state
and federal courts. See G. Edward White, A Customary International Law of Torts 33
(Univ. of Va. Law Sch. Pub. Law & Legal Theory Working Paper Series, Paper No. 34,
2005), available at http://law.bepress.com/uvalwps/uva_publiclaw/art34 (on file with the
Columbia Law Review) (“There was . . . what might be called a pre-Erie law of nations, part of
the general law that both federal and state courts declared.”).
466 COLUMBIA LAW REVIEW [Vol. 107:457
that the federal government could not guarantee that a state would provide
a forum to vindicate the rights of the offended alien.
The ATS apparently
was passed to ensure a forum for aliens to enforce causes of action
that were otherwise assumed to be available.
49
Other interpretations of the original meaning of the ATS are less
convincing. For example, Professor Sweeney argues that the use of the
word “only” before the word “tort” had special meaning confining the
application of the statute to prize cases in admiralty courts.
The chief
obstacle to this argument is that the Judiciary Act already endowed federal
courts with jurisdiction over cases in admiralty, so it is difficult to see
what
additional work the statute would have been meant to do under
Professor
Sweeney’s theory.
51
A more credible argument for the motivation behind the passage of
the ATS is advanced by commentators who believe that customary international
law
52
was incorporated into federal common law.
Indeed, this
is the approach used to justify invocation of international law in Unocal.
53
However, this approach has been criticized for using underdeveloped
50
49. This discussion does not address other significant issues that the ATS invokes—for
example, how to justify constitutionally the jurisdiction of the federal courts over potential
cases between two aliens. See, e.g., Casto, supra note 4, at 471–72 & n.32 (noting that ATS
cases between two aliens do not fall within alienage jurisdiction of federal courts).
50. See Joseph Modeste Sweeney, A Tort Only in Violation of the Law of Nations, 18
Hastings Int’l & Comp. L. Rev. 445, 446–47 (1995).
51. See White, supra note 48, at 25 n.81 (arguing that Professor Sweeney does not
explain “why the ATS would have been necessary when the federal courts already had
jurisdiction over prize cases under the Constitution, and why no early cases interpreting
the ATS assumed that it referred only to a limited category of prize cases”).
52. Customary international law is defined by the Restatement (Third) as “law [that]
results from a general and consistent practice of states followed by them from a sense of
legal obligation.” Restatement (Third) of the Foreign Relations Law of the United States
§ 102(2) (1987).
53. See, e.g., Dodge, Historical Origins, supra note 29, at 239–40 (noting that
international law is today viewed as part of federal common law but that in 1789 it would
have been “general” common law). The two precedents most supportive of this view are
The Paquete Habana, 175 U.S. 677, 700 (1900) (“International law is part of our law, and
must be ascertained and administered by the courts of justice of appropriate jurisdiction as
often as questions of right depending upon it are duly presented for their
determination.”), and United States v. Smith, 18 U.S. (5 Wheat.) 153, 160–61 (1820)
(“What the law of nations on this subject is, may be ascertained by consulting the works of
jurists, writing professedly on public law; or by the general usage and practice of nations;
or by judicial decisions recognising and enforcing that law.”). This approach has the
benefit of avoiding constitutional jurisdiction concerns, but it also means that the
limitation of the ATS to suits by aliens was surplus: United States citizens would also have
the right to enforce violations of the federal common law in U.S. courts under 28 U.S.C.
§ 1331 (2000). Cf. Lee, supra note 1, at 842 n.45 (noting that addition of general federal
question jurisdiction in 1875 made treaty portion of ATS extraneous).
54. See Doe I v. Unocal Corp., 395 F.3d 932, 948 (9th Cir. 2002) (“It is ‘well settled
that the law of nations is part of federal common law.’” (quoting In re Estate of Ferdinand
E. Marcos Human Rights Litig., 978 F.2d 493, 502 (9th Cir. 1992))).
542007] ATS RULES OF DECISION 467
rules of decision
as well as for yielding sovereignty to institutions
outside of the constitutional system of democracy.
55
As will be explained
further below,
57
56
it has the further disadvantage of failing to recognize
that different sovereign entities can enact different methods for enforcing
rules of customary international law.
Further, if customary international
law is part of the federal common law, it is subject to revision by
Congress.
59
58
Although far from conclusive, the historical evidence suggests that
the ATS was originally enacted as a measure to provide a forum for aggrieved
aliens who might face significant discrimination when seeking
to
enforce state-created rights in state courts.
As such, it is intellectually
connected with the diversity jurisdiction—itself
at least partially
concerned
with ensuring fair enforcement of state law when one
party
is not a resident of the forum.
60
In a post-Erie jurisprudential
55. See id. at 965–66 (Reinhardt, J., concurring) (favoring federal common law to
resolve case at bar rather than “evolving standards of international law, such as a nascent
criminal law doctrine recently adopted by an ad hoc international criminal tribunal”).
56. See John O. McGinnis, Foreign to Our Constitution, 100 Nw. U. L. Rev. 303, 309
(2006) (noting international law’s “democratic deficit” as reason it should not be used to
interpret Federal Constitution); cf. Richard A. Posner, The Supreme Court 2004 Term,
Foreword: A Political Court, 119 Harv. L. Rev. 31, 88 (2005) (“Judges in foreign countries
do not have the slightest democratic legitimacy in a U.S. context.”).
57. See infra Part III.B.1.
58. For example, a dispute exists over whether corporations should be punished
criminally for aiding and abetting international law violations or if civil remedies are
adequate. See Sarei v. Rio Tinto, PLC, 456 F.3d 1069, 1117–18 (9th Cir. 2006) (Bybee, J.,
dissenting) (“Human rights violations . . . might more appropriately be addressed with
criminal sanctions, rather than civil remedies . . . .”). Compare Mushikiwabo v.
Barayagwiza, No. 94-CIV-3627, 1996 WL 164496, at *1 (S.D.N.Y. Apr. 9, 1996) (“[T]he
defendant has engaged in conduct so inhuman that it is difficult to conceive of any civil
remedy which can begin to compensate the plaintiffs for their loss or adequately express
society’s outrage at the defendant’s actions.”), and Diane Marie Amann, Capital
Punishment: Corporate Criminal Liability for Gross Violations of Human Rights, 24
Hastings Int’l & Comp. L. Rev. 327, 336–37 (2001) (arguing that “it is appropriate to
impose criminal liability on corporations” that have committed “the grossest, most
systematic violations of human rights”), with Beth Stephens, Translating Fil
´
artiga: A
Comparative and International Law Analysis of Domestic Remedies for International
Human Rights Violations, 27 Yale J. Int’l L. 1, 12–13 (2002) (acknowledging “concern”
that treating egregious human rights violations committed by corporations as torts may
“trivialize[ ] . . . an affront against all of humanity” but suggesting that civil litigation
against such corporations is still appropriate because of, inter alia, “the benefits that civil
litigation offers to the victim, to the human rights movement, and to society” even if lawsuit
“does not result in actual payment of the damages awarded”).
59. See infra note 178.
60. See, e.g., Guaranty Trust Co. v. York, 326 U.S. 99, 111 (1945) (“Diversity
jurisdiction is founded on assurance to non-resident litigants of courts free from
susceptibility to potential local bias.”). But see John P. Frank, Historical Bases of the
Federal Judicial System, 13 Law & Contemp. Probs. 3, 22–28 (1948) (concluding that
diversity jurisdiction was motivated by three primary concerns, including avoidance of
“regional prejudice against commercial litigants,” class biases, and judicial efficiency);
Henry J. Friendly, The Historic Basis of Diversity Jurisdiction, 41 Harv. L. Rev. 483, 495–97
468 COLUMBIA LAW REVIEW [Vol. 107:457
scheme,
such a history suggests that federal courts would have been
expected to look regularly to state law to resolve legal issues which are
likely to have arisen as a result of state-defined causes of action in the first
place.
61
B. Case Law Interpreting the Alien Tort Statute
Modern ATS jurisprudence has not followed this state-centered line
of reasoning suggested by the historical scholarship. Whereas the original
statute was concerned with underenforcement of state causes of action
brought by aliens, early developments in the Filartiga
line of cases—
beginning
with the introduction in Tel-Oren
v. Libyan Arab Republic
of
the ideas that the ATS only provides jurisdiction, not a cause of action,
and that the ATS contains a state action requirement—appear to be more
concerned with overenforcement of actions by aliens. This section begins
with a discussion of the most recent (and only) Supreme Court opinion
on the ATS and then proceeds to a discussion of the cases that led up to
it.
1. Sosa v. Alvarez-Machain. — Current understanding of the ATS is
governed by the Supreme Court’s explication of the statute in Sosa v.
Alvarez-Machain.
As understood by the Supreme Court in Sosa, the ATS
was not intended to be a mere jurisdictional statute, left in the tomes of
the Statutes at Large until some later Congress found it necessary to create
enforceable rights under the statute.
63
Instead, the Court recognized
that the ATS, in addition to conferring jurisdiction on federal courts for
cases within its ambit, also recognized limited common law causes of action
for aliens seeking to sue in American federal courts.
64
Most controversially,
however, the Court set out a new analysis for determining ATS
causes
of action.
Sosa acknowledged that the violations of the law of na-
65
(1928) (concluding that “the real fear [motivating diversity jurisdiction] was not of state
courts so much as of state legislatures” that might pass laws favoring local debtors).
62
61. On the post-Erie implications for the ATS, see Casto, supra note 4, at 477 (“The
development of a system of international tort law would lead the federal courts down a
path similar to the one rejected in Erie.”). But see White, supra note 48, at 63–75
(discussing how Erie interacts with post-Sosa views of customary international law and
concluding that, despite Erie, state interpretation of international law should be permitted
to develop alongside federal interpretation of international law).
62. 726 F.2d 774 (D.C. Cir. 1984).
63. 542 U.S. 692, 697–98 (2004) (deciding scope of ATS did not reach plaintiff who
had been arbitrarily detained for only one day).
64. See id. at 719 (“[T]here is every reason to suppose that the First Congress did not
pass the ATS as a jurisdictional convenience to be placed on the shelf for use by a future
Congress or state legislature that might, some day, authorize the creation of causes of
action . . . .”).
65. Id. at 724 (“The jurisdictional grant is best read as having been enacted on the
understanding that the common law would provide a cause of action for the modest
number of international law violations with a potential for personal liability at the time.”).
As mentioned above, see supra Part I.A, state law indeed seemed to provide the requisite
cause of action.
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