I- The rebirth of the alien tort statute
1. Presentation of the statute
1.1 History of the Alien tort Statute
The Alien Tort Statute was enacted after the signing of the U.S Constitution on September 17, 1787. In 1789, the 1st Congress voted the ATS as part of the Judiciary Act. It was intended to give U.S Courts authority for trying violations of International law by closing a loophole, which precluded the Federal judiciary from redressing wrongful conduct in violation of the law of nations. Indeed, two cases had showcased the inability of Federal government to redress blatant violations of the law of nations.
A French officer had wronged a French Consul in Pennsylvania. That latter State refused the requested extradition and prosecuted the wrongdoer only years later. The then U.S Secretary of State apologized to the French authorities for the impossibility to redress the wrong absent any Congressional authority.
Shortly thereafter, another instance of the federal government’s impotence convinced Congress to act. The raiding of a Dutch diplomat in NYC by a police officer resulted in a mere apology of the Secretary of State to his Dutch counterpart. Indeed, absent any Congressional Statute empowering the judicial branch of the government for adjudicating breach of the privileges of ambassadors, the judiciary proved impotent once again. The federal government viewed its lack of jurisdiction as an embarrassment on the world stage. In reaction, it passed the Alien tort Statute, which reads: “The district Courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States”.
1.2 The rebirth of the Alien tort Statute
For almost 150 years, the statute remained unnoticed. It was not until 1980 that a lawsuit was filed under its provisions. Although the ATS was voted in reaction to the U.S government’s inability to sanction violations of the law of nations, its wording did not specify any limit to conduct occurring within the US territory. Rather, when voted in 1789, the law of nation was understood as encompassing three major instances, namely, piracy, violation of safe conducts, offenses against ambassadors or consuls. Even with such a 18th century’s construction of the law of nations, one could make the argument that the ATS scope, at that time, was intended to cover overseas’ behavior, for piracy exemplifies the kind of overseas’ offenses.
Inevitably, the rebirth of a 1789 statute would raise issues concerning its subject matter, venue, and procedural jurisdictions.
- What is the reach of the ATS? Can violations of the law committed in another sovereign state be tried in U.S Courts?
- What about its substantive scope? How to define what constitutes a violation of the law of nations?
2. Rediscovering the Alien tort Statute: filartiga and its aftermath
2.1 Filartiga’s case
Dolly Filartiga, a Paraguayan citizen, witnessed the torture and murder of her brother by State officials. The Paraguayan courts did not grant her any relief as the perpetrator had ties to the then ruling dictator. Several years later, as both the Plaintiff and the Defendant had moved to the U.S, Mrs Filartiga, still an alien, filed a lawsuit in a federal district court to seek relief. The federal district court dismissed the claim on grounds that international law was limited to regulating relations between States. On appeal, however, the appellate court found that murder by torture rose to the level of a violation of the law of nations. To reach such an outcome, the court had to address the issue of how to interpret the content of the violation of the law of nations? To do so it referred to numerous international agreements, the general usage and practice of nations, or by judicial decision, the general assent of civilized nations deduced from customs and usages, in turn determined by the works of jurists. After citing to these sources, the court found that all show that the law of nations prohibits State officials from torturing its citizens. It explained that the ATS ought not be construed “as granting new rights to aliens but simply as opening the federal courts for adjudicating of the rights already recognized by international law”. It further held that the right to be free from physical torture was amongst fundamental human rights and was therefore protected under customary international law.
2.2 Filartiga’s aftermath
Filartiga asserted both subject matter and procedural jurisdictions for overseas’ conduct amounting to a violation of the law of nation when the defendant had later settled in the U.S.
Filartiga’s aftermath inevitably raised several issues, namely: how to ensure a reasonable use of the ATS? Is there a risk to see the USA becoming a forum for adjudicating atrocious conduct in violation of the law of nations without any direct connection to an act committed within its territory?
3. Expanding the ATS’ construction
3.1 The expansion of the subject-matter jurisdiction (ratione materiae)
Filartiga’s main takeaway was that torture could be regarded as a violation of the law of nations under the ATS' provisions, and therefore be redressed in American courts. Filartigaasserted jurisdiction over foreign citizens for overseas’ acts as long as the defendant had taken refuge in the US. The question remained: put aside this specific instance of torture, how to further define the content of a violation of the law of nation?
Later on, in Marcos, the court of appeal for the 9th Circuit, also wrestling with allegations of torture in the Philippines concurred. It ruled, “the ATS creates a cause of action for violations of specific, universal and obligatory international human rights standards which confer fundamental rights upon all people vis-à-vis their own governments”. Such a framework began the process of expanding the ATS’ substantive scope.
Foreseeably, human rights lawyers used Filartiga and Marcos’ takeaways and began filing lawsuits under the ATS to other misdeeds. Therefore the issue morphed into the following: what’s the stretch of the violation of the law of nations? How to distinguish between violations of specific, universal and obligatory international human rights standards from other egregious crimes, which do not amount to that level? For instance, is it workable to permit a torture claim to fall under the provisions of the ATS while excluding child labor or labor under inhumane conditions? In the same respect, do arbitrary arrests, detentions amount to the level of a violation of the law of nations and therefore fall within the Statute’s scope?
Difficulties in drawing the line between conduct falling within the scope of the statute bred uncertainty. How to distinguish atrocious conduct amounting to the level of a violation of the law of nations from another despicable one that does not meet that standard? In a word, the 3-prong test of specific, universal, and obligatory Human rights standards needed to gain in precision if it whished to become better predictable and workable.
3.2. The expansion of the ratione personae jurisdiction
Is State action required to entail jurisdiction under the ATS? In other words, can individuals or corporations be sued under the ATS for activities conducted outside the territory of the United States? Courts’ awards have unfortunately proven inconsistent although foreseeability and security are amongst the necessary features of a quality legal system.
Several courts, though, ruled that corporations could be held liable under the ATS where substantial assistance was provided. In Doe v. Unlocal, a federal district court ruled that while State action was required, a corporation could be held liable on aider and abettor principles. The court of appeals concurred, explaining that a corporation was liable as an accomplice where it has knowingly provided “practical assistance or encouragement that has a substantial effect on the perpetration of the crime”. It therefore raised the issue of whether a more precise framework could be crafted? Indeed, such an interpretation left a great amount of leeway to a case-by-case analysis at the expense of predictability.
It was however good law that corporations might be held liable under ATS provisions. The ATS’ substantive scope had been expanded. Accordingly, the opportunity of such a solution called for an assessment.
On the one hand, threats of ATS lawsuits in U.S courts are strong incentives for U.S’ corporations to refrain from conducting operations in violation of human rights. In addition, multinationals, fearful of the adverse consequences of ATS’ lawsuits but willing to keep conducting business would likely pressure rogue States to improve human rights' protection. That fear becomes even greater in an interconnected world where the publicity of the trial could prove disastrous to the corporation’s reputation. Hence, corporations might be incentivized to settle although petitioner‘s claim chances of success would be uncertain. As a result, the fear of ATS litigations might prove dissuasive enough not only to induce corporations to fully comply with human rights but also to use its economic might to leverage the forum state to do so. Most corporations have deep pockets and are often wary of fighting ATS’ claims on aider and abettor principles. The economic risks might prove helpful to human rights lawyers when considering a settlement. In the end, the ATS’ extraterritorial reach may result in increased human right’s protection.
On the other hand, however, the ATS’ extraterritorial reach runs the risk of being portrayed as a renewed manifestation of American imperialism. Perhaps would the ATS receive greater acceptance, were case-law to gain in precision as to the adequate level of involvement needed to cause corporate liability on aider and abettor principles. Foreseeability and acceptability often work hand in hand.
Both U.S district courts and appellate courts had been wrestling for too long with those difficulties in applying the ATS. It was time for the U.S Supreme Court to provide a legal framework for interpreting and possibly curtailing the ATS’ overbreadth.