The Three Lives of the Alien Tort Statute: The Evolving Role of the Judiciary in U.S. Foreign Relations

Article excerpt

ABSTRACT

This Article explains how the Alien Tort Statute (ATS) began in the late eighteenth century as a national security statute that the First Congress and early federal district judges saw as a way to afford damages remedies to British merchants, creditors, and other subjects whose persons or property were injured under circumstances in which treaties or the law of nations assigned responsibility to the United States. Torts committed within the United States by private American citizens were the most likely such circumstances. The ultimate aims of the statute were to avoid renewed war with Great Britain and the other European powers and to encourage commerce and trade with the same. Two centuries later, the ATS was reborn as an international human rights statute at a time when the United States had become a global superpower with a global human-rights agenda during the administration of President fimmy Carter. Now that the Supreme Court's holding in Kiobel v. Royal Dutch Petroleum Co. has undermined the international human rights vision of the ATS, this Article suggests that the statute be used once again as a way to afford aliens money damages when they suffer torts under circumstances where the United States bears sovereign responsibility under contemporaneous international law.

INTRODUCTION

The nineteen key words of the Alien Tort Statute have survived intact since 1789: a U.S. district court has original jurisdiction of a suit brought by an "alien ... for a tort only ... in violation of the law of nations or a treaty of the United States." (1) But the statute has lived two different lives so far, and the U.S. Supreme Court's decision in Kiobel v. Royal Dutch Petroleum Co. (2) will likely give birth to another.

This Article examines the past (1789-1795), present (1980-2013), and future (2013-) of the Alien Tort Statute (ATS) as a case study in how the role of federal judicial power in U.S. foreign relations and policymaking has evolved. The focus will be on how the statute and its implementation over time must be understood not only in terms of the traditional lawyerly tools of statutory interpretation and development through case law, but more broadly as it relates to the changing global context and the standing of the United States in the world.

The ATS was enacted in 1789 as a national security statute affording aliens access to newly created federal district courts to obtain damages for noncontract injuries to their persons or property for which the United States bore responsibility under contemporaneous international law. (3) One such law of nation obligation at the time was something William Blackstone called a general implied safe conduct. "The general implied safe conduct [was] an extraordinarily broad protection for aliens, essentially converting any injury to their person or property within a country into an international law violation by virtue of the fact that the victim was a friendly or neutral alien. In America of 1789, this would have covered every citizen or subject of a European state since the United States was not then at war." (4) The underlying aims were to keep the peace with the European great powers and to encourage their merchants and bankers to do business with the people of a largely agrarian revolutionary state by promising a credibly neutral forum for dispute resolution in cases of property damage or personal injury. (5) Even today, a high priority for developing nations, particularly those born of revolution or war (the United States was the product of both), is creating national fora for dispute resolution that appear fair to potential foreign lenders, investors, and businesses.

Two centuries later, the national security statute was reborn as an international human rights statute. The original reasons for the ATS were long forgotten as the United States had become a great power, and then a superpower and the undisputed hegemon of the world economy. …