Two Myths about the Alien Tort Statute

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ABSTRACT

In Kiobel v. Royal Dutch Petroleum Co., the Supreme Court applied the presumption against extraterritorial application ofU.S. law to hold that the Alien Tort Statute (ATS) did not encompass a claim between aliens for misconduct that occurred in another nation. Without much elaboration, the Court stated that the ATS only encompasses claims that "touch and concern the territory of the United States ... with sufficient force to displace the presumption. " As it did in Sosa v. Alvarez-Machain, the Kiobel Court purported to rest its decision on the original public meaning of the ATS when enacted in 1789. The Court, however, misperceived the original meaning of the statute by accepting two mistaken historical claims about the ATS advanced by academics and lower courts. First, the Court accepted the notion that incidents involving the rights of ambassadors prompted the First Congress to enact the ATS. Second, the Court endorsed the idea that the ATS was originally meant to cover only three "torts" that corresponded to the three criminal offenses against the law of nations emphasized by Blackstone in his Commentaries--namely, torts against ambassadors, violations of safe conducts, and claims relating to piracy. Both propositions lack substantial support in the historical record and oversimplify the political context in which the statute was enacted. To address incidents involving ambassadors, the First Congress enacted distinct jurisdictional and criminal provisions, including vesting original jurisdiction over claims by ambassadors in the Supreme Court. Indeed, the First Congress enacted specific jurisdictional and criminal provisions to address all three of the "Blackstone crimes. " The ATS served a different purpose. Congress enacted the statute to cover a distinct category of claims by foreign citizens against U.S. citizens for acts of violence that none of these other provisions adequately addressed. The Court's reliance on these two myths in Sosa and Kiobel led it to misconstrue the ATS and, in certain respects, to unduly narrow the statute's application. In future cases, the Court should abandon these myths and recognize that the ATS was originally meant to apply (1) to a broader range of tort claims by aliens, and (2) only to claims against U.S. citizens--a jurisdictional limitation that the Court has yet to address.

INTRODUCTION

The Supreme Court has interpreted the Alien Tort Statute (ATS) in only two cases, both decided in the last decade. In both cases, the Court endorsed two myths about the ATS advanced by lower courts and academics. The first myth is that assaults on foreign ambassadors during the Confederation era prompted the First Congress to enact the ATS. The second myth is that Congress enacted the ATS in order to provide civil redress for three English crimes identified by Blackstone to punish violations against the law of nations. On closer analysis, neither proposition finds substantial support in the historical record. Rather, available materials suggest that the ATS was designed to remedy a distinct and historically important type of law of nations violation well known to the First Congress, but mostly overlooked today--namely, one nation's failure to redress violence by its citizens against the citizens of another nation.

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." (1) Litigants and judges rarely invoked this statute for nearly 200 years. Starting in 1980, certain lower federal courts began reading the ATS to allow aliens to sue other aliens in federal courts for violations of customary international law that occurred outside the United States. (2) In two cases this past decade, however, the Supreme Court interpreted the statute more strictly to deny relief. …