My question has a one-word answer: Congress. The explanation, however, takes a few pages. As nearly every reader of this Journal knows, the Alien Tort Statute (ATS) is a one-sentence law enacted by Congress in 1789 that reads: "[t] he 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)
Enacted as part of the Judiciary Act of 1789, which was passed soon "alter ratification of the U.S. Constitution, the ATS was intended to show European powers that the new nation would not tolerate violations of its treaties or the "law of nations," especially when foreign ambassadors or foreign ship owners were assaulted by U.S. citizens. The purpose was to avert unnecessary tensions between the United States and Europe: America would not harbor scofflaws. The immediate concerns were attacks against foreign ambassadors; piracy on the high seas and safe conduct for foreign diplomats were thrown in for good measure.
Following this Congressional declaration of good behavior, the ATS remained largely unnoticed and unused for almost 200 years, until 1980, when the Second Circuit Court decided Filartiga v. Pena-Irala. (2) Since then, mass tort lawyers and human rights advocates have explored many avenues in their attempt to resurrect the ATS and extend its scope far beyond whatever was imagined in 1789. More than 120 suits have been filed alleging wrongful acts in sixty foreign countries. (3)
The suits share common features:
* They imaginatively claim that the law of nations embraces offenses that were certainly not recognized under that label in 1789. The alleged wrongful acts go well beyond the eighteenth-century short list of ambassadorial rights, safe conduct, and piracy, and …